Aleta Gooley & Anor v Brett Gooley

These proceedings concern the estate of the late Melville Gooley (the deceased) who died 23 December 2017. The deceased’s daughters, Aleta Gooley and Melinda Foley (the plaintiffs), by way of summons dated 9 July 2018, seek a Grant of Probate of the will of the deceased made on 18 July 2014 (2014 Will) or in the alternative the latest in time of six earlier wills made by the deceased after a will made on 15 June 2012. The deceased’s son, Brett Gooley (the defendant), by way of cross claim, seeks a Grant of Probate of the will of the deceased made on 1 February 2010 or in the alternative the will of the deceased made on 15 June 2012. The dispute rests nearly entirely on whether the deceased had the testamentary capacity at the time in which the relevant wills were made.

The matter first came before me in the expedition list on 31 May 2019. I was informed at that time that the grandson of the deceased, Charlton, had commenced family provision proceedings on 20 December 2018. Charlton was aged 11 and suffers from severe autism spectrum disorder. He is currently under the care of his older siblings and has significant and urgent financial and care-based needs. The family provision proceedings could not be decided until these proceedings have concluded. I therefore made orders expediting the matter.

The matter was initially listed for five days from 18-22 November 2019 then a further five days from the 2-6 March 2020 for the completing of evidence and final submissions. I heard an additional day of evidence on 18 December 2019. Further dates were set aside in case they were required, namely 12 and 13 March and 16-20 March 2020. Towards the end of 2019 I suggested that the parties attempt to mediate. That was initially opposed by the plaintiffs but a mediation was eventually scheduled for 24 February 2020.

However on 21 February 2020 I was informed that the plaintiffs had terminated their entire legal team, solicitors and counsel, and that it was unlikely the hearing could proceed on the scheduled dates. The plaintiffs brought an application to adjourn the balance of the hearing on 26 February 2020 which I granted.

Prior to the matter recommencing the defendant brought what I would call satellite proceedings against the plaintiffs, seeking an order under s 73 of the Probate and Administration Act 1898 (NSW) appointing an administrator pendente lite in respect of all of the assets of the deceased estate and other relief, which were heard by Williams J (see Gooley v Gooley [2020] NSWSC 798; Gooley v Gooley (No 2) [2020] NSWSC 1018).

The matter recommenced before me on 24 August 2020 and in the end ran for a total of 17 days.

The deceased was married to Joyce Gooley. Together they had five children, Brett, Melinda, Janine, Damon and Aleta. Damon died on 21 August 1981. The deceased passed away on 23 December 2017. His wife, Joyce, predeceased him, having died in 2000. Janine died in February 2018.

The deceased left school after completing year 9 and studied accounting. Over many years he amassed considerable wealth through a family business consisting of a fairly complicated web of companies and various properties. The deceased’s personal estate was estimated to be some $30 million (Affidavit of executors Aleta Gooley and Melinda Foley, 5 November 2018). However the defendant contends the value of the estate is in excess of $90 million (Affidavit of Brett Gooley, 27 May 2020).

The defendant, Brett, has practiced as a General Medical Practitioner since 1978, including acting as the deceased’s GP for the majority of time between 1979 and 2006. The deceased assisted the defendant financially in obtaining his medical qualifications as well as providing some financing in relation to the acquisition and development of medical centres. In 2005 the deceased gave the defendant $205,000 as a birthday present however the defendant says he repaid this sum some months later. The deceased occasionally sought repayment of money from the defendant and in 2007 threatened to sue him in relation to moneys loaned.

It appears that the relationship between the deceased and his children, in particular Brett and Janine was strained from time to time. He appears to have had a more harmonious relationship with Melinda and Aleta, particularly in more recent years. However the notes of private carers employed to provide 24 hour live in care to the deceased from November 2012 record that their relationship with their father was also troubled at times.

The deceased was a prolific will-maker in his later years. He made at least 11 wills after the death of Joyce in 2000. The wills can be summarised as follows:

He may also have made a further will dated 30 June 2008. It appears that there was a general intention on the part of the deceased to give to each of his children one company and with it the real property that that company held.

As I have said, the defendant acted as the deceased’s GP for much of the time between 1979 and 2006. From about the 1990s Dr Phillip Barrett also acted as the deceased’s GP.

The deceased had several ongoing health issues, as will be revealed in the chronology below. He had several relevant hospital admissions. From November 2012 he received 24 hour in home care when he was not in hospital. Dr Chris Dedousis, a geriatrician, was involved in the deceased’s care from mid 2012. He managed the deceased both as an inpatient and outpatient in conjunction with Dr Robert Smith, cardiologist.

Mr John Colley was the deceased’s long term accountant and Mr Gary White was the deceased’s lawyer for a period of time in the mid 1990s and then from approximately December 2011 until June 2015.

Both sides provided comprehensive chronologies cross referenced to contemporaneous documents, including hospital notes and reports, notes kept by the deceased’s private in home carers (the Private Care Notes), as well as letters, emails and faxes sent by the deceased, the parties to these proceedings and the deceased’s treating practitioners. The defendant also provided a comprehensive annexure to his closing submissions titled “The Facts” which sets out the background to the proceedings in narrative form. The plaintiffs provided an additional schedule of notes from hospital records and bundles and schedules concerning handwritten notes made by the deceased.

The events identified in these chronologies and schedules, including that the various records and notes were made, are largely uncontroversial (save for the various submissions made in the defendant’s “The Facts” annexure). However the significance of what was recorded must be considered in the context of the opinions of the expert witnesses and the other evidence (see below). Due to the importance of scrutinising the deceased’s medical condition and circumstances surrounding the execution of each will I have, unashamedly reproduced much of what was included in the parties’ chronologies below and find the following facts. The chronology is necessarily long given the number of wills the deceased made. Some of the events set out below may appear in isolation of little consequence, but I have included them so as to provide as comprehensive a picture as may be obtained from the contemporaneous materials.

In 1990 the deceased suffered several transient ischaemic attacks. On 24 August a CT scan was conducted, with no abnormality apparent. However several days later he experienced dizzy spells and weakness down the left arm.

In April 1992 Dr Barrett formed the view that the deceased suffered atrial fibrillation with a controlled ventricular response, moderate to severe mitral stenosis and mild to moderate regurgitation with rigid valve mechanism.

On 16 August 1993 the deceased made a handwritten note which was recorded in the defendant’s medical notes: “I do not hold Brett responsible for my stroke if I don’t (sic) continue with my warfarin. Recommencing 17/8/93 [signed]”.

On 26 April 1994 Dr J D Woolridge, cardiologist, sent the defendant a letter suggesting that the deceased be put on a “low dose Warfarin”.

A CT scan report of 16 April 1998 in relation to the deceased stated, “There is minor patchy periventricular deep white matter hypodensity, particularly around the frontal and occipital horns. This is consistent with chronic small vessel ischaemic disease.”

On 22 April 1998 Dr Paul Salmon, radiologist, sent the defendant a letter reporting on a Cerebral Digital Subtraction Angiography examination of the deceased. It identified, “Mild stenosis immediately distal to the origin of the right subclavian artery. Minimal Stenosis in the right internal carotid origin but no other abnormality.”

On 24 April 1998 Dr Woolridge sent a letter to the defendant reporting on a referral of the deceased following a dizzy spell and two blackouts. Dr Woolridge said, “He is clearly manifesting vestibular symptoms… He has been slightly deaf over the right ear for some time.”

The deceased made a will dated 19 April 2001.

On 2 May 2003 the defendant by letter assigned and guaranteed payment to the deceased of $408,146.68 in exchange for advancing $300,000.

On 25 May 2004 the defendant accepted an appointment as attorney for the deceased under an Enduring Power of Attorney.

On 1 June 2004 the deceased sent the defendant a letter in which he thanked the defendant and his wife for attempting to relocate him but declined on the basis that “the one thing I have really wanted for at least 25 years is to walk along North Cronulla beach every day ‘time’ my greatest enemy has helped to elude me this dream.”

On 29 July 2004 a cardiologist, Dr Smith, sent a letter to the defendant reporting on a review of the deceased’s cardiac status. It said:

The deceased made a will dated 11 October 2005.

On 6 February 2006 the defendant wrote a letter to the deceased regarding an assertion made by the deceased that the defendant had not repaid all funds loaned to him:

On 22 February 2006 the deceased executed a Deed of Revocation of General and Enduring Power of Attorney:

A St George Bank cheque stub for the amount of $100,000 was made out to Goold Enterprises Pty Ltd on 10 April 2006.

On 16 August 2006 the deceased made a handwritten notation on the defendant’s 2 May 2003 letter:

The defendant made his own handwritten note on the letter dated 30 September 2006: “Paid KB 30/9/06 #000932 Goold Enterprises”.

A St George Bank cheque stub was made out to Goold Enterprises for the amount of $8,146.68 for “outstanding interest (MWG)” and dated 30 September 2006.

On 11 January 2007 the deceased sent a fax to the defendant:

On 7 June 2007 the deceased sent a fax to the defendant:

On 1 August 2007 the defendant wrote a letter to the deceased:

The deceased made a will dated 9 August 2007. It appears that he may also have made a will dated 30 June 2008.

On 1 June 2008 the deceased and Aleta executed a deed regarding Dama Enterprises Pty Ltd which states:

And on 10 July 2008 the deceased and Melinda executed a deed in similar terms but in relation to Goold Enterprises Pty Ltd.

In 2009 (date unknown) the defendant sent the deceased a fax:

On 11 February 2009 Aleta signed an Appointment of Enduring Guardian.

On 16 January 2010 the deceased sent the defendant a fax:

The deceased made a will dated 1 February 2010. As I have noted, the defendant’s primary case is that probate ought to be granted of this will. It is the last will of the deceased’s that was prepared by a solicitor other than Mr White. It divides the estate roughly equally between the deceased’s surviving children and the defendant is the named executor.

On 3 February 2010 the defendant responded to the deceased’s 16 January fax:

On 7 February 2010 the deceased sent another fax to the defendant detailing attempts he had made to see his grandchildren. He then stated, “I have since received some invitations to attend functions at school, but have declined. You are right the children are innocents.”

On 19 November 2010 Mr Colley stated in a memo addressed to the deceased:

On 25 November 2010 Mr Colley made another memo regarding various companies:

On 26 November 2010 a Dr Eugene Loh sent a letter to Dr Barrett setting out the deceased’s request for a low dose of warfarin.

On 27 November 2010 the deceased sent the defendant a fax stating, “Should I die you had better keep Motasea P/L she (Janine) cannot handle money.”

In early 2011 the relationship between the defendant and the deceased appears to have been quite harmonious. In February 2011 the deceased wrote to the defendant providing him with instructions to access several of his personal and company bank accounts.

On 15 May 2011 John C Colley & Co sent the deceased a letter setting out Mr Colley’s advice and recommendations regarding a restructure which included:

On the first page of the letter there is a handwritten annotation by the deceased: “Brett This is from Colley. It may help your knowledge. I will not be changing anything. Besides I do not have the cash. Dad”.

On 19 May 2011 Mr Colley sent a further letter to the deceased:

On 20 May 2011 Mr Colley sent a memo to the deceased acknowledging receipt of a fax from the deceased and continuing, “So far, have not had the opportunity to give it any more than a cursory glance. My first impression is that you are still trying to create a reality again ‘shuffling the deck chairs’”.

On 22 May 2011 Mr Colley wrote again to the deceased:

On 16 August 2011 the deceased sent the defendant a fax regarding the deceased’s “whole of life” policy with a handwritten note: “Dear Brett, For you to collect on my Demise Dad”.

In October 2011 the deceased wrote to the National Australia Bank (NAB) noting that the defendant would be the sole signatory of a new account with NAB in the name of Breda Pty Ltd.

On 26 April 2012 the deceased sent the defendant a fax:

Sometime it seems around the end of April 2012 Mr White received a handwritten note from the deceased stating “Gary, I trust you can decipher the writing… Please do in ### legal terms. Each of my children have been given gift of real estate…” The deceased attached a handwritten will. In it he noted, “I have already distributed the majority of my daughters’ inheritance”. In this judgment “##” is used to indicate sections of handwritten notes which are indecipherable.

Mr White prepared a new will and on 9 May 2012 faxed it to the deceased with a two page letter containing some further questions for him in relation to the will. On 11 May 2012 the deceased sent Mr White a fax consisting of a handwritten page headed, “Your Questions Re Will”, and a copy of Mr White’s 9 May letter on which he had made handwritten comments.

On 12 May 2012 the deceased sent Mr White a fax containing a further suggestion for amendment to the will, “is it possible at my demise to give 127 Elouera Rd. to my granddaughter Tahnee Carroll. She is residing in a flat there now”. The deceased made further handwritten amendments on the draft will which he sent to Mr White on 6 June 2012 and 14 June 2012.

The deceased executed a will on 15 June 2012. This is the will the defendant propounds in the alternative to the 1 February 2010 will. The main differences between this will and the 1 February 2010 will are:

There is a copy of this will in evidence with the word “REVOKED” written across the second page.

On 18 June 2012 Mr Colley sent a letter to the deceased enclosing ASIC Form 361, Registered Agent Ceasing to Act, for each of the companies:

In the letter Mr Colley said:

A Discharge Referral note dated 10 July 2012 records that the deceased was admitted to Kareena Hospital on 26 June 2012 until 3 July 2012 for drainage of a facial abscess and removal of a tooth. A Nursing Discharge Summary/ Transfer Form dated 3 July 2012 also records that the deceased was admitted on 26 June 2012 due to a tooth infection.

On 27 June 2012 Mr Colley sent a letter to the deceased:

A Progress/Clinical Note dated 29 June 2012 records that the deceased “told staff that he doesn’t want daughter Janine to visit”.

Emergency Documentation notes from Sutherland Hospital dated 6 July 2012 record:

A Discharge Referral Baseline document dated 6 July 2012 records that the deceased required a CT Scan for “acute confusion” and CXC for “confusion”.

In a Progress/Clinical Note dated 7 July 2012 nursing staff recorded at 21:00, “Difficult Pt. Believes he was kidnapped by his children and forced here.” Another note recorded at 09:40 states, “Pt uncooperative with ##”.

A Progress/Clinical Note recorded on 8 July 2012 at 10:40 states, “Pt is resistive to care – Pt refusing to have bloods taken despite being informed of the importance of having these done”. Further at 13:00, “Pt refusing monitoring…patient seem orientated to time and place but is making sporadic accusations re hospital and then talking about people outside”. A later entry states, “patient remain agitated and aggressive at times can be confused and vague at times inappropriate re conversations”.

The Progress/Clinical Notes from 9 July 2012 include a doctor’s note:

At 11:30 nursing staff recorded, “Pt refusing to have bloods collected this AM”. At 14:30, “Pt ...agitated at times… Pt wanting to d/c but after discussion with Dr’s & daughter (Janine), he has decided to remain in hospital”. And further at 20:35, “States is leaving hospital tomorrow, regardless of what doctors say”.

The Patient Handover Care Plan dated 9 July 2012 stated, “Restart warfarin tomorrow”.

The deceased was discharged from Sutherland Hospital on 10 July 2012. A Discharge Referral Note of that date includes the following:

The Discharge Referral Baseline document of the same date noted, “Follow up with a GP in 3-5 days for review and restart warfarin”.

On 31 July 2012 the defendant sent a letter to Dr Barrett stating that he saw his father at 10.15pm on 31 July 2012. Suggestions for follow up included:

Also on 31 July 2012 the deceased was found delirious in the foyer of his block of units by other residents and on 1 August 2012 the defendant had the deceased admitted to St George Private Hospital. In a St George Private Hospital Patient Falls Screening Tool dated 1 August 2012 the answer to the question, “Is the patient confused? (i.e. unable to make purposeful decisions, disorganised thinking and memory impairment)”, was checked “yes”.

On 1 August 2012 a nursing note was made in St George Private Hospital Progressive Patient Notes stating the deceased was “pleasantly confused”.

On 3 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording the deceased was “disoriented [with] times”. He had a fever in the morning (of 40 degrees) and his creatine was said to be up (135). He was given Phenergan for rashes that day. Further notes from that day record:

On 4 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes stating that the “Patient has been disoriented and confused overnight. Wandering about and taking his gown and ? off frequently”. At 15:00 he was said to have been “coherent”.

On 5 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “yet another unsettled night. Patient up wandering about his room naked removing his telemetry. Patient may benefit from a geriatric assessment”. A later entry reads, “bit confused/disorientated at times”. At 21:30 his temperature was recorded as 38.7 degrees.

On 7 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “confusion of unclear cause …currently orientated, speech normal, does not appear confused”. The notes also record the deceased had a staph infection.

On 8 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording the deceased “appears confused at times”.

Also on 8 August 2012 Melinda signed an acceptance of appointment as Enduring Guardian.

On 9 August 2012 Dr Smith noted in the St George Private Hospital Progressive Patient Notes that the deceased was “much improved in all respects… afebrile… needs CT scan of maxilla”. A later physiotherapy note states, “N/staff report he can get confused and would prefer patient to supervise mobility around ward on a daily basis”. A nurse recorded, “patient needs reminding that he has a picc line insitu tends to forget it is there. Seems confused at times”.

On 11 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording that a nurse “walked in to patients room and found picc line hanging off the IV stand. Patient stated he couldn’t remember pulling it out”.

On 12 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “Picc line on floor. Patient denies taking out”. A later entry states, “Patient remains alert and pleasantly confused ++… pts body reddened/rash- QV cream applied to reduce itching”. And at 18:00, “can Phenergan be changed to something less sedating?”. A note made at 20:00 states that “Phenergan ceased” and Telfast was administered. The deceased was “less itchy this shift”.

On 13 August 2012 Dr Smith excluded a diagnosis of endocarditis.

On 16 August 2012 the deceased was transferred to President Private Hospital for rehabilitation. A President Private Hospital Falls Risk Assessment Tool dated 16 August 2012 records, “some confusion”, in relation to the deceased. President Private Hospital Clinical Notes of the same date note, “some confusion and [decreased] hearing.” The note also incorrectly states that the deceased’s medical history included endocarditis.

Further on 16 August 2012 the deceased underwent an initial assessment with the Functional Independence Measure (FIM). The deceased was said to have required supervision with aspects of communication including his comprehension and expression and with aspects of his social cognition, including social interaction, problem solving and memory.

President Private Hospital Clinical Notes dated 17 August 2012 record that the deceased was “living independently but ? struggling with this and considering services on discharge”.

President Private Hospital Clinical Notes made on 18, 20, 21, 22, 23, 25 and 26 August 2012 record that the deceased was “alert and oriented”. He had a fall against the wall in the bathroom on 21 August and sustained two skin tears to his left upper arm.

In a President Private Hospital Case Conference Management Plan dated 24 August 2012 a note under the section headed, “Medical/nursing personal care, ADL’s”, reads, “? Frontal”.

President Private Hospital Clinical Notes dated 27 August 2012 include an occupational therapy note stating, “Completed car transfers. Client needed constant prompting this pm 2 * transfers. Spoke with Professor Smerdly – To do Frontal Battery assessment in / 17”. An ACAT Assessment completed that day states the deceased had a “history of confusion and disorientation when unwell in hospital”.

A nursing note in the President Private Hospital Clinical Notes dated 28 August 2012 records that the deceased was “capable of washing self but required verbal prompting with washing certain area of body, drying and dressing self”. An occupational therapy note states, “Started to complete Montreal Cognitive Ax. Client kept dozing off, Client scored 7/11 so far. Client score of 26/30 is considered normal. Daughter requested info on private services”.

Occupational therapy notes from 29 August 2012 document a Montreal Cognitive Assessment (MoCA) score of 19/30 (where scores above 26/30 are considered to fall within a “normal” range). However closer examination of the response sheet reveals a number of instances of incorrect scoring, giving the deceased a higher mark than he should have had. The correct mark was 17 or 18/30.

In a Referral Sheet addressed to MJ Modification Services dated 29 August 2012, under the heading, “Additional information”, the box “cognitive issues/dementia” was checked.

The deceased was noted to be “dithery” at the microwave that day. On 30 and 31 August 2012 he was noted to be “alert and oriented”.

On 3 September 2012 Mr Colley emailed Melinda:

The deceased had day leave from President Private Hospital on 4 September 2012. A President Private Hospital Acknowledgement of Responsibility Form dated 4 September 2012 and signed by the deceased evidences this.

According to a Sutherland Aged Care Client Record dated 4 September 2012 the deceased needed help or supervision with self-care, movement activities, communication, health care tasks, transport, domestic assistance and meals. The following issues were also recorded:

The deceased made a Will dated 4 September 2012. Three changes were made by the 4 September 2012 will to the 15 June 2012 will:

The deceased, Melinda and Aleta also signed an Enduring Power of Attorney on this date. Mr White says he does not have “any recollection of the circumstances in which [he] received instructions for these documents, or any notes or records relating to them” (Affidavit of Gary Alan White, 2 November 2018 [22]).

The deceased made the following handwritten note it seems around 2 and 4 September 2012:

The deceased was discharged from President Private Hospital on 6 September 2012.

He was admitted to Sutherland Hospital on 12 September 2012. Notes relevant to the deceased’s social cognition, state of confusion, memory and mental state were recorded in a Sutherland Hospital Admissions and Discharge Risk Assessment document. The answer to the question, “Is the patient likely to have self care problems? (e.g. walking, bathing, dressing, wound dressings)?” was checked “yes”.

In the part relating to “Cognition”:

Further in the part relating to “Mental State” the answer to the question, “Is the patient disorientated? (i.e. lacking awareness, being mistaken about time, place or person)”, was checked “yes”.

On 12 September 2012 the deceased underwent a CT scan. The CT Brain Final Report of that date recorded that a cerebral CT scan had revealed evidence of a recent right frontal lobe infarct:

Sutherland Hospital Progress Notes dated 13 September 2012 state, “Pt alert and vague”.

The deceased was transferred to Kareena Private Hospital on the afternoon of 13 September 2012. Kareena Private Hospital Notes dated 13 September 2012 note, “NB Cerebral CT Scan… frontal lobe, other belat. Chronic Δ”. A nursing note also records, “PT displaying signs of confusion”.

On 14 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 18:30 that “Pt at times becoming irritable and verbally abusive”.

On 15 September 2012 Dr Dedousis recorded in the Kareena Private Hospital Notes:

On 15 September 2015 a note was made in the Kareena Private Hospital Notes recording dizziness.

On 16 September 2012 there was a chain of emails sent between Melinda and Mr White, copying in Aleta and Mr Colley. Melinda set up a meeting to be held at Kareena Private Hospital on 19 September 2012 with Aleta, Mr Colley and Mr White for the signing of papers which appear to be powers of attorney and a transfer and contract.

On 17 September 2012 a note was made in the Kareena Private Hospital Notes: “Pt full care with ADLs… Pt occasionally confused.” A nursing note made on the same date states, “Alert, confused @ times… both legs still erythematous… visited by daughters”.

Also on 17 September 2012 the defendant made his first application to the Guardianship Tribunal. The health related factors said to affect the deceased’s decision making capacity at that time included:

The application was to have the deceased discharged to the defendant’s care for one to two months at Drummoyne. The reason being that while the deceased was under the care of Aleta and Melinda he had seven hospital admissions between June and September 2012 with his return home lasting only four days before he had a fall fracturing his hip.

On 18 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 14:00 that the deceased was “confused/cooperative… visited by daughter”, and at 21:00, “pt confused this shift, pt becomes easily agitated and worked up”.

Also on 18 September 2012 Dr Smith sent a letter to the defendant identifying the need for rehabilitation and respite and stating, “in the very long term he may well need more intensive support which might not be able to be adequately instated at home but this remains to be seen.” The letter also noted that the deceased:

On 19 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 12:00 that “Pt showered full assistance… Pt at times inappropriate”. Discharge planning notes made at 14:10 said:

The following note was also made: “Pt confused ++ tonight, kept saying want to go home”.

On 19 September 2012 a Kareena Private Hospital Clinical Plan of Care document was completed. The deceased’s cognitive status was checked as “not intact” (having been intact on 13-18 September).

On 20 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 00:45, “Pt confused”. At 14:25 a nurse recorded, “on and off confusion but sensible when established rapport. Patient do not want to go home in his son’s place as he stated”. At 21:30, “PT slightly confused this shift”. And 22:45, “…rashes present on all body… itching too. Patient and other staffs stated this started 3 days ago. Bruises on back. Patient is on antibiotics”. And at 22:45, “Patient was very anxious…”.

On 21 September 2012 a Kareena Private Hospital Medical Ward Occupational Therapy Assessment was completed. It appears to set out what assistance the deceased would need if he was to be discharged. It was completed by M Zammit. Next to the question heading, “cognition/emotional status (mood, orientation, memory, planning etc)”, the answer given was “confused”.

Also on 21 September 2012 an occupational note was made in the Kareena Private Hospital Notes at 15:10 stating, “PT’s cognition unpredictable i.e. unable to follow 3 step commands at times”. An earlier nursing note recorded at 14:30 states, “Pt showered full assistance”.

On 22 September 2012 a note was made in the Kareena Private Hospital Notes at 04:00 that the deceased was “Mild confused earlier this shift… itchy, moisturising cream applied all body… Still confused”. Dr Dedousis noted later that the deceased was “alert” and “orientated”.

Also on 22 September 2012 there was an email chain between Mr Colley and Melinda which included a letter from Mr Colley to Melinda and Aleta explaining why an account was issued to them rather than the deceased. It set out that Mr White considered that Melinda and Aleta may have been entitled to reimbursement:

Melinda said in an email to Mr Colley:

On 23 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 12:00 that the deceased “Has remained confused most of shift”.

On 24 September 2012 Dr Dedousis recorded the following in the Kareena Private Hospital Notes:

It is not clear how the deceased’s decision making abilities were evaluated.

A discharge planning note made on the same day recorded:

On 24 September 2012 Dr Barrett sent a letter to the Guardianship Tribunal stating that the deceased was of sound mind. He also stated that the last occasion on which he saw the deceased was 11 September 2012.

Janine indicated in a chronology that she prepared (and which her son, Tyrone, located on her computer after her death: see Affidavit of Tyrone William Philip Gooley-Carroll, 20 March 2) that on 24 September 2012 Dr Dedousis said during a meeting that the deceased only had a 40% chance of survival and informed everyone that no lawyers or accountants were to be in the hospital again.

On 25 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 22:25, “PT is alert but can be confused at times”. The deceased made a handwritten note:

At some time before 26 September 2012 a Rehabilitation Services Referral to Calvary Rehab Unit was completed by Kim Boyd, the discharge planner for Dr Dedousis (the patient was admitted to Calvary Hospital on 26 September 2012). In response to the question, “Does the patient have any communication difficulty?”, the answer given was “vague at times”. Underneath the heading, “Outline any cognitive and/or behavioural issues”, the following was written: “short-term memory problems at times. Cognition unpredictable at times”.

On 26 September 2012 a Calvary Healthcare Sydney Discharge Summary Nursing form was completed by S Lam, an “RN”. The deceased’s diagnosis was recorded as “fall with fracture of the left greater trochanter and post- operative confusion and delirium…” The section of the form relating to “Relevant Medical History” was completed with the words, “AF. OA. HT. Dementia”. Next to the phrase “cognitive status”, where the options to select were “oriented”, “disoriented”, “alert”, “drowsy”, the words “oriented” and “alert” were circled and a handwritten annotation, “can be vague”, was written above those words.

Also on 26 September 2012 the deceased obtained a score of 20/30 on a Mini Mental State Examination (MMSE). The Calvary Hospital MMSE form records that he was wearing glasses and the test was performed in a quiet room. His scores were as follows:

He was orientated to the month but not the day of the week, year, season or date. He was orientated in place. He could immediately repeat the names of three objects but was unable to recall any of the objects minutes later. He could spell “WORLD” backwards with one error. He could name a watch and a pen. He could repeat a well known phrase. He could close his eyes. His response to a sentence writing task was notably concrete in that he copied the instruction, “Any complete sentence”. There was evidence of visuospatial impairment in his copied drawing attempts. His clock drawing showed poor planning and his attempt to place the clock hands showed further evidence of concrete thinking (with the words “20 to” inserted in place of the minute hand).

A nursing note made in Calvary Health Care Sydney Progress/Clincal Notes also records, “patient alert and confused. MMSE 20/30”. A further nursing note was made: “Not listening to any form of instruction or information. Totally non-compliant with call bell use. ## time spent explaining phone and telephone use protocol to find patient talking into telephone ## times with no one there”.

The defendant sent a letter dated 26 September 2012 to the Guardianship Tribunal outlining his attempt to visit the deceased on 24 September, the fact that his father initially greeted him and that he was later advised by the charge sister to leave the hospital:

On 27 September 2012 a nurse recorded in the Calvary Health Care Sydney Progress/Clinical Notes, “patient alert and confused…non-compliant with buzzer”. The deceased made a handwritten note addressed to Dr Dedousis:

On 28 September 2012 a nurse recorded in the Calvary Health Care Sydney Progress/Clinical Notes at 17:45, “WLGillet AHNM T/C from Dr Dedousis re: pts wishes for son not to have access to Pt. Staff informed. Notes now kept in medication room. A further note was made at 11:30: “Patient [alert?] though forgetful @ times”.

On 29 September 2012 a note was made in the Calvary Health Care Sydney Progress/Clinical Notes that the deceased had attempted to shower himself at 03:30, apparently unaware of the time. At 05:40 he was very itchy and sorbolene cream was applied.

On 1 October 2012 he was noted to be “alert and orientated”.

On 2 October 2012 the following note was made in the Calvary Health Care Sydney Progress/Clinical Notes:

A Rehab OT Initial Assessment noted the deceased was independent with his medications, “however unsure if he forgets”. The deceased was also noted to require “prompting to recall”.

On 3 October 2012 Karen Edwards, “CEO/DON”, recorded the following in the Calvary Health Care Sydney Progress/Clinical Notes:

A note in the Calvary Health Care Sydney Progress/Clinical Notes also records that the deceased was seen by “Dedousis, Ranjan and Miller” at approximately 11:30 on 3 October 2012:

Later that day Ms Edwards recorded:

The file note made by Ms Uhlmann recorded that Ms Edwards informed the defendant that the deceased would not agree to be examined by a neuropsychologist or to be visited by him and that the hospital would respect his wishes. It also states:

The note then sets out that the defendant waited in the waiting area while Ms Ulhmann attempted to seek instructions from the deceased but that she did not go into his room as both of his daughters were present. Ms Edwards informed the defendant of this and he left shortly afterwards.

The defendant also made a handwritten note of this meeting. It records he was told:

His note also records that he asked if this advice could be confirmed with his father and that Ms Uhlmann attempted to do so but reported back that both of his sisters were with the deceased and it was therefore inappropriate to ask.

A note made at 14:30 on the same date records that the deceased was “alert and orientated.” A social work assessment was conducted with Aleta present at 15:30. It notes that the deceased had been diagnosed as being competent in making his own decisions at the time “as per Dr Dedousis”. It also records:

On 3 October 2012 Dr Dedousis sent a letter to Jill Forrester, Guardianship Tribunal Officer, in relation to the deceased’s care situation. He stated that the deceased’s delirium had settled as his cellulitis settled. There was no mention of confusion:

Also on 3 October 2012 the defendant sent a letter to the Guardianship Tribunal seeking orders for a neuropsychiatric assessment of his father.

On 4 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes that the deceased was “alert and orientated” at 07:00 but “alert and confused, c/o diarrhoea overnight” at 15:45.

On 5 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes stating:

On 8 October 2012 a social work note was made in the Calvary Health Care Sydney Progress/Clinical Notes:

On 9 October 2012 a meeting of shareholders of Motasea P/L was held. The minutes recorded that Ms Janine Gooley was appointed as director of Motasea. The deceased signed the minutes as chairman. Janine was removed as a director three months later in January 2013. The deceased was noted to be “alert and orientated” by a nurse at 15:30.

On 10 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes regarding the deceased’s attendance at “breakfast club”:

On 12 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes stating:

Also on 12 October 2012 Michelle King, Occupational Therapist, completed a Calvary Health Care Sydney Occupational Therapy Home Assessment document in relation to the deceased. In it she noted that the deceased expressed concern about his son, that he did not want his son to visit him and that he wanted to be taken to the police station to discuss options for restricting his son’s access to him. It was also noted that:

On 15 October 2012 Dr Barrett sent a letter to Whites Lawyers stating that he last saw the deceased on 11 September 2012 and that on that occasion he did not notice any significant decline in his mental state or decision making. He did not explain how he assessed the deceased’s mental capacity.

On 16 October 2012 a note was made in the Calvary Health Care Sydney Progress/Clinical Notes in relation to the delivery of a letter from the defendant to the deceased via a third party. The note, which was made at 14:35, states the letter requested the deceased “see a clinical neuropsychologist”. It also said that the report could “never be used in any proceedings against you” and continued:

The nursing note said the letter was provided to Dr Dedousis with the deceased’s consent and the conclusion was said to be:

A later note made at 15:00 records, “Discussed with NUM and nursing staff that pt should not be allowed to be contacted by any means by anyone other than his daughters Aleta and Melinda as discussed with pt and Dr Dedousis.”

The deceased was noted to be “alert and orientated” at certain times on 16, 18, 19, 21, 23, 26 and 27 of October 2012.

However on 17 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes in relation to the deceased’s attendance at “breakfast club”:

On 20 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes at 04:10:

On 25 October 2012 a social work note was made in the Calvary Health Care Sydney Progress/Clinical Notes by L Moussallom in relation to discharge:

Also on 25 October 2012 Dr Dedousis sent a letter to Mr White in response to a request for information from Mr White. He stated that he had been involved in the deceased’s care on and off for three months and continued:

On 26 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes: “patient remains confusing…staff please aware patient has been turning on the taps in his bathroom and leaving them running fully”.

On 29 October 2012 there was an email chain between Aleta and Melinda and Mr White. In one of these emails Aleta wrote:

The deceased was discharged on 30 October 2012.

On 31 October 2012 the defendant made a handwritten file note recording his conversation with Constable Ardus at Cronulla Police Station on that date:

Dr Barrett conducted a MMSE of the deceased on 31 October 2012. A hand written note at the top of the assessment sheet records a score of 28/30.

Also around 31 October 2012 the deceased made a handwritten note on instructions Tyrone made for Mr Colley in relation to “Tahnrone Pty Ltd”. The deceased wrote, “Mr Colley. Tyrone says company should be called Tytahn Pty Ltd and they should have 1 share each”.

Private Care Notes made during November 2012 suggest that the deceased refused deliveries and parcels sent to his home that he felt might be from family.

On 8 November 2012 there was an email chain between Mr White, Melinda and Aleta. At 5:49am Melinda sent an email stating:

In an email sent at 4:12pm Mr White stated:

On 10 November 2012 Mr White made a handwritten note regarding a telephone discussion with the deceased: “Trying to contact me – if trying to ring me in the office, it is Saturday!”

At some time in November 2012 the deceased moved from his family home in Cronulla to an apartment in Cronulla.

The deceased made a Will dated 12 November 2012. The changes brought about by this will were as follows:

The defendant withdrew his application in the Guardianship Tribunal on 13 November 2012.

At some time after 13 November 2012 a typed document titled “AVO” was created. It begins, “Points to refute BG claim- that there was an attempt to take an AVO out against him on 13 November 2012- AFTER the guardianship tribunal hearing”. Typed points include:

The deceased made handwritten annotations on the document:

Seemingly shortly before 16 November 2012 a Private Care Note document headed “Confidential Job Information” was created. It states:

The Private Care Note for 16 November 2012 records the commencement of 24 hour care for the deceased. A note was made stating that the deceased required assistance to take off his support stockings and rub in cream, that the carer (who arrived at 6pm) made dinner and that the carer made his bed for him.

On 18 November 2012 a Private Care Note was made stating:

On 19 November 2012 Private Care Notes were made recording that the carer assisted the deceased to put on his shorts and stockings and that:

On 20 November 2012 Whites Lawyers sent a letter to Janine stating, “Mr Melville William Gooley (‘Bill’) has requested that you refer any business correspondence or inquiry to this office rather than direct to your father.”

On 23 November 2012 a Private Care Note was made recording that “Bill refused to talk to Janine over the phone. Bill felt the walker issue was a trap”.

On 24 November 2012 a Private Care Note was made stating:

The Private Care Note for 25 November 2012 records that the deceased napped from 2:30-3:15pm in his chair, and from 3:20-4:20pm and 4:30-4:50pm in his bed.

The Private Care Note for 26 November 2012 records that the deceased drove the car out of the garage when he was not cleared to drive and that he “seemed intent on finishing off his bottle of wine”.

On 26 November 2012 the defendant sent a letter to the deceased in relation to his Guardianship Tribunal application:

On 27 November 2012 Private Care Notes were made recording that the deceased told the carer that he slept okay but was up four times during the night and that the deceased was “on phone trying to secure an appointment for driving test, in hope of getting his licence back”.

Also on 27 November 2012 Janine responded to the letter from Whites Lawyers dated 20 November 2012:

The letter also states the deceased’s two new carers “have obstructed me from being able to speak to my father”.

The Private Care Note for 29 November 2012 states, “Bill has been in his office on the phone trying to arrange a driving test most of the morning. Nothing came about regarding driving test???”.

On 30 November 2012 a Private Care Note was made recording that the deceased was in the lounge asleep on his chair while watching TV.

On 2 December 2012 a Private Care Note was made recording that:

The Private Care Note for 3 December 2012 records, “Janine came with her children and they took Bill for a walk”.

On 4 December 2012 Private Care Notes were made recording that “Brett phoned to advise he had been in contact with Russell Stevens about lessons, test etc (driving instructor)” and that the deceased refused to leave the house because he felt one of the driving instructors might call back: “No he couldn’t do that, he had to wait here at home for call”.

On 6 December 2012 the defendant sent a letter addressed to Melinda and Aleta, copying in Janine and the deceased, in which he wrote, “it is both my view and professional health opinion that dad is not fit enough to be subjected to the rigors of international travel”. The deceased made a handwritten annotation to the letter stating, “I will not be able to holiday anywhere due to the cost of legal aid to fight your rotten case. Thanks for nothing. Dad”.

On 7 December 2012 a Private Care Note was made recording that “Janine phoned and arranged with Bill to go to Motor Registry to get his licence. Bill has got his license back, a restricted one”. The note states the licence had a 5km radius restriction.

On 9 December 2012 a Private Care Note was made stating that there was a “[p]hone call from Melinda – not happy about Bill getting his licence without doing a practical test”.

On 10 December 2012 Dr Dedousis sent a letter to Dr Barrett reporting on an appointment he had with the deceased and “his daughter”. He stated that the deceased’s MMSE score was “approximately 25/30” and that his “cognition is safe”.

On 12 December 2012 the defendant sent the deceased a fax thanking him for seeing him on 1 December and stating:

The Private Care Note for 14 December 2012 records that the deceased was given lunch at about 14:00 and that he then slept for almost four hours.

On 14 December 2012 the defendant sent a letter to the deceased stating:

The Private Care Note for 15 December 2012 records that “Brett was reminded by Bill that he (Brett) tried to sue his father for all his assets”. A later note reads, “he forgot to turn the hot water tap off in his room, wash basin overflowed onto the floor”.

On 16 October 2012 Private Care Notes were made recording that the defendant and his family arrived at about 11:30. The note states, “I went onto balcony to give the family privacy. They closed the glass door”. And later, “There was a boat on the bay that was taking people around who were singing Christmas carols. He kept on getting up and going to the balcony door to check on it, even after going to bed”.

The Private Care Note made on 18 December 2012 states:

On 18 December 2012 the defendant sent a letter to the deceased, Melinda, Aleta and Janine requesting a family meeting. The deceased made a handwritten annotation:

On 20 December 2012 a Private Care Note was made recording that “Bill answered the door and told Janine that she is not welcome to enter the unit. Janine reminded Bill that it was one of the children’s birthday today, however, Bill still refused them entry and shut the door.”

Also on 20 December 2012 Maurice Marshan, the defendant’s solicitor, sent a letter to Aleta seeking a copy of reports relied on by the Guardianship Tribunal on 30 November 2012 and requesting her agreement for the deceased to undertake a neuro-psychological examination.

The Private Care Note for 22 December 2012 records the deceased being frustrated with the fax machine not receiving faxes and then speaking with Aleta. The Private Care Note for the next day records that Aleta called to tell the carer about the issues with the fax machine and that all faxes from the last few days were now coming through.

On 22 December 2012 the defendant sent a fax to the deceased stating that he had not heard back from all parties regarding the family meeting that he therefore would not attend.

On 24 December 2012 a Private Care Note was made recording:

Also on 24 December 2012 Mr Marshan sent Whites Lawyers a letter in relation to the costs of the Guardianship Tribunal noting that the deceased had informed the defendant that the costs of the proceedings exceeded $20,000. It continued, “if this is the case, my client has every right to be gravely concerned that his father may be being subjected to financial abuse” and sought an explanation of the legal costs incurred. It also requested that Mr White recommend to the deceased and his guardians that he undertake a neuro-psychological examination.

Whites Lawyers replied to Mr Marshan’s letter that same day. The letter states, “Mr M W Gooley regards the contents of your letter as a blatant threat directed at him by Dr B R Gooley”. It goes on to complain about two visits the defendant made to the deceased, one where the defendant allegedly forced the deceased onto the balcony and another where the carer was locked out on the balcony for two and a half hours. It continues:

The Private Care Note for 25 December 2012 records that, “He did not want her (Janine) in the unit so he spoke to her in the common area or foyer”.

The Private Care Note for 4 January 2013 states the deceased had a long sleep until around 17:00.

On 7 January 2013 a Private Care Note was made that a “[d]elivery guy came with parcel that Bill refused to accept. Returned with driver”.

On 8 January 2013 a Private Care Note was made recording that:

On 14 January 2013 the deceased wrote a letter “To whom it may concern”:

The Private Care Note made on 15 January 2013 states, “Bill was on the phone to Aleta (once again discussing him paying someone cash and they now denying it)”.

On 16 January 2013 a Private Care Note was made recording that:

A MMSE was conducted on 22 January 2013. The MMSE document states that the deceased got a mark of 26/30. He lost points on:

On 23 January 2013 a Private Care Note was made recording:

The Private Care Notes made on 24 January 2012 record:

On 25 January 2013 Mr Colley sent a letter to the deceased to confirm he was instructed to “remove Janine as a director of Montasea”, the reason being to:

He also sent a fax to the deceased:

On 31 January 2013 Aleta sent an email to Mr White stating, “Melinda feels that Dad should not have any unsupervised meetings with either Brett or Janine”.

On 2 February 2013 John C Colley & Co sent a letter to the deceased stating that the deceased had instructed Mr Colley to try and come to an agreement with the defendant so the defendant could make no further claims on him. It also said:

The Private Care Note made on 5 January 2013 states, “I eventually got another petty cash chq (sic) from him. Always a challenge”.

On 7 February 2013 Mr Colley sent the deceased a fax: “I will phone to discuss this matter with you and perhaps we need to include the girls in the deliberations between you and me in regard to this matter.”

Mr Colley sent another fax the following day: “Repeating the opinion that I have given you, including in my fax of last night, I believe that we cannot bury our heads in the sand”.

On 10 February 2013 a Private Care Note was made stating, “DRESSING: Needs help to put shorts or trousers on requires assistance with putting stockings and shoes on – prescribed creams applied to his body and limbs”.

A later note recorded:

A Private Care Note made on 10 February 2013 states, “Daughters Melinda and Aleta are the only two allowed here – based on instructions from Guardianship Board”. There was also an instruction written on that day that the police should be called if the defendant or Janine “come and cause problems”.

On 12 February 2013 Whites Lawyers sent Mr Marshan a letter in a line of legal correspondence:

The deceased at some time made a handwritten note that appears to be instructions for a letter for Mr White to send Mr Marshan:

On 14 February 2013 a Private Care Note was made recording that:

The Private Care Note made on 17 February 2013 states, “… Aleta took Bill for a walk around the ? and back…” and “Bill annoyed I did not watch TV with him”.

On 20 February 2013 a Private Care Note was made recording that:

A later note recorded:

On 21 February 2013 the deceased sent the defendant a letter:

The Private Care Note for 21 February 2013 records, “its like a sauna in this unit, but Bill does not seem to feel hot!!!”

On 22 February 2013 a Private Care Note was made recording that:

The Private Care Note for 24 February 2012 records that at 14:30 the deceased went to sleep for an hour. He woke up at 15:30 and spent the afternoon watching TV half asleep in his chair.

On 25 February 2013 Dr Dedousis sent a letter to Dr Barrett regarding an appointment he had with the deceased and Aleta:

Dr Dedousis went on to state there was no cognitive decline and the deceased could continue to make his own decisions with respect to financial matters.

On 26 February 2013 Mr Marshan sent a letter to Whites Lawyers:

On 28 February 2013 a Private Care Note was made recording:

A note made later that day recorded the deceased slept for at least four hours and the carer had to ask for some money for housekeeping.

On 6 March 2013 a Private Care Note was made stating:

A Private Care Note made the following day said:

Sometime on 7 March 2013 the deceased presented to the emergency department of Sutherland Hospital and was transferred to Kareena Private Hospital due to an episode of confusion and light headedness. Kareena Private Hospital Progress Notes dated 7 March 2013 also include a nursing note made at 14:30: “Apparently pt had slurred speech and confusion this am on phone”.

On 8 March 2013 the deceased wrote a note for the Hospital Administrator of Kareena Private Hospital:

A note made in the Kareena Private Hospital Progress Notes that day states, “His son B Gooley is not to be allowed to visit. This is a medical decision.”

Also on 8 March 2013 Kareena Road Imaging Centre sent a letter to Dr Dedousis following a CT scan of the deceased’s brain noting the presence of an “old (several weeks or more) right fronto-parietal infarct”. The imaging was carried out to investigate the history of falls, confusion and possible transient ischaemic attacks. Dr Dedousis made a note in the Progress Notes: “neurologically intact”.

A Kareena Private Hospital Progress Note dated 9 March 2013 states, “Mr Gooley advised that he was happy to see his daughter Janine if she visited today as long as she was in the company of her son Tyrone. Otherwise not to see Pt.”

The note for the following day records, “Visited by Janine with grandson Tyrone”.

On 11 March 2013 the defendant sent a letter to the CEO of Kareena Private Hospital informing the CEO that the deceased had “severe organic dementia” and further stating:

The CEO replied on the same date writing that Dr Dedousis’ decision was based on the fact that “the ongoing family conflict between you and your siblings is having a negative impact on your father’s health”. He then suggested that the defendant contact Dr Dedousis or Dr Smith for an update on his father’s health.

The deceased was discharged on 11 March 2013. A Kareena Private Hospital Nursing Discharge Summary/ Transfer Form of that date records the deceased was admitted for “slurred speech, confusion, syncope”.

A Private Care Note also dated 11 March 2011 records, “Bill irritated because I left front door open for fresh air – very stuffy in unit otherwise – Bill is worried Janine or Brett might come in, yet he insists in talking to Janine when Janine rings up???”.

The note records he spoke with Janine at 18:00.

The Private Care Note dated 14 March 2013 records that “Aleta arrived to go with Bill to solicitor and returned home 15:30”.

The deceased made a will dated 14 March 2013. The principal change brought about by this will was that the shares in Barton Press Pty Ltd, which had previously been allocated to the defendant, were instead allocated to Aleta. Melinda and Aleta also both accepted their appointments as an attorney under an Enduring Power of Attorney on that date.

On 15 March 2013 a Private Care Note was made stating that “Brett still hassling (bullying) Bill about having an assessment with a geriatrician he (Brett) nominates. Janine has already told Bill that he (Bill) has dementia?????”.

The Private Care Note made on 16 March 2013 states, “Found Bill using carer’s toilet, I had to wipe up the dribbles on the floor + toilet him. I came in from the porch to find Bill standing over the toilet”.

On 17 March 2013 a Private Care Note recorded that the deceased “refused to take pm medication except warfarin because it made him ? a lot. Aleta checked and explained to Mr Gooley about his PM tablets. Mr Gooley eventually took his PM tabs from Webster pack except Pariet”.

On 18 March 2013 Private Care Notes were made recording that:

The Private Care Note made on 20 March 2013 states, “We need to take BP for Bill before seeing specialist, Dr Smith – not able to find the machine – Bill took it to his office, and now, cannot find it….I found the BP machine in the cupboard in Bill’s office.” A later note records the deceased “refused to take some of his evening pills … left the pills sitting on table”.

A Private Care Note dated 22 March 2013 states:

And later that day:

On 26 March 2013 a Private Care Note was made stating, “Mr Gooley appears to [be] behaving a little differently since returning from Hospital (a few weeks back) – slight idiosyncratic changes”.

The Private Care Note for 28 March 2013 states, “Bill is full of sarcasm today – he’s just asked me ‘…how are we going to get rid of someone if they come to the door?’ … He’s asked me to lock door up and keep it shut”.

On 1 April 2013 Private Care Notes were made recording:

On 2 April 2013:

On 3 April 2013:

On 4 April 2013:

On 5 April 2013:

On 8 April 2013:

On 10 April 2013:

On 10 April 2013 Dr Smith sent Dr Barrett a letter reporting on his review of the deceased on that date. The letter states the deceased had a background of chronic atrial fibrillation and rheumatic mitral valve disease. It also documents that his recent admission at Kareena Private Hospital followed an episode of confusion and presyncope.

The Private Care Notes made on 11 March 2013 state:

The deceased was admitted to Sutherland Hospital on 19 April 2013. Sutherland Hospital Emergency Documentation of that date records that the deceased presented with “syncope/faint” and that he was “in Kareena March with same”. The documentation further states:

A Sutherland Hospital Progress Note, “Aged Services Emergency Team Assessment”, dated 19 April 2013 also records:

A CT brain scan was also performed that day. The Sutherland Hospital CT note states, “There is mild to moderate periventricular and deep white matter low attenuation, compatible with chronic microvascular ischemia”.

The Discharge Referral Note dated 22 April 2013 states the deceased had presented at Sutherland Hospital with an episode of unresponsiveness on 19 April 2013.

The Private Care Notes made on 28 April 2013 state:

On 3 May 2013:

Also on 3 May 2013 Melinda sent an email to Mr Colley:

The Private Care Notes made on 6 May 2013:

Also on 6 May 2013 the deceased swore an affidavit in proceedings which Janine brought against the deceased and Motasea Pty Ltd (the Motasea proceedings).

The Private Care Notes made on 7 May 2013:

On 8 May 2013:

On 11 May 2013:

On 13 May 2013:

On 14 May 2013:

On 15 May 2013:

The deceased made a Will dated 22 May 2013. In this will the allocation of the Barton Press Pty Ltd shares reverted to the defendant (from Aleta under the March 2013 will).

On 4 June 2013 Dr Dedousis sent Dr Barrett a letter reporting on an appointment he had with the deceased and “his daughter”, stating that the deceased’s MMSE remained “approximately 27/30”.

Dr Dedousis also wrote a letter “To whom it may concern” stating that the deceased had multiple medical problems but had “the ability to make appropriate decisions, not only with regards to finances but also with regards to medical issues and residential concerns. This should be taken into account with regards to any unforeseen events in the near future”. The letter was faxed to Aleta on 18 June 2013 and the original posted to her.

On 5 June 2013 J Colley & Co sent a letter to the deceased setting out how to “resolve issues with Dr B R Gooley”. The deceased made a handwritten annotation: “OK you do it your way”.

The Private Care Note for 9 June 2013 states, “Mr Gooley drank alcohol prior & after dinner. A little bit drunk & talked non-sense. Fell asleep in his chair after dinner”.

On 17 June 2013 the Private Care Note recorded, “Mr Gooley drank a lot before & after dinner. Half drunk and started to talk non-sense.”

Dr Smith sent Dr Barrett a letter dated 18 June 2013 confirming that the deceased had a pacemaker inserted in April 2013.

The Private Care Note for 8 July 2013 states, “Bill had his Beer, then got himself a glass of wine – then snapped, threatening to call Melinda to come over and get him his dinner – I was already cooking his dinner and its only 6.45PM”.

A Deed of Amendment in relation to the Tonkin Trust dated 8 July 2013 was executed:

A Trustee/s Resolution document for the Tonkin Trust also records a series of resolutions made on that date:

A notice was prepared to inform the defendant of his removal as an alternative principal. Notices were also prepared to inform Garamond Pty Ltd and Xada Pty Ltd “that in accordance with Clause 27.1(e)(ii) of the Trust Deed you are appointed as an Alternative Principal of the Trust …”. Each of the notices were signed by the deceased. He also signed a statutory declaration:

The Private Care Notes record that on 12 July 2013, “Mr Gooley drank more alcohol before dinner. He was a bit drunk and talked non-sense a lot”.

On 13 July 2013, “Mr Gooley drank more alcohol before & after dinner. He was drunk and verbally abusive. Walk around apartment half-naked to check the doors and windows”.

At sometime the deceased made handwritten annotations to a letter the ATO sent Motasea Pty Ltd dated 15 July 2013 and titled, “Have you forgotten to lodge?”. The deceased wrote, “Mr Colley. Please advise my answer to ATO. Thanks”. And further, “Please advise my answer to this letter. Questions will start AM tomorrow. Janine is a sick woman I am told? Mentally?”.

And on 25 July 2013:

On 25 July 2013 John C Colley & Co sent a letter to the deceased setting out various difficulties Mr Colley had with completing three BAS returns including:

The Private Care Notes made on 26 July 2013 state:

On 27 July 2013, “Mr Gooley chose to stay at home today & refused to take a walk. He told me that he lost a cheque”.

On 28 July 2013, “Throughout the day, Mr Gooley tried to look for his cheque”.

On 29 July 2013, “Melinda found the cheque. It was in his drawer… Mr Gooley told the carer that he lost his house’s key. Carer helped to look for it but couldn’t find it.”

On 30 July 2013, “Melinda arrived to help to find Mr Gooley’s house keys. Apparently Mr Gooley had found the keys last night without telling anyone”.

On 31 July 2013, “Melinda came over. Mr Gooley getting confused about his business letters and bills. Around dinner he is drinking before and during. He is forgetting how much he is having.”

On 1 August 2013, “went in with him to tell the Dr to check all the skin prior to his holiday, otherwise he won’t tell her to check other ones, eg his back…. Was worrying all the time over money matters”.

On 2 August 2013:

On 5 August 2013 the deceased entered the following comments into his personal notes:

On 8 August 2013, “Bill questioned by Origin got Melinda to ring them to help sort out with Mr Gooley which property”.

On 10 August 2013 the deceased sent a letter to R & W in relation to repairs to property and payment of invoices. It states:

The deceased made handwritten annotations to the letter adding “Motasea P/L” to the list of companies and “Till further notice” after “Barton Press Pty Ltd”.

On a letter the ATO sent Motasea Pty Ltd on 12 August 2013 titled “Warning: Failure to Lodge your Activity Statement on Time” the deceased wrote:

The Private Care Notes made on 15 August 2013 state, “they (Michael and Melinda) didn’t stay for lunch, they made business calls and sorted out some things”.

The defendant sent the deceased a letter dated 15 August 2013 stating:

The deceased handwrote notes on the letter in response:

The Private Care Notes made on 23 August 2013 state:

On 28 August 2013:

On 30 August 2013:

On 3 September 2013 the defendant sent a letter to Dr Dedousis stating the deceased had “been taken overseas without the knowledge of my sister Janine or myself. Could you please confirm whether or not you issued a medical certificate declaring him fit for international travel”.

On 9 October 2013 Mr Colley sent the deceased a letter:

The Private Care Note for 10 October 2013 records, “Melinda came around 10:30am left at 12:30pm to assist with Mr Gooley’s business affairs and sort out papers”.

On 10 October 2013 there was an email chain between Peter Rogers of Richardson & Wrench (R & W), a real estate agency, and Mr White. In an email sent at 7:17am Mr Rogers wrote in relation to attachments titled, “Decahill PL”, “Scope of work”, “Quotation”, “Excess- Invoice 1771”, and “Consumer­_building_guide":

The Private Care Notes made on 15 October 2013 record, “Mr White coming this morning running late arrived 12 pm. Mr Gooley had been dozing before he came, so had not read material to be discussed”.

Those made on 18 October 2013 state:

On 19 October 2013:

On 23 October 2013:

On 24 October 2013, “he crossed at a risky time and I said he should have waited till the car had passed”.

On 4 November 2013:

On 10 November 2013 the deceased sent a fax to Mr Colley containing a handwritten note:

The Private Care Notes made on 20 November 2013 record, “Melinda came to find papers for business meeting with solicitor”.

On 21 November 2013:

On 22 November 2013:

On 27 November 2013:

On 2 December 2013, “Mr Gooley not too well, slow and forgetful”.

On 3 December 2013:

Also on 3 December 2013 Dr Dedousis sent a letter to Dr Barrett reporting on an appointment with the deceased and “his daughter” and outlining that the deceased had experienced no cognitive decline while on a five week cruise:

Dr Dedousis also sent a letter to Mr White regarding the upcoming Supreme Court case requesting that he not be cross-examined.

The Private Care Notes made on 7 December 2013 state, “He was a bit drunk after dinner and started to talk non-sense to the carer throughout the evening”.

Those made on 9 December 2013 state, “Mr Gooley told Dr we were out of tablets (still had some left)”.

On 20 December 2013, “Mr Gooley had about 2 or 3 glasses of wine and got very slurry in speech dozing at table while eating feeling down said people trying to kill him he was fed up with everything all the battles”.

On 22 December 2013, “Mr Gooley is not able to be flexible with changes in treating his wounds or leg swellings”.

The deceased made a handwritten note addressed to Mr White and dated 7 January 2014 stating:

On 13 January 2014 a Calvary Rehabilitation Referral Form was completed by a Sally McLean, RN, with the referring doctor listed as “Dr Chris Dedousis”. The “Chief Impairment/Operation” was listed as “unwitnessed fall…” The deceased’s “Comorbidities” were described as “TIA/Stroke… Dementia”. “Chronic Confusion” was listed as “mild” (the other options being moderate or severe). The form also noted that the deceased usually resided with “24 hr carer” and that there were “medico legal issues between family- court case pending”.

On 20 January 2014 there was an email chain between Mr Colley, a Ms Rioflorido and Aleta. In one of the emails Mr Colley requested that Ms Rioflorido provide “each account on a monthly basis” to “help us for our general accounting”. Ms Rioflorido replied, “Can you confirm if you want the monthly statements to be sent to you as well?” Mr Colley then stated, “I have just spoken to Mr Gooley and he has approved me being given copies of the rental statements each month”.

The deceased sent a fax to Mr White which was dated in handwriting at the top, “3 February 2013”. However the defendant alleges (T.1286/35-40) and the plaintiffs seem to agree (Plaintiffs/Cross-Defendants Outline of Reply Submissions, 22 September 2020; but cf T.1262/15-35) that the fax was in fact sent in 2014 (see further below). It begins, “Gary will arrived at 7pm today… Will arrived @ 7pm today”. It goes on to provide instructions in relation to the making of a will.

The deceased wrote a letter addressed to the defendant and dated 12 February 2014:

On 13 February 2014 Whites Lawyers sent the deceased a fax:

The Private Care Note made on 19 February 2014 records:

On 19 February 2014 the deceased faxed Mr White a handwritten note stating:

The Private Care Note made on 21 February 2014 records, “No alcohol for quite a few days”.

The Private Care Note made on 2 March 2014:

On 3 March 2014:

On 4 March 2014:

On 6 March 2014, “Mr Gooley found his other bottle of wine in his trolley walker and apologised for saying carers tipped it out.”

The deceased made a will dated 7 March 2014. The changes brought about by this will were that:

On the same day the deceased made a statutory declaration:

The Private Care Notes made on 7 March 2014 state:

Those made on 8 March 2014 record, “He did complain again that someone had thrown his wine away”.

On 12 March 2014, “Mr Gooley checking if chq A/C had any funds – Must be careful which account he writes petty cash from”.

On 13 March 2014:

On 17 March 2014:

On 20 March 2014:

On 25 March 2014, “Janine rang before tea he spoke to her for a while, he answered phone, whatever she spoke about kept playing on his mind”.

On 26 March 2014, “He distorts the truth even I have heard him retelling things to his daughters that I said things that I have not said or adds to the story so he can give people the wrong impression of how competent he really is.”

On 31 March 2014, “Said I put the dishwasher on at the wrong time, that I hadn’t emptied the bin (which I had) etc. I even heard him say to Aleta that I didn’t do any washing which is not true!!”.

On 3 April 2014:

On 7 April 2014 Mr White sent the deceased a fax concerning the sale of 2A Hill Street, Woolooware. The deceased later made a handwritten note on this letter stating:

The Private Care Note made on 12 April 2014 records, “Bit of an upside down day – so he was a bit irritable. Tried to ring his grandson in Tasmania. No answer so left messages late at night (no Alcohol)”.

On 13 April 2014:

Mr Colley sent a fax to the deceased dated 14 April 2014 stating, “you are able to take the Directorship away from Brett, and you could take Breda back. My advice though is that you DO NOT do so…”. That advice was made in response to a handwritten note from the deceased, “I have paid ASIC. Questions I am told Marshan has been advised. I can sack BRETT + take back Breda P/L, do you want me to do this? Is there anything I should do? Please advise! Let us do it to shut him up!”.

On 15 April 2014 the defendant sent the deceased a letter stating, “Further to our telephone conversation at 11:45am, I am purely faxing you to confirm that Deborah … advised me that her mother Barbara passed away last night…”. The deceased made a handwritten note for the defendant in response, “Thanks for the above information re Barbara Burfield. Could you please give me Debbie’s phone number or fax number. Thank you, your Dad, Dad.”

The Private Care Note made on 16 April 2014 records:

The deceased presented to the emergency department of Sutherland Hospital at approximately 17:25. A Sutherland Hospital Discharge Referral document of that date states that the deceased presented to the facility with “confusion”:

Clinical notes recorded:

Progress notes were made indicating that the deceased was not willing to stay in hospital for monitoring.

A CT Brain Final Report made following a CT scan conducted on 16 April 2014 also noted that there was an “old right anterior MCA territory infarct…There are moderate periventricular low density changes in keeping with chronic microvascular disease”. He was discharged at 23:14.

Mr Colley faxed a letter to the deceased on 17 April 2014 in relation to “BAS Statements for the March Quarter” and requesting further information. The deceased made a handwritten note in response:

The Private Care Notes made on 17 April 2014 record, “Mr Gooley was not happy that we took him to Hospital the night before….he has no recollection of what happened”.

The deceased handwrote a note to Mr White which he dated 23 April 2014:

The Private Care Notes made on 30 April 2014 state:

The defendant sent a letter to the deceased dated 2 May 2014 outlining the reasons for his resignation as a director of Breda Pty Ltd. The deceased made a handwritten note on the document:

On 5 May 2014 Mr Colley sent a fax to the deceased in which he advised, “It is my considered opinion that the BRG requested to withdraw his resignation and be given the option of taking whatever action he made me which with Breda provided it does not compromise MWG.”

The deceased made several annotations on this document including an annotation next to the above-cited paragraph: “No. I can change my will… Do we need to change name from Breda”.

In relation to an issue regarding stamp duty on real estate he wrote, “You may have known of impediments but you never advised me in so few words. I can advise Richardson & Wrench to collect rents in name of Decahill or W Gooley or some other name if necessary”.

He made further comments:

Also on 5 May 2014 the deceased requested Mr White fax him a copy of the will he made on 7 March 2014 and he made some handwritten changes.

On 13 May 2014 a Private Care Note was made recording that:

On 16 May 2014 Dr Smith sent a letter to Dr Barrett in relation to a review he conducted of the deceased:

The Private Care Notes made on 20 May 2014 record, “Walk up to Bank to fix accounts so cheques don’t bounce”.

On 21 May 2014, “Drove to Miranda for hearing test. Had odd Hearing aids on, 1 new and 1 old so they were not able to adjust….fight with Aleta re getting his passport off her – wanting to go on cruise by himself”.

On 22 May 2014:

On 24 May 2014, “Walk up street to post letters (wrong postage on most but he won’t take much notice has his own ideas…Exhibiting some odd behaviour at night”.

On 29 May 2014, “‘Melinda came with papers to sign re business sorted out some bills and mail”.

On 3 June 2014 Dr Dedousis sent a letter to Dr Barrett following another appointment with the deceased and Aleta:

The Private Care Notes made on 6 June 2014 record, “Wants to go out by himself or even drive again, which is not realistic”.

On 10 June 2014, “Woke at 4am to make breakfast thinking it was (morning) time to get up”.

On 11 June 2014:

On 12 June 2014, “visitor arrived Chris from Real Estate Mr Gooley hadn’t told me he was coming and he forgot”.

And on 20 June 2014, “‘Mr Gooley had been dozing after going to bathroom and came to lunch table in just his underpants didn’t put trousers back on”.

The deceased made a handwritten note addressed to NAB Taren Point and dated 14 July 2014 stating, “Would you please advise the situation of term deposit for M Gooley at 30/06/2014? Thank you.”

The deceased made a Will dated 18 July 2014. This is the primary will propounded by the plaintiffs. The changes were that the defendant’s children, Elise, Nathan and Simone Gooley, were added as beneficiaries and a major gift to Melinda’s son, Damon Foley, was added. The only child not named as a beneficiary was Janine’s son, Charlton.

The Private Care Notes made on 23 July 2014 record, “Mr Gooley wanted Dr to sign form for RTA Dr Said no (renewal of licence). Mr Gooley said later he didn’t agree with the Dr’s opinion”.

Those made on 31 July 2014 record, “Janine had rung the previous day telling Mr Gooley she had found the better house for him to move to and suggested he sell where he was and get away from Melinda and Aleta’s control”.

On it seems 1 August 2014 the deceased faxed a document titled, “Breda Pty Limited Notice of Division 7A Dividend” to Mr Colley. He made various handwritten notes on the document including:

The deceased made a handwritten note addressed to Mr White on 4 August 2014 stating:

On 12 August 2014 the defendant sent the deceased a letter stating:

It attached an excerpt from the Guardianship Tribunal application. At the top the deceased wrote, “Dr Dedousis said he will have you deregistered. Watch out”. Next to the words, “He lasted but four days before my youngest sister Janine Gooley was forced to call an ambulance due to having fallen on the corner of his bed sustaining a fractured hip”, the deceased made a handwritten annotation, “No? What does this mean”.

The deceased also made a handwritten note on the defendant’s letter of 12 August 2014 stating, “I have previously told you + Janine why should I give money to someone who wants to fight me with court actions continuously. I do not get my money as easily as you seem to.”

The Private Care Notes made on 13 August 2014 record:

Those made on 14 August 2014 state, “Mr Gooley slow oblivious of time”.

On 18 August 2014:

And on 20 August 2014, “Stirred up a bit with both daughters. He doesn’t like to let go of some of the control”.

On 21 August 2014 the defendant made his second application to the Guardianship Tribunal, this time for the appointment of a financial manager to make decisions about the deceased’s financial affairs and the appointment of a guardian to make decisions about his personal and lifestyle matters. The document setting out the reasons for the need for a financial matter asserted that there were sales of properties at less than market price, a failure to account for sale proceeds and movements of funds. The document setting out the reasons for the need for a guardian included the deceased’s obtaining of an AVO against the defendant after the previous Guardianship Tribunal application was withdrawn, the defendant’s and Janine’s inability to see the deceased, the reversal of the Power of Attorney, and threats of a restraining order against Janine.

The Private Care Notes made on 23 August 2014 record:

On 28 August 2014:

On 29 August 2014:

On 31 August 2014, “4 am Bill up in office. I sent his back to bed and told him the time.”

On 2 September 2014, “‘Melinda called in with PO Box mail – I gave her things we kept from waste paper basket in case they were important.”

On 5 September 2014:

On 7 September 2014:

On 9 September 2014, “Melinda came at 11:45 to tidy his office and help sort papers. She did a lot stayed till 4:30pm”.

On 10 September 2014:

Then on 26 September 2014, “They all had been drinking Bill had 2 beers and wine”.

A document titled, Minutes of a Resolution of Directors of Goold Enterprises Pty Limited, and dated 27 September 2014 records:

A further Minute of Director’s Resolution for Goold Enterprises of the same date records, “The Appointer Mr M.W. Gooley wishes to install Ms Melinda Louise FOLEY as the Appointer of the Gooley Family Trust.”

A document titled Resignation as a Director and Secretary states, “I, Melville William Gooley hereby resign as Director and Secretary of Goold Enterprises Pty Ltd”, and a Transfer of Shares form records the sale of 10 shares in Goold Enterprises from the deceased to Melinda.

On 27 September 2014 the deceased sent a fax to Mr Colley stating:

An ASIC Form 484 also records that on 10 October 2014 the deceased ceased to be a director and secretary of Dama Enterprises Pty Ltd and that Aleta was appointed to those offices.

The Private Care Notes made on 14 October 2014 record:

On 24 October 2014, “Bill wanted to go up to Bank so we went up before lunch went to NAB, St George, (Westpac didn’t have right papers)”.

On 26 October 2014:

On 28 October 2014 Dr Dedousis sent a letter to Mr White:

Also on 28 October 2014 Dr Dedousis sent a letter to Dr Barrett in relation to an appointment he had with the deceased and Melinda and Aleta:

He sent a letter to the Guardianship Tribunal in the following terms:

On 28 October 2014 Janine made an affidavit for the Guardianship Tribunal proceedings in which she asserted that when she visited the deceased at President Private Hospital on 4 September 2012 she found a piece of paper on the floor of his room that said, “You have an appointment with your lawyer at 3:45pm to 4:00pm. Ask your GP for a letter confirming you are of sound mind”.

On 2 December 2014 Dr Dedousis sent another letter to Dr Barrett stating, “The ongoing litigation and legal issues with his son are certainly taking their toll on him. He is much more worried and concerned than he usually is…There are no new clinical issues…”.

On 10 December 2014 Teece Hodgson & Ward, solicitors, sent a letter to Mr White following a meeting with the deceased and Mr Colley at the deceased home. The letter states the deceased, “doesn’t mind if Brett comes to see him” and “doesn’t want to see Janine but said she can come and see him if the visit is supervised by a carer.” In relation to the deceased’s conduct of his financial affairs the letter states:

The Private Care Note made on 13 December 2014 states, “he was very tired during the day and somehow less alert”.

On 4 January 2015 the deceased presented at the emergency department of Sutherland Hospital following a fall. A document titled Sutherland Hospital Critical Care Medicine ICU/HDU from January 2015 notes the deceased had dementia.

A Discharge Referral Baseline document completed around the same time states, in the section concerning past medical history, “Dementia- Known to Dr Dedousis”. The document notes, “Complex guardianship case currently underway”, and that the defendant and Janine were only to be contacted after the “Person to Contact” listed on the deceased’s file.

A CT scan performed on 4 January 2015 was reported to have found, an “old infarct in the right frontal hemisphere measuring 3.1 * 3.2 cm in axial diameter…white matter glisosis changes consistent with microangiopathic ischaemic cerebral white matter disease noted.”

Sutherland Hospital Emergency Documentation dated 4 January 2015 records, “‘collateral history obtained from patient’s private nurse Vicky as patient has dementia – unwitnessed fall this afternoon” and that Vicky found the deceased “muttering gibberish”. A Sutherland Hospital General Exam Adult Note of the same date records, “Patient was pale, eyes turned upwards, and muttering gibberish”.

A Sutherland Hospital Admission and Discharge Risk Assessment document records that there was evidence of a history of concerns regarding changes to memory, concentration, thinking and decision making. A handwritten annotation states, “dementia”. The form also records previous episodes of delirium/confusion/wandering.

A Sutherland Hospital Anaesthetic Chart of 4 January 2015 lists “Early Dementia” as relevant medical history. A Patient Handover Plan lists dementia. An Occupational Therapy Initial Assessment document of the same date describes the deceased’s cognition as being “drowsy and vague”. And Sutherland Hospital Progress/Clinical Notes of 4 January 2015 record that the deceased was “not orientated to time/place”.

Sutherland Hospital Progress/Clinical Notes made on 5 January 2015 record:

A later entry states, “mentally stable and is in a position to make a judgement re consenting to have the operation”.

An occupational therapy note recorded in the Sutherland Hospital Progress/Clinical Notes on the same day states that the deceased scored 20/30 on an MMSE and that he had “difficulty with short term memory, orientation and construction”. He was not able to state the correct season, date or day of the week. He was not aware of the floor he was on but was otherwise oriented in place. He could repeat three objects but could not recall any minutes later. He could complete “serial 7’s”. He could name a pen and a watch. He could follow two parts of a three-part command. He could close his eyes. He could not copy a 2-D drawing.

Sutherland Hospital Progress/Clinical Notes made on 6 January 2015 record the deceased was again “disorientated to time/place at times”. An ICU admission note made at 14:10 notes, “Evidence of previous R frontal infarct”. A later entry lists, “dementia ↓ Dr. Dedousis”, under past medical history. A further nursing note states, “Hx Dementia”.

Sutherland Hospital Progress/Clinical Notes made on 7 January 2015 record:

On 8 January 2015:

On 9 January 2015 the Progress/Clinical Notes record that the deceased was “vaguely confused at times but mostly orientated” and that the defendant attempted to visit the deceased but was asked to leave. A further note was made stating:

A comment was added: “PT identified daughter Aleta and Melinda to be his NOK. PT requesting his two x children Brett and Janine. PT requesting not to allow Brett and Janine not attend.”

The deceased also scored approximately 19/30 on an MMSE on this date. He was orientated in time and place other than to date. He could repeat two out of three objects but was not able to recall any several minutes later. He could spell three of five of the letters comprising “WORLD” in reverse order. He could name a pen and a watch. He could not repeat a well-known phrase. He could follow one part of a three-part command. He could close his eyes. He could not write a sentence (making the overall score one of 18/30 as opposed to 19/30). He was not able to copy a 2-D line drawing.

Sutherland Hospital Progress/Clinical Notes made on 10 January 2015 record the deceased was “vague at times”. On 11 January 2015, “confused at times”.

A Private Care Note dated 11 January 2015 also states:

A physiotherapy note made in the Sutherland Hospital Progress/Clinical Notes on 12 January 2015 states, “patient difficulty following instructions”. A later note reads:

Sutherland Hospital Progress/Clinical Notes dated 13 January 2015 record:

A referral form from Sutherland Hospital to Calvary Hospital dated 13 January 2015 records that the deceased’s co-morbidities were, “TIA/stroke, myelodysplastic syndrome, raised blood pressure, chronic atrial fibrillation, PPM, CCF, Dementia”. His “cognitive status-chronic confusion” was indicated to have been “mild” but the “normal” box in relation to “cognitive status” was left unchecked.

Sutherland Hospital Progress/Clinical Notes dated 14 January 2015 record the deceased was “vague at times” and “very demanding, appears to have poor recall, difficulties mobilising”. A Patient Handover Care Plan of that date notes that he had “Dementia”.

The Sutherland Hospital Progress/Clinical Notes of 15 January 2015 state the deceased was “alert, confused, settled”, and later, “confused at times”. He scored 20/30 on an MMSE that day. He was oriented to the year and month but not to the season, date or day of the week. He was orientated to place. He could repeat three named objects but could not later recall those objects. He could spell “WORLD” backwards and completed the language section with a score of 5/6. He could not write a sentence or copy a design.

The Sutherland Hospital Progress/Clinical Notes of 16 January 2015 state:

A Private Care Note of the same date states:

A South Eastern Sydney Illawarra NSW Health Rehabilitation Referral note also of the same dates records, “phone call to ward RN. Patient alert and confused”.

A NSW Health Document titled Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen which was completed over 16, 17 and 18 January shows that on each of the three days the respective assessors (all it seems, registered nurses) selected “yes” in relation to the following questions:

A document titled Calvary Health Care Sydney Patient Handover Care Plan – SGSHHS which was completed over the period 20 January 2015 to 19 March 2015 records the deceased’s medical history as including dementia. Almost every entry states that his MMSE score was 23/30 and that due to “legal issues” the folders of his medical notes were to be kept locked up.

A Calvary Health Care Rehabilitation Unit Patient Referral form of 20 January 2015 notes a past medical history of dementia and that the deceased’s cognitive status was “alert”. A Calvary Health Care Sydney Rehabilitation Physiotherapy Initial Assessment document of the same date also notes a medical history of dementia and the deceased is noted to have required assistance with ADL’s and personal care in the form of 24 hour private nursing care. A Calvary Health Care Sydney Rehabilitation OT Initial Assessment also completed on 20 January 2015 records a past history of dementia and states that Melinda was attending to his financial management. His carers were said to be responsible for cooking meals, shopping, cleaning, laundry, medication and community access.

Calvary Health Care Sydney Progress/Clinical Notes made on 20 January 2015 record, the deceased “had post-op delirium but now settling… pt has expressed wish regarding some relative is NOT allowed to visit him in hospital”. His background is noted to have included “Dementia- Known to Dr Dedousis”. Medications included PRN Risperidone (antipsychotic). The deceased was described as oriented to place and person but not to time.

A nursing note was made at 15:15 in the following terms:

Calvary Health Care Sydney Progress/Clinical Notes made on 21 January 2015 record:

An Admissions and Discharge Risk Assessment document completed on 21 January 2015 records that the deceased’s mental state was confused and disorientated. The check box beside the words, “Changes to memory, concentration, thinking, decision making” is marked “yes”.

Also on 21 January 2015 Dr Dedousis sent a letter to Teece Hodgson & Ward stating that the deceased was suffering from a delirium:

Dr Dedousis also sent a letter to Pricewaterhouse Coopers stating that, “Mr Gooley is no longer able to make appropriate decisions with regards to residential, medical or financial issues” and seeking to have the Power of Attorney and Enduring Guardian invoked immediately.

Calvary Health Care Sydney Progress/Clinical Notes made on 22 January 2015 record:

He scored 23/30 on an MMSE that day. He said the year was 1915, that the season was Spring, but that the month was January.

Calvary Health Care Sydney Progress/Clinical Notes made on 24 January 2015 record the deceased was “Alert and pleasant. Patient also can be confused at times too”.

On 25 January 2015, “‘Patient can be verbally abusive especially when care in rendered……alert, can be confused at times”.

On 26 January 2015, “Alert, orientated is forgetful at times”.

On 27 January 2015:

On 28 January 2015, “Alert and oriented…. Alert and cooperative. Requires prompting to complete tasks”.

On 29 January 2015:

On 30 January 2015:

On 1 February 2015, a nursing note made at 15:45 records that Melinda gave instructions that the only family members allowed to visit the deceased were herself, Aleta and their families, “+ nil other siblings”.

On 3 February 2015 an occupational therapy note was made stating:

An Occupational Therapy Self-Care Assessment form which was completed following a 60 minute assessment of the deceased records the following:

The Calvary Health Care Sydney Progress/Clinical Notes made on 4 February 2015 include a physiotherapy note which states, “Require prompting ++ to do exercises as patient sometimes sits there or stands there, either he had forgotten or required effort to get up or move”.

A physiotherapy note made on 5 February 2015 states, “Patient not very motivated to do much exercise and when asked why he wanted to return to his room, it is because his carer is waiting for him there”.

A nursing note made in the Calvary Health Care Sydney Progress/Clinical Notes on 7 February 2015 records that the deceased pressed the buzzer soon after midnight “wanting attention… pt was told to try and … sleep as it was midnight”. Another nursing note made at 12:00 states, “Toileted twice this [morning] and pt requires assistance to clean bottom and put pants up and down. Pt requires lots of guidance to complete tasks.” Further notes document two assertions made by the deceased which could not be verified: first, that a screw in the guest chair had come out, and secondly, that his pad and legs were wet when they were in fact dry.

A nursing note made in the Calvary Health Care Sydney Progress/Clinical Notes on 8 February 2015 records that the deceased complained about not being cleaned properly but that he had already been cleaned. Further, “Patient continually sniping at staff – you didn’t clean me, God help your husband being married to you. Stop picking on me”.

A nursing note made on 9 February 2015 records the deceased was “alert and orientated mostly but does fluctuate”.

A hospital note made on 11 February 2015 states:

A Private Care Note made on 13 February 2015 states:

A Calvary Health Care Sydney Glasgow Coma Scale Neurological Chart of 19 February 2015 records that the deceased was confused.

An Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen document dated 20 February 2015 indicates that the deceased was again confused (i.e. unable to make purposeful decisions…), disorientated and agitated on that date.

An Occupational Therapy Home Access Assessment completed on 25 February 2015 notes that the deceased was “estranged from his son and does not want contact with him” and that his daughter would complete “all administration tasks”. The deceased’s MMSE score was recorded as 23/30.

Private Care Notes made on 2 March 2015 note the deceased was at 4:00pm “very confused” and was “very confused” again at 6:30pm.

A Calvary Health Care Sydney Progress/Clinical Notes made on 3 March 2015 records:

A Private Care Note made on 4 March 2015 records:

A Calvary Health Care Sydney Progress/Clinical Note made on 4 March 2015 records that the carer was unable to understand what the deceased was saying and that one of his daughters expressed concerns about morphine.

A CT brain scan performed on 5 March 2015 in response to “decreased consciousness. Haemorrhage? CVA” showed evidence of an “old right MCA cortical infarct, age-related involutional change and chronic microvascular ischaemic disease”. Progress/Clinical notes and other Southern Eastern Sydney Local Health District documentation also indicate the deceased was found to be disorientated to the day of the week and month but able to provide his date of birth. His GCS dropped from 15 to 13. He was described as confused and unable to make sense. He is noted to have been admitted with a fractured neck of femur from a fall with a history of dementia. A decision was taken to decrease his dose of Endone. The deceased was noted to have been extremely abusive when attempts were made to insert a cannular.

A Calvary Health Care Sydney Progress/Clinical Notes made on 5 March 2015 also records “gibberish/incoherence yesterday afternoon” and a Glasgow Coma Scale Neurological Chart completed on that date notes the deceased was confused.

A nursing note made in the Calvary Health Care Sydney Progress/Clinical Notes on 6 March 2015 states, “patient has very definite ideas of what he wants and to do thing his way but lacks insight into safety issues”.

A Private Care Note also dated 6 March 2015 states:

A nursing note made in the Calvary Health Care Sydney Progress/Clinical Notes on 7 March 2015 records that the deceased rang the buzzer at several times with “various small requests” and that the “pt ha[d] confusion episode”.

A nursing note dated 8 March 2015 and made at 04:30 states, “does not listen to instructions at times and lack insight in regards to safety issues”. A further note made at 14:00 states, “he is alert but some confus[ion]”.

A nursing note made on 9 March 2015 records the deceased was “Not compliant with buzzer multiple times despite being explained to buzz before getting up”.

A nursing note made on 11 March 2015 states, “He is alert and vague…He is dependent on staff for sequencing of tasks”. A Private Care Note of the same day records, “The Dr came in and woke him up – Bill was quite confused and didn’t know who he was, told Dr he was a salesman – Dr Dedousis not happy with his condition said it was the worst he had seen him”.

A Private Care Note made the next day records:

On 13 March 2013 Dr Dedousis sent a letter to the Guardianship Tribunal seeking to postpone the date of the hearing which was listed for 16 March 2015:

A nursing note made in the Calvary Health Care Sydney Progress/Clinical Notes on 14 March 2015 records the deceased had a brief episode of unresponsiveness.

A Calvary Health Care Sydney Progress/Clinical Note made on 18 March 2015 records, “periods of fluctuating consciousness resolved and all delirium tests negative”.

A Discharge Referral Note was completed by a Dr Lauren Daneel (on behalf of Dr Dedousis) for Dr Barrett on 18 or 19 March 2015. The first version of the document notes that the deceased has a medical history of “Dementia- known to Dr Dedousis”. However there is a second version of this document in which that statement has been deleted.

Private Care Notes made on 22 March 2015 record the deceased was “confused at times about staff roster… tends to forget”.

On 23 March 2013 Dr Lonie, Consultant Clinical Neuropsychologist, was appointed under orders made by the Guardianship Tribunal to assess the deceased’s cognitive function and provide an opinion on his capacity to manage his own person and finances.

The Private Care Notes of that date record at 02:00, “Bill up for bottle and very confused”.

On 25 March 2015:

On 26 March 2015, “Melinda had to come and pay for session as Bill couldn’t remember his Pin No”.

On 27 March 2015:

On 31 March 2015 Dr Dedousis sent a letter to Dr Barrett following an appointment with the deceased and Aleta:

On 2 April 2015 Aleta sent an email to Mr White, a Mr Birtles (from Teece Hodgson & Ward) and Melinda and Mr Colley in which she expressed concern regarding her father being subjected to neuropsychological testing:

Aleta proposed to have a Mr McMahon perform the testing because he was recommended by Dr Dedousis. She also said Dr Dedousis did an impromptu test with the deceased and that he did “very well” and got “approx.. 80% correct”.

She sent a further email to the same recipients:

The Private Care Note made on 8 April 2015 states, “Fax arrive Bill trying to fax using phone number”.

On 9 April 2015, “Bill looks very confused”.

On 10 April 2015:

The deceased also made a handwritten note that day: “I don’t want to take the test – just another trap I will put myself into”.

The Private Care Note made on 14 April 2015 states:

On 16 April 2015 Aleta sent an email to Mr White, Melinda, Mr Birtles and Mr Colley stating:

On 17 April 2015 Aleta sent an email to Mr White:

On the same day Mr White sent an email to the Guardianship Tribunal stating:

On 22 April 2015 Aleta sent an email to Mr White, copying in Melinda:

Also on 22 April 2015 Mr Birtles sent an email to Mr Reid (from M + K Lawyers) relating to the instructions to be provided to Dr Lonie. In the letter Mr Birtles said:

The Private Care Note made on 25 April 2015 states:

On 27 April 2015 Dr Dedousis wrote a letter addressed “To Whom it May Concern”, copying in Medical Records, Sutherland Hospital:

On 27 April 2015 Aleta sent an email to Mr White and Melinda stating, “I don’t think you should mention the dementia/Sutherland Hospital Medical Records in the letter to Jane Lonie.”

On 1 May 2015 Whites Lawyers sent a letter to M + K Lawyers regarding the appointment of Dr Lonie to assess the deceased. The letter also states in relation to the Sutherland Hospital records, “… Mr Gooley’s carer Vicky refutes that she advised anyone that Mr Gooley had or has dementia”.

On 2 May 2015 Aleta and Melinda were appointed as directors and secretaries of Breda Pty Ltd, Castletag Pty Ltd, Decahill Pty Ltd, Jamell Technical Publications Pty Ltd, Motasea Pty Ltd, Naladon Pty Ltd, Neufreund Money Management Pty Ltd, Tahnrone Pty Ltd and Barton Press Pty Ltd. For each company a document titled Minutes of Meetings of Member Representatives records:

The Private Care Note made on 4 May 2015 states:

The Private Care Note made on 7 May 2015 records, “Bill ringing NAB Bank again re his term deposit waning the interest rate”.

On 12 May 2015 Dr Dedousis sent a letter to Dr Barrett following an appointment with the deceased and Aleta:

On 20 May 2015 Whites Lawyers sent an email to Dr Jane Lonie, forwarding an email which Aleta had sent to Whites Lawyers stating:

A document titled Addenbrooke’s Cognitive Examination, thought to be completed around 21 May 2015, records the deceased had an MMSE score of 27/30. He scored 6 out of 7 for “Memory: Anterograde Memory” which specifies, “Tell: I’m going to give you a name and address and I’d like you to repeat after me. We’ll be doing that 3 times, so you have a chance to learn it. I’ll be asking you later.” However he scored 1 out of 4 for “Memory: Retrograde Memory”. Questions he got wrong were the name of current prime minister (he said, “Mr Beattie”), the name of the Premier of NSW (he said, “Barty Bartle”) and the name of the USA president (he said, “1st Negro to get there”). He scored 5 out of 7 for “Verbal Fluency Letters” (naming words with the letter “P”) but 0 out of 7 for “Verbal Fluency Animals” (naming as many animals as possible).

On 21 May 2015 the deceased was examined by Dr Lonie. White Lawyers had provided her with a letter of instruction dated 12 May 2015.

The Private Care Note made on 22 May 2015 states, “’Bill trying to take down the correspondence and folders to do things with business. I took them higher out of his reach”.

On 24 May 2015:

On 25 May 2015:

A Private Care Note made on 30 May 2015 records an episode where the deceased was heard giving his credit details to someone over the phone, calling his accountant despite being told not to make any business calls and being told not to give out his credit card details over the phone.

The Private Care Note made on 4 June 2015 records that the deceased was confused about who had cared for him during the previous night. He thought he had a “male nurse named Gary”. When he was shown the Private Care Notes that indicated his carer had been Vicky, a female, he is reported to have said, “this is all proof that the male carer named Vicky”. Later, at 8:15pm the deceased asked about his male carer, Gary.

Dr Lonie, Consultant Clinical Neuropsychologist, was appointed under orders made by the Guardianship Tribunal on 23 March 2015 to assess the deceased’s cognitive function and provide an opinion on his capacity to manage his own person and finances. Dr Lonie completed her report on the deceased’s cognitive function on 4 June 2015. It states:

The Private Care Note made on 7 June 2015 records the deceased was “adamant he had urinated down his legs’ at 1.30am”.

The Private Care Note made on 9 June 2015 states, “Bill called the Westpac Bank asking for info on deposits”.

Dr Lonie sent Aleta a letter dated 14 June 2015. It includes:

On 15 June 2015 the Guardianship Tribunal confirmed a previous financial management order it had made on 23 March 2015 such that Aleta and Melinda remained joint managers of the deceased’s estate with the supervision of the NSW Trustee and Guardian (with no further review). The Tribunal dismissed the defendant’s application for guardianship but noted that Aleta and Melinda did not have authority to restrict access to the deceased. It ordered that Aleta and Melinda send all medical reports to the defendant. Those orders were loosely based on orders that were proposed by consent by the parties at the beginning of the hearing and were made after consideration of the material by the Tribunal.

On 16 June 2015 Dr Dedousis sent a letter to Dr Barrett following an appointment with the deceased and Aleta:

The Private Care Notes made on 19 June 2015 record that the deceased was adamant he wanted to visit the bank despite the fact it was raining. At Westpac the manager “explained he wasn’t able to do anything on the account as Melinda had sent her the papers from the Tribunal.”

A Private Care Note made on 21 June 2015 at 2:00am states the deceased was “very confused”.

On 1 July 2015, the deceased was “Ringing daughter [Melinda] arguing with her on phone. He doesn’t accept the situation that he is under financial management by tribunal order.”

On 4 July 2015 at 12:30 the deceased was described as “very confused”.

On 10 July 2015, “…when physio came [Bill] stood up a little confused. Thought he was getting up from toilet, pulled down his trousers saying he wanted to wipe himself”.

On 14 July 2015, “Bill called Brett and asked him to come and see in between 10 – 12am. He mentioned Brett all problems are created due to lack of communication…”.

On 17 July 2015:

On 29 July 2015, “Bill writing letter to his wife? To send to his daughter”.

The Private Care Note for 30 July 2015 records the deceased attempted to fax a letter he had written but failed in that attempt.

The Private Care Note for 31 July 2015 records that the deceased tried to use a container in the laundry to go to the toilet then sat in his room trying to find his passport.

The Private Care Note for 6 August 2015 records that the deceased attempted to go to NAB but did not get any information from the teller. He also called a travel agent to inquire about cruises.

On 7 August 2015:

The 7 August 2015 Private Care Note also states that the deceased tried to get a cheque book and deposit book from Melinda after tea.

An entry in a handwritten document titled Social Visitors & Social Phone Call Log Book dated 7 August 2015 also states, “Brett rang Mr Gooley took call. He only told Melinda when she called in this afternoon. I did not know that he spoke to Brett.”

The Private Care Note made on 14 August 2015 records that the deceased was “very confused” and could not remember his birthday or date of birth. He knew his own name but “[k]ept saying ‘I’m finished and I don’t know what she is doing.’ When I inquired who, he said ‘Melinda’”.

The Private Care Note made on 28 August 2015 records that the deceased was confused.

The Note made on 10 September 2015 records that the deceased sorted through papers on his desk, called banks and attempted to send faxes using the wrong numbers.

The 11 September 2015 Note states the deceased was “ringing up getting accountancy work done”.

The 15 September 2015 Note states the deceased attempted to have books sent to him by ANZ.

The 22 September 2015 note records that he attempted to book a cruise with a travel agent. He wanted to go for a three month cruise and was angry when the carer suggested two or three weeks might be a better option.

The 29 September 2015 Note records that the deceased was calling banks in relation to “an old notice 2013”. He got worked up when he didn’t get anywhere and tried to walk to the Cronulla branch.

The 30 September 2015 Note details another attempt by the deceased to go out without his carer.

The 1 October 2015 Note states that the deceased went to the NAB branch and would not let his carer go to the counter with him. The note says, “he wanted to walk home in an unsafe way with no crossing”.

The 2 October 2015 Note records two attempts by the deceased to leave home without his carer. A Private Care Note made later that day states:

The 9 October 2015 Note states that the deceased “started on the NAB quest again”. He walked to the bank after lunch but was told they could not do anything due to the “guardianship board”. He called Aleta.

The 16 October 2015 Note records that the carer attempted to take the deceased to the library but he insisted on going to St George Bank. The Note states, “After several disagreements we came back home. He didn’t want to cross road from traffic light so he crossed from middle of road. I tried to stop traffic and he got home.”

The 17 October 2015 Note states that the deceased was convinced there was something under his bed but that that was not the case.

The 21 October 2015 Note states that the deceased wanted to go to Miranda Bank “about the piece of paper again”. Then he “wanted to go to the NAB bank”. He was apparently adamant that he wasn’t going to see the doctor.

The 22 October 2015 Note states that the deceased “announced he was going up to Miranda NAB.” He could not be convinced to go to the community club and became “aggressive” about going to the bank. The carer agreed to go to the bank if he would wait until she went to the bathroom. She wrote that “He was gone when I came out of the bathroom, I chased him up the road caught up with him at Nicholson Pde Corner, asked him why he didn’t wait, he was aggressive toward me told me not to make a scene at the taxi.” The taxi driver did not know where the bank in Miranda was so the deceased went home.

The Private Care Note made on 23 October 2015 records:

On 25 October 2015, “Bill woke up at 10.55pm insisting to change his singlet again as he mentioned he has not changed it despite he had already changed”.

On 27 October 2015:

On 30 October 2015, after lunch, “Then Bill wanted to walk up to St George Bank – so off we went through underpass he wanted to go unsafe way I told him he had plenty of time Bank open til 5pm”.

On 11 November 2015 at 11:30, “he called, he was very confused he wants to get up for shower”. Then at 11:55, “Bill still confused, he was not able to understand that he just bn bed for an hour. ## him and give him shower in morning then he slept”.

On 12 November 2015 at 4:30pm, “slept…was a little disorientated wanted to use bottle – reminded him he has a catheta in, took a while to register that he didn’t need to urinate as he had before”.

On 25 November 2015:

On 28 November 2015, “He was very upset & continued to repeat that he is going to call Private Care and complain about Jennifer that she has a controlling approach to him and keeps arguing with him.”

On 12 December 2015, “Insisted on going to St George bank we went after 9.00am Bank is not open on Saturday.”

On 15 December 2015 Dr Dedousis sent a letter to Dr Barrett following an appointment with the deceased and Aleta and Melinda: “there have been no new clinical issues of concern of late, there have been no … periods of delirium or confusion”.

An entry made in the Social Visitors & Social Phone Call Log Book on 25 December 2015 states, “Dr Brett Gooley arrived and wanted to give a present to his father. I asked Bill if he wants to see him and he said yes…. Brett gave him a present and then left”.

The Private Care Notes made on 25 December 2015 state:

On 26 December 2015 Sutherland Hospital provided a discharge letter to Dr Barrett summarising the deceased’s admission to the emergency department:

The letter also includes the following notes:

Sutherland Hospital Emergency Documentation Progress Notes dated 12 January 2016 record:

A Sutherland Hospital Occupational Therapy Initial Assessment dated 14 January 2016 records that the deceased’s medical history included “dementia” and that he required full assistance with toileting.

A Sutherland Hospital Falls Risk Assessment and Management Plan document dated 16 January 2016 states that the deceased was “confused, disoriented agitated or depressed”.

A Discharge Referral Note dated 18 January 2016 records the deceased as having had a “background of mod cognitive impairment – known to Dr Dedousis”. It also states:

A Calvary Health Care Sydney Document titled Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen which was completed on 19 January 2016 shows that the assessor selected “yes” in relation to the following questions:

Sutherland Hospital Emergency Documentation dated 19 May 2016 includes an initial speech pathology assessment and records the deceased had a medical history of “mild cognitive impairment” known to Dr Dedousis. Progress notes also record that the deceased was oriented to place and person but not to time.

A document titled Sutherland Hospital and Community Health Service Southcare-Community Referral Fax Form dated 15 August 2016 records that the deceased had “dementia”.

A Private Care Note made on 11 October 2016 states, “Dr Dedousis was please[d] with Bill’s general well-being but it was apparent he thought Bill’s dementia was worse and that he was slowing down”.

On 11 October 2016 Dr Dedousis sent a letter to Dr Barrett:

Private Care Notes made on 5 January 2017 state, “Bill slept till 4:00 then he was keep calling for getting up, requested him to wait, its too early, he was gone back to sleep…”.

On 13 January 2017, “Bill started to calling up from 4:15, wanting to get up for shower. Keep requested him that its too early. Finally got him up at 6:00…”.

On 16 January 2017, “Awoke 0200 saying he needs to go to the bank and speak to the manager. Bill accepted when told the time, back to sleep”.

On 17 January 2017, “Bill slept well, awoke 0300, drink of water…”.

On 18 January 2017, “Awake at 4:30am – tell him time – He gone back to sleep until 6:20am”.

On 19 January 2017:

On 22 January 2017:

On 26 January 2017, “Bill awake at 4:30am – said time to him – He said he will go back to sleep – drank a few sips of water…”.

On 27 January 2017:

On 28 January 2017:

On 1 February 2017, “Bill called at 11:10pm – He asked me to move his legs in the bed – His legs were at edge of the bed – called again at 5AM – I said its early to get – gone back to sleep until 6:10AM…”.

On 2 February 2017, “11:30Pm he called, he was confused, requested to go back to sleep. He slept well. Called at 1:28 again confused, he was…and he don’t know what he was trying to say to me”.

On 3 February 2017, “Called at 4:00, wanting to get up, he want to passed urine, he was calling every 15 to 20 min 6:00 slept back…”.

A South Eastern Sydney Local Health District Document titled Community Health Documentation which was completed by a Georgie Winsor following a home visit on 7 February 2017 notes:

Private Care Notes made on 12 February 2017 state, “Bill called at 5:00, show him a time, he went back to sleep”.

On 14 February 2017, “Bill slept well till 0400. Awoke saying he is worried about concerns his accountant is ‘cheating him’. Reassured Bill”.

On 17 February 2017, “Buzzer went off at 4:00 because of that noise, Bill woke up, wanting to get up, requested him to go back to bed, he called 2-3 times in between 4 and 5:30am”.

On 23 February 2017, “Bill was rest less last night, keep changing position, at 3:00 Bill called wanting get up, keep calling till 4:15”.

On 2 March 2017, “Called at 11:20PM – asked me to put back his leg on the bed – called again at 3:20AM – is it 6AM. I said no - he gone back to sleep”.

On 3 March 2017:

On 5 March 2017, “He slept well till 3:00am wanting to get up, he banging the side-rail slept back at 4:55”.

On 16 March 2017, “Called at 4:45, wanting to get up, show him time. Told him its too early, he was keep calling wanting to cut his facial hair, followed by water, he settled at 5:45”.

On 21 March 2017, “Bill awoke 0320. Asking to get up. When told the time Bill went back to sleep”.

On 22 March 2017:

On 24 March 2017, “Bill went to bed. Bill called again, he was bit confused, he went back to bed”.

On 31 March 2017:

On 2 April 2017:

On 3 April 2017 Dr Dedousis sent a letter to Dr Barrett following an appointment with the deceased and Aleta:

Private Care Notes made on 3 April 2017 state, “Dr Dedousis notes that Bill has lost some weight and muscle mass and cognitive decline but says this is consistent with dementia progressing”.

On 7 April 2017:

On 12 April 2017, “He woke up @ 2:15am sitting on the side of the bed – I emptied the catheter – He thought it was time for his morning shower”.

On 13 April 2017, “Called at 5:00, he was confused, he wanting to go to airport to catch plane”.

On 21 April 2017, “Bill was restless last night, didn’t sleep much, confused. Trying to get independent”.

On 23 April 2017, “3:30 called confused, wanting to go to work. Slept back called at 5:00, on and off calling”.

On 1 August 2017 Dr Dedousis sent a letter to Dr Barrett following another meeting with the deceased and Aleta and Melinda:

Sutherland Hospital Emergency Documentation dated 20 November 2017 records that the deceased was a “’92 year old man…on a background of longterm dementia” and that there had been “ongoing, slow deterioration over the last year in the context of dementia”.

A Sutherland Hospital Patient Handover Care Plan also dated 20 November 2017 records the deceased’s medical history as “dementia” and the deceased is recorded as having been confused on 20 November 2017 and “confused and vague” every day from 21-24 November.

A Sutherland Hospital Resuscitation Plan which states it was discussed with and authorised by Dr Yousef on 24 November 2017 records the deceased’s diagnosis was “dementia”.

A speech pathology note made in the Sutherland Hospital Progress/Clinical Notes on 23 November 2017 at 10:00 states the deceased was “alert and responsive… Pt easily agitated.” A dietician note made at 10:30 states, “MHx noted, includes dementia”.

An Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen document dated 23 November 2017 indicates that the deceased was confused, disorientated and agitated on 23 and 24 November 2017.

A Discharge Referral document dated 23 November 2017 records the deceased’s medical history as including “dementia-known to Dr Dedousis”.

A Speech Pathology Discharge Report addressed to Dr Barrett and also dated 27 November 2017 records the deceased’s medical history as including dementia.

The following documents dated 10 December 2017 also record the deceased as having had a history of dementia:

A note made in the Sutherland Hospital Progress/Clinical Notes at 16:15 on 11 December 2017 records the deceased’s background as including “dementia”.

A Sutherland Hospital Falls Risk Assessment and Management Plan records that the deceased was “confused, disoriented or depressed” on 11, 12 and 19 December 2017.

An Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen document dated 12 December 2017 indicates the deceased was again confused, disorientated and agitated on that date.

As I have noted, the deceased passed away on 23 December 2017.

On 27 December 2017 Dr Betty McDowell (thought to be Dr Dedousis’s intern: T.502/1-15) completed a form recording the deceased’s causes of death. It records “dementia” as a significant condition contributing to the death but not related to the disease, injury or condition causing it and states that the approximate duration between onset and death was “years”.

A death certificate dated 2 February 2018 records dementia as a cause of the deceased’s death. As to its duration, the certificate indicates the deceased had “dementia, years”. A handwritten amendment on the certificate indicates “2” years.

A handwritten note (of an unknown author) dated 6 February 2018 states:

A further note on the same page dated 7 February 2018 states:

A NSW Registry of Births, Deaths and Marriages form was completed by a Debbie Marshall from Olsens Funerals on 7 February 2018 to “correct” the information relating to the cause of death on the deceased’s death certificate. It includes:

Notably the handwritten “2” is very dark and appears to have been changed from a different number.

On 14 February 2018 the NSW Registry of Births, Deaths and Marriages sent a letter to Olsens Funerals:

Also on 14 February 2018 Aleta sent an email to a Ms Sampson of NSW Health seeking assistance in having the deceased’s death certificate changed so that it records him as having had dementia for “2 years” and not “years”.

On 17 April 2018 Dr McDowell completed a new form recording the deceased’s causes of death. It records “Dementia” as a significant condition contributing to the death but not related to the disease, injury or condition causing it and states that the approximate duration between onset and death was “2 years”.

On 17 April 2018 a death certificate was issued noting the deceased had “dementia, years”.

A further NSW Registry of Births, Deaths and Marriages form seeking to “correct” the information relating to the cause of death on the deceased’s death certificate was completed by Ms Marshall and dated 18 April 2018. It also states:

This document is stamped as having been received by Births, Deaths and Marriages on 3 May 2015.

On 3 May 2018 a new death certificate was issued stating the deceased had “dementia, 2 years”.

The test for testamentary capacity was famously set out in the decision of Banks v Goodfellow (1870) LR 5 QB 549 (“Banks v Goodfellow”) at 565:

The first thing to note about Banks v Goodfellow is that this was an appeal from a jury trial where the only two issues before the court were whether the trial judge had misdirected the jury or whether the verdict was against the evidence and the weight of the evidence.

The Court recorded the question the trial judge (Brett J as his lordship then was) posed for the jury as (at 554):

Unexceptionably the trial judge also directed the jury to take a balanced view of the facts. The jury after 25 minutes deliberation returned a verdict of a “good and valid will”.

The survey of the factual material and any real detail of the judge’s directions on appeal are relatively briefly dealt with.

The Court refers to two “medical men” who treated the deceased at various points. One from the end of 1856 to the end of 1862 and the other from September 1863 it seems until his death in 1865. Both gave opposing views as to the mental soundness of the deceased. The nature and extent of their evidence is only further elaborated upon in the contemporaneous newspaper reports of the time such as the Cumberland Pacquet, as outlined in Martyn Frost’s book on the trial, A Victorian Tragedy: The Extraordinary Case of Banks v Goodfellow (Wildy, Simmonds & Hill Publishing, 2018). It is to be observed that neither was an expert at least in the modern sense of that term. Instead the absence of expert evidence is replaced by the Chief Justice using a good deal so it seems of judicial notice of “the mystery of human intelligence” and “the pathology of mental disease” (at 560) and “monomania” (at 561).

The alleged misdirection was said to be (554):

The Court noted that the jury verdict was consistent with them finding that there were no delusions “present to his consciousness not, that they were eradicated from his mind” and that “if the question had been specifically put to them whether the delusions still remained latent in the testator's mind and his mind was to the extent of these delusions unsound, they would have found in the affirmative” (555).

Therefore the Court posed the question whether partial unsoundness of mind not affecting the “general faculties” of the testator or the particular testamentary disposition would be sufficient to deprive a person of testamentary capacity (556). The Court then observed that such a question had never before arisen however there were cases in the Privy Council and the Court of Probate suggestive in statements obiter that any degree of unsoundness however slight and unconnected with the particular disposition would suffice to render the disposition invalid.

The Court made clear that even if “mental disease” existed, provided it did not interfere with the capacity to make a rational disposal of property, a will should be regarded as valid, and although drawing a factual distinction between mental disease in the sense of psychosis as opposed to dementia or a lack of intelligence, again a capacity to make a valid will is retained if the testator “fully” comprehends the testamentary act “about to be done” (at 566).

The Court also commented that testamentary capacity should not be denied speculatively on the basis of unsoundness “which has failed to display itself” and which may exist in a latent and undiscovered form (at 570). And if the “delusion has not affected the general faculties of the mind and can have no effect upon the will,” the will should be upheld (p 570). If there is no evidence of a connection and hence influence between the “delusion” and the disposition under the will then the delusion is not to be seen as incompatible with testamentary capacity.

This position now seems well established. For example in Croft v Sanders [2019] NSWCA 303 (‘Croft v Sanders’), White JA (Bathurst CJ and Gleeson JA agreeing) upheld the trial judge’s findings concerning the validity of the testator’s will, noting (at [128]):

Banks v Goodfellow has otherwise been considered extensively in Australia and New South Wales.

In Carr v Homersham (2018) 97 NSWLR 328 Basten JA considered (at [5]-[6]):

In Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 (at 290-291), the Court considered it a grave matter to invalidate a will:

Meagher JA (Basten and Campbell JJA agreeing) in Tobin v Ezekiel (2012) 83 NSWLR 757 (‘Tobin v Ezekiel’) set out the following principles (at [44]-[51]):

Further in Mekhail v Hana [2019] NSWCA 197 Leeming (Basten JA and Emmett AJA agreeing) emphasised the need to assess the “full nature” and “gravity” of the suspicious circumstances (where they exist) as part of the evaluation of whether the burden cast on the proponent of a will has been discharged ([134], [136]). Further each suspicious circumstance or doubt which is raised must be allayed by the proponent of the will ([147]-[148]). However there is no inflexible rule as to what will be necessary in order to justify the will ([137], quoting Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 at 485-486). One must look at the evidence as a whole ([154]).

A will made by a person of advanced age should be carefully scrutinized (Boreham v Prince Henry Hospital (1955) 29 ALJR 179, 180 (Williams, Fullagher and Kitto JJ)).

However as Kunc J considered in Phillips v Phillips [2017] NSWSC 280 in the context of dementia (at [131]-[134]):

It is clear that while the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is ultimately a question of fact for the trial judge, and lay evidence may equally be relevant (see, e.g., Croft v Sanders at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing)). It has generally been said that neither expert medical evidence nor the opinions of attesting witnesses as to competency are on their own decisive (Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); see also Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).

An experienced solicitor’s evidence is capable of being “valuable evidence of testamentary capacity” because an “experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path” (Drivas v Jakopovic (2019) 100 NSWLR 505 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing), citing Re Crooks Estate (Supreme Court of New South Wales, unreported, 14 December 1994) at 29 (Young J)). Equally a solicitor’s evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection of a will being signed but gives evidence of his or her usual practice (Drivas v Jakopovic (2019) 100 NSWLR 505 at [54]-[55]).

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 testator. It has been accepted that it is undesirable to attempt to lay down precise and specific rules as to what that necessarily entails in every case (Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89] (Hallen AsJ), referring to Pate v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported, Santow J)).

However the Court ought not accept the evidence of a solicitor as to testamentary capacity or knowledge and approval where the solicitor’s usual practice or conduct in relation to the making of any particular will is deficient, including where the solicitor has not asked the client open-ended questions to allow a proper assessment to be made (Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [137]-[197], [297]-[299], [304], [306] (Hallen AsJ); Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [98], [107]-[108] (Kunc J); Rowe v Sudholz [2019] QSC 306 at [149]–[150] (Applegarth J)). The Court must also consider whether the particular instance before it “may stand apart from the ordinary case” (Drivas v Jakopovic (2019) 100 NSWLR 505 at [54]).

In terms of assessing the medical evidence that is before the Court it has been said that the best medical evidence will always be that of a specialist for example a psychiatrist, consultant physician or clinical psychologist who, with the benefit of a clinical examination, expresses an opinion by reference to the elements of testamentary capacity enunciated in Banks v Goodfellow, in a report which complies with the expert witness rules of court (Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [127] (Palmer J)).

It is nonetheless said that the evidence of treating practitioners can sometimes be of more assistance than that of medical experts who did not examine the deceased (Nicholson v Knaggs [2009] VSC 64 at [39] (Vickery J); see also Dellios v Dellios [2012] NSWSC 868 at [32] (White J)). To that end the evidence of specialists who have never seen the deceased is to be considered bearing in mind the evidence of medical practitioners who examined the deceased and the evidence of lay witnesses (including solicitors) (Loupos v Demirgelis [2008] NSWSC 1207 at [54] (Windeyer J); Re Estates Croft, deceased [2018] NSWSC 1303 at [118] (Lindsay J, upheld on appeal: [2019] NSWCA 303)).

However little weight ought to be given to a medical opinion where the doctor is insufficiently apprised of the facts. That is because, in interpreting the facts as the doctor thinks they are (and not as they actually are), the doctor is not to be regarded as properly drawing on his expertise in a field of specialised knowledge (Drivas v Jakopovic (2019) 100 NSWLR 505 at [65] (Macfarlan JA, Bell ACJ and McCallum JA agreeing), referring to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 305 at [86]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]).

The least satisfactory evidence is generally that of laypersons who stand to benefit under the will (Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [129] (Palmer J)).

Both the plaintiffs and the defendant deployed expert medical evidence.

Each called a neurologist and a neuropsychologist.

The plaintiffs called Professor John Watson and Ms Leanne Kennedy. The defendant called Associate Professor Amy Brodtmann and Dr Jane Lonie. Each of the experts was suitably and highly qualified.

I ordered conclaves take place among the experts. There were three conclaves to which I will refer later. When they gave their evidence I offered each expert an opportunity to do so in narrative form pursuant to s 29(2)-(3) of the Evidence Act 1995 (NSW). The plaintiffs’ experts chose not to take up the invitation but both of the defendant’s experts did.

I also ensured that the experts were called last in case there was any change in the evidence that they might be required to comment on.

Professor Watson provided two reports dated 15 August 2019 and 22 July 2020 respectively. His areas of expertise include the assessment of people with brain damage and cortical dysfunction, the use of experimental methods for studying cognitive function in normal volunteers and the assessment and management of patients with cerebrovascular disease.

He was supplied as were all others with a good deal of material.

He explained his approach as being to adopt a medically based analysis of the person and his conditions, illnesses and underlying diseases (e.g. dementia) along with a consideration of the size and complexity of the estate and the content of the wills or the type of gift involved, CB.6/2686. He further explained that in such a case the medical expert will try to determine what cognitive complaints and difficulties may be present. The complaints if any then have to be assessed to decide on the underlying cause and attempt to reach a medical diagnosis. Thereafter it is a case of assessing the severity of the condition and importantly how it might affect high level activities such as capacity.

In reviewing the various documents he indicated how he weighted the information with which he was provided in coming to his opinions. He gave greatest weight to contemporaneous documents from medical practitioners, paraclinical staff, and hospital based personnel. Next he relied upon professional and lay observers (not beneficiaries) and last upon actual or potential beneficiaries under the various wills.

He specifically referred to the medical and other material he had been provided and in particular the materials from Mr Colley, accountant, the solicitor, Mr White, and Mr Peter Rogers, who had all dealt with the deceased.

He also referred to the various doctors, such as Dr Dedousis, Dr Smith, Dr O’Shea, and Dr Barrett, which he found helpful in assessing the deceased’s capacity.

As a prelude to answering specific questions, he expressed the view that the deceased had important medical conditions and that he did have “a progressive and/or stepwise decline in cognition and physical abilities in the last years of his life”, CB.6/2687.

He was asked quite specifically whether the deceased suffered from a medical or mental condition, or conditions, which was likely to impair his cognition on “18 July 2014”. He stated he did suffer from a number of conditions that were capable on the balance of probabilities of affecting his cognition on 18 July 2014 but that most were also present at the times of his earlier testamentary acts.

However he thought that from all the materials he reviewed (which included medical and lay evidence, Dr Lonie’s findings of 2015, and his review of the CT scans) that the deceased did have a range of conditions that were “capable of and, likely to impair his cognition”, CB.6/2688.

He was asked a pointed question about whether if the deceased did suffer from a medical condition it was likely to impair his cognition at the date of any of the “previous testamentary documents”, CB.6/2688. Having reviewed some of the clinical materials Professor Watson expressed the view that, “So with all of Mr Gooley’s various conditions over the years it was likely that through many of the relevant times he was suffering from medical condition or conditions capable of affecting cognition”, CB.6/2689 (emphasis in original).

Professor Watson in addressing the nature and severity of the deceased’s cognitive impairments expressed the view unsurprisingly that the totality of the evidence needed to be considered, CB.6/2689. Professor Watson placed considerable weight upon the evidence of Mr Colley, Mr White and Mr Rogers and on the basis of their impressions thought that any cognitive impairment was unlikely to have been significant in the context of the deceased’s testamentary capacity. He placed particular weight on Mr White and his description of the deceased changing his wills at different times and giving instructions in the manner he did.

However he was of the view the deceased’s “medical conditions per se directly or indirectly some of the cognitive issues, did… have some effect on [the deceased’s] daily life”. Professor Watson did not consider the deceased having full time care as necessarily an indicator of cognitive impairment. He thought that the care requirements were “more based upon [the deceased’s] age and frailty per se”, CB.6/2690.

Professor Watson expressed the view that the deceased at all relevant times understood the nature and act of making a will and its effect. In addition he thought the deceased understood the nature and extent of the property which he was disposing. He thought he had a general understanding although he may not have kept the individual details in his mind at all times. Again Professor Watson relied heavily upon the assessments of Mr White, Mr Colley and Mr Rogers. He also relied upon the deceased’s daughter when she explained how her father still dealt with estate agents and his properties. He also according to her knew the right person to ring about rates and the like. Further Professor Watson expressed the view that in relation to the identification of beneficiaries the deceased suffered no cognitive impairment at any relevant time and further could weigh up the nature and strength of the claims of all beneficiaries to whom he ought have regard, CB.6/2691.

Professor Watson thought the deceased’s ability to write out by hand his comments on revised versions of his wills was helpful in considering testamentary capacity as being logical and coherent. Again he accepted the evidence of Mr White.

Professor Watson thought the deceased was indignant about the two Guardianship Tribunal hearings and the caveat on his property. But by implication at least he was rightly indignant. In addition he did not consider him delusional. Although the deceased had “significant episodes of acute ill health including sepsis, delirium, two hip fractures …”, Professor Watson thought for the 18 July 2014 will, the deceased had capacity, as he did for the 12 November 2012. As for the 4 September 2012 will, Professor Watson noted that Mr White said he did not have any recollection of the circumstances of the making of that will. However Professor Watson said the fact the deceased also signed an Enduring Power of Attorney that day, and had been given an explanation as to its effect by Mr White, showed some support for lucidity and he thought again by implication that he had capacity.

So far as Dr Lonie’s reports are concerned Professor Watson commented upon them in some detail in an appendix but in summary he dismissed them on the basis that they do not test testamentary capacity.

In his “Review of Documents” Professor Watson effectively summarised the various documents he saw as relevant including the statements of Mr Colley, Ms Melinda Foley, Mr Gary White, Ms Aleta Gooley, and many others, CB.6/2696-2715.

At CB.2716-2727 he purported to summarise the reports of Dr Lonie. He then summarised Dr Dedousis’s file and numerous other medical records, CB.6/2727-2738.

In his second report (of 22 July 2020) Professor Watson again summarised the documents he received along with the assumptions he was asked to make, CB.13/5477-5478. He again expressed some views about Dr Lonie’s reports.

Professor Watson stated that Dr Lonie’s tests were intended to elicit the patterns of function and dysfunction relevant to different cognitive processes. He noted that for right handed people the left hemisphere is generally dominant for verbally based material. Executive functioning (planning, problem solving, and foresight) are commonly held to rely more on frontal lobe functions, CB.13/5481.

Professor Watson said he agreed with Dr Lonie that when she saw the deceased (in May 2015) he had retained capacity to decide on his own lifestyle and medical matters. He thought she had performed appropriate tests. Professor Watson placed a good deal of importance on what he describes as the “contemporaneous evidence both medical and lay”, CB.13/5485.

Professor Watson expressed the view that the deceased had sustained a partial right middle cerebral artery territory infarction somewhere between July and September 2012 but that Dr Lonie thought at the time he had dementia and she did not consider him worse three years later. Indeed in the MMSE she conducted in 2015 he did better. Again Professor Watson thought that the deceased’s “technique” of corresponding with his legal and accounting team “does indicate the retention of testamentary capacity”. He noted the fact that Dr Lonie was asked to review materials including a transcript of Mr White’s evidence (which he had not seen), CB.13/5488. Professor Watson while noting the stroke in say August 2012 said he thought the deceased had recovered by 2014. He further stated that any lack of capacity in the weeks or months after the August stroke does not mean he lacked capacity on a permanent basis, CB.13/5489. Further he considered it inappropriate to infer a lack of testamentary capacity in 2014 because of a lack of testamentary capacity in 2015. Again Professor Watson placed considerable weight on the deceased’s capacity to make handwritten changes on wills and fax them back to his solicitor, CB.13/5490.

Professor Watson participated in two conclaves, the first on 14 November 2019 with Associate Professor Brodtmann and Dr Lonie. He and Associate Professor Brodtmann had another conclave on 27 August 2020. Dr Lonie and Ms Kennedy had a conclave on 3 September 2020.

In examination in chief Professor Watson was asked to assume that on 13 November 2012 the deceased was sufficiently in control of his faculties to know and act upon his own wishes, that between 13 November 2012 and late 2014 the defendant wished to speak to the deceased to discuss “family financial matters” and reach an agreement as to those matters, and that in March 2013 the deceased resiled from an arrangement with his grandson when an estate agent purported to increase rent. On those assumptions Professor Watson said that would reinforce his views that the deceased had capacity, particularly around the time of the assumptions put to him, T.1141/25-40.

In cross examination he agreed a matter of significance was the fact the deceased made draft changes to a will dated 12 November 2012, T.1143/20-35.

He could not recall reading a copy of the cross examination of Mr White, solicitor, T.1147/20-25. He also had not read the transcript of the cross examination of Mr Colley, T.1148/15-20. Likewise he had not read the cross examination of Dr Barrett or Dr Dedousis, T.1148/20-30.

He agreed the totality of the evidence needs to be considered to determine if the deceased had capacity, T.1148/35-36.

He agreed that in the 27 August 2020 conclave he originally agreed the deceased lacked capacity on 14 March 2013 but having reviewed some materials after the conclave, principally Mr White’s affidavit, he changed his mind to say the deceased did have capacity, T.1149/10-40. In relation to the 22 May 2013 will Professor Watson was unable specifically to identify what material he relied upon in forming his opinion that the deceased had capacity but for the affidavit of Mr White, who said he had no recollection of how that will was made but he believed he followed his usual practice, T.1152/10-20.

He did not read any of the underlying documents prior to the conclave with Associate Professor Brodtmann, T.1153/30-35.

Professor Watson was taken to the deceased’s handwritten note at CB.559 and was asked to accept that the deceased wrongly dated the document (it was dated 3 February 2013 when it was in fact 2014). He responded that at that time of the year people do write the previous year on cheques and financial documents, T.1154/25-30. He was taken to a part of the note, which appears to be instructions for a new will, purporting to gift two companies to the deceased’s two daughters, Melinda and Aleta. He was shown a will of 14 March 2013 and asked to accept that the deceased had already given the shares to them in a previous will. He was unable to answer the question why a person would bother handwriting a whole page of instructions to put something in a will that is already in a previous will, to which he answered, “I’m a neurologist. I am not a psychic”, T.1156/30-45.

He would not say on the basis that the deceased was merely repeating a previous testamentary gift that he did not have capacity, T.1156/28-36. He said, looking at the document in totality, it could have been written as a result of indignation, T.1156/45-50, T.1157/1-5. He did not believe the preamble could be explained by a lack of foresight, T.1158/1-5. He did not consider that misdating a document in respect of a will that had already made showed (necessarily) a lack of capacity, T.1159/5-15.

Professor Watson said he does not administer neuropsychological testing, T.1163/9-15. He agreed that he went to see a colleague, Dr Zoe Terpening, who said that Dr Lonie’s conclusions were reasonable, T.1164/10-20.

He was asked about the August 2012 MoCA test where the deceased drew the numbers outside the clockface. He said that could be explained by visual difficulties together with the fact that at the time he was acutely unwell in hospital with acute sepsis and delirium, T.1166/5-15.

He was asked about a test performed in May 2015 and three unusual aspects of the deceased’s clock drawing; the deceased wrote the numbers 1-16 inside the clock face, the numbers were not spread out, and thirdly, the deceased wrote “20 to 4” outside the clock. Professor Watson said one reason for that result could be that the deceased had a right hemisphere stroke that could have interfered with his visuospatial ability, T.1168/10-15. He was also very sick again in early 2015.

Associate Professor Brodtmann provided two reports dated 4 and 20 October 2019. When she gave evidence she accepted my invitation to deliver a narrative in order to explain her reports.

She was provided with a significant array of materials including all the affidavits and carers’ notes from 16 November 2012 until the deceased’s terminal admission in 2017. She was also provided with CT scan images, CB.6/2992. She made it clear that she did not concern herself with the various wills or their terms.

In her first report she stated that different disorders “preferentially affect different brain functions”. Most clinicians she opined include a number of cognitive domains for testamentary capacity assessment, incorporating cognitive testing such as attention abstract and logical reasoning, information processing, verbal abstraction and comprehension, language abilities, semantic and autobiographical memory, executive functions and decision making capacity. All of the testing emphasises the “critical need to assess executive function”, CB.6/2995.

She also expressed the view that the ability to express a preference does not equate to having testamentary capacity. The mere fact that the deceased had a falling out with two of his children does not mean he had capacity.

She defined executive function as frontal lobe function; it involves a diverse range of cognitive processes including reasoning, abstraction, judgment, self-awareness and many other functions.

No formal testing of executive function was done until Dr Lonie’s assessment of the deceased, although MoCA was performed on 28-29 August 2012. Associate Professor Brodtmann’s view was that the deceased performed poorly on that test. The MMSE which was also administered has limitations and is not designed for accurate testing of the frontal domains and executive function. This was the only test administered by Dr Dedousis.

In the MoCA administered on 28 August 2012 the deceased scored 18/30 which means his cognitive impairment was in the moderately severe range, consistent with vascular dementia. His MMSE continued to be 25-28/30. Associate Professor Brodtmann noted that upon request the deceased was unable to tell Dr Lonie details of bank accounts so at that time he did not have knowledge of his estate.

She noted that the deceased in her view had a stroke destroying his frontal networks preferentially. She observed he had “severe white matter ischaemic change and small focal strokes (lacunar strokes) on the left side”. The white matter was indicative of reduced blood flow. She observed these on CT and MRI scans. She said the white matter disease was extensive even on the images in 2012.

She expressed the view that the deceased had a large right-sided middle cerebral ischaemic stroke which destroyed parts of his frontal lobes sometime between July and September 2012 and which may have caused his admission. It was discovered on CT scan as a result of an investigation of his confusion and delirium.

She explained that the right side of the brain is sometimes referred to as the non-dominant hemisphere but it contains regions critical for attention and cognition. The deceased she asserted was ambidextrous but up to 90% of ambidextrous people maintain left hemisphere dominance for language. The fact she asserted that he developed no acute speech or language deficits in association with his stroke – just worsening confusion – is evidence he was left hemisphere dominant, CB.6/2999.

She further explained that the deceased’s stroke was in the right hemisphere. That commonly affects areas of the brain critical for emotional processing and empathy. She made reference to caregivers commenting on his lack of perception of their mood. His atrial fibrillation (which can cause clots) was a risk factor for stroke. At his request the deceased was on a low dose Warfarin (a blood thinner) and she opined that he had his stroke when he went off his Warfarin. She thought it highly likely that the deceased had many small brain infarcts over time which were “clinically silent”, CB.6/3000. Such strokes she stated are associated with worse cognitive functioning. The deceased also had poor hearing and poor eyesight. Associate Professor Brodtmann said hearing loss is a strong risk factor for dementia and may have further contributed to the deceased’s cognitive decline. He was also prone to variations in blood pressure and heart rate.

In her view the deceased had vascular dementia by the time Dr Lonie saw him. She based that conclusion on accounts of his “impulsivity, lack of judgment, increased irritability… poor reasoning… and mental inflexibility”, CB.6/3002. She also assumed he needed full time care from 16 November 2012 and had stopped driving after September 2012. She also based her views on observations of the carers. There was also evidence of paranoia, CB.6/3003.

She pointed to evidence she found in the various materials she had been given of the deceased’s increased irritability, impaired emotional cognition, poor memory and poor judgment, poor decision making, impulsivity, poor attention, sleep-wake and circadian rhythm disruptions and confusion, and fatigue, CB.6/3004-3008.

She then reviewed the deceased’s condition at the times the various wills were made in some detail. She stated that in her opinion he likely did not have testamentary capacity on 15 June 2012 given the progression of his medical illnesses at the time. He was ill and had an infection and had delirium. It was noted that he had confusion at the time.

She said that on 4 September 2012 the deceased would not have had capacity. He was in St George Hospital in the August with heart failure. He had had a stroke. The CT scan for 12 September discloses a subacute or chronic stroke. The stroke from her inspection of the images looked to be weeks not days old.

She noted however the view of Dr Barrett that the deceased was of sound mind and that of Dr Dedousis who noted cardiac failure and delirium which by 3 October he thought had settled. The MoCA done a week before the September will showed a score of 18 which is evidence of moderately severe cognitive impairment. Mr White had no recollection of the circumstances in which the will was executed.

She then set out a long list of factors exposing his “severe” functional impairments, CB.6/3012-3013.

Thereafter she opined in relation to each and every will he purported to execute from September 2012 onwards, including the wills of 14 March 2013, 22 May 2013, 7 March 2014, and 18 July 2014, that “he lacked testamentary capacity from the time of his stoke until his death”, CB.6/3013-3014.

She then provided a critique of Dr Lonie’s assessments. She agreed with them.

So far as Professor Watson is concerned she asserted that by 2012 the deceased had severe disease affecting his frontal regions. She “vigorously disputes” Professor Watson’s suggestion that Dr Lonie failed to take into account his stroke. She stated that she has not seen “a single person who had a large right MCA stroke and severe white matter disease who would have executive function for testamentary capacity when adequately tested”, CB.6/3015. She disagreed with the impression gained by Professor Watson of the deceased’s conversation with a local council officer, and with his impression of the significance of the deceased’s interactions with Messrs Colley and White.

As for Dr Dedousis, Associate Professor Brodtmann clearly had issues with his professional behaviour, especially the opinions he expressed in emotive language in letters, including where he described the Guardianship Tribunal proceedings as an abuse of process and expressed the view the deceased “is still being harassed by his son...”.

She also made the point that Dr Dedousis is a geriatrician and not a dementia specialist and in particular that he was not so it seems aware of many of the deficits of the deceased and recorded by his carers. He was also out of touch with where the deceased was living. She expressed the view that Dr Dedousis downplayed the deceased’s congestive heart failure as diagnosed by the deceased’s cardiologist. Further she commented on his having taken the note “Background Medical History: Dementia” off a discharge summary of 5 February 2015 and having an amended summary issued. She noted “the reasons for this are not clear”, CB.6/3019.

She described Dr Dedousis’s statement on 21 January 2015 that the deceased was no longer able to make appropriate decisions about “residential, medical and financial issues” and recommending the Power of Attorney and Enduring Guardian “be invoked immediately” as “unusual, given that all his affairs appear to have been managed by his daughters for years prior”, CB.6/3019.

She was further critical of Dr Dedousis’s use of the MMSE and his apparent failure to understand it is not a proxy for testamentary capacity, especially because the MMSE does not test executive function. He never seemed to use any other test, CB.6/3020.

Professor Brodtmann expressed the view that the deceased did not suffer from psychosis but there was evidence of anxiety and depression which she asserted would have affected his capacity to process complex information. She also expressed the view that his memory was impaired. She gave examples such as his giving different amounts of money owed by his son and that he was unable to provide estimates of what was in his bank accounts when asked by Dr Lonie.

Further he did not, according to her, have adequate understanding. He scored 68 in the Addenbrooke’s Cognitive Examination (ACE) administered by Dr Lonie in 2015. The cut-off point for dementia is 86 which is sufficient to make a diagnosis of dementia.

Finally she expressed the view that the deceased suffered a stroke somewhere between July and September 2012 which would have rendered his executive functions so severe that he would no longer have testamentary capacity. In particular she thought he lacked testamentary capacity by September 2012 and likely from 2010.

For her second report she had been provided with an affidavit of Mr Michael Marney and a will of the deceased dated 12 November 2012.

She expressed the view that the deceased lacked testamentary capacity on 12 November 2012 for the reasons previously stated. She referred to the nursing and carers’ notes for the three months prior and the fact that he had prolonged hospitalisation during August-September 2012. She referred to references to him being “confused” and provided a detailed analysis of his various hospitalisations during this period.

As I have said Associate Professor Brodtmann participated in a conclave with Professor Watson and Dr Lonie on 14 November 2019 and in another conclave with Professor Watson only on 27 August 2020.

Some of the disagreement that emerged from the first conclave (14 November 2019) was because Professor Watson lacked some information.

In the second conclave Associate Professor Brodtmann and Professor Watson agreed that prior to 15 June 2012 they lacked sufficient material to express a view. They agreed he likely lacked capacity for the will of 4 September 2012. They disagreed on all other wills, namely 15 June 2012, 12 November 2012, 14 March 2013, 22 May 2013, 7 March 2014, and 18 July 2014.

At the commencement of her evidence Professor Brodtmann read a narrative summarising the views expressed in her reports and the conclaves.

In cross examination she was asked two questions only. First, it was put that she and Professor Watson generally agreed that the deceased had his stroke between July and August 2012. She agreed. Then she confirmed her view that from the date of the stroke he never regained testamentary capacity, T.1175/25-40.

Ms Leanne Kennedy is a clinical neuropsychologist who has worked in the public health system for some sixteen years. She was provided with materials including a number of wills, handwritten documents of the deceased and a very limited set of assumptions, and of course the reports of Professor Brodtmann and Dr Lonie, CB.13/ 5462. She provided a report dated 15 July 2020.

She commented first on the tests performed by Dr Lonie on 21 May 2015. She described the tests in some detail and explained her understanding as to what each test entails. Having set that out she commented that delirium or other illness could affect the scores.

Apart from the repetition of one section of her report (CB.13/5447 and CB.13/5448) Ms Kennedy stated that executive function is notoriously difficult to assess reliably. Her criticisms of Dr Lonie’s approach range from certain of the tests being too narrow in scope, to a test being administered at the wrong time, to her not being familiar with a test Dr Lonie used, the Financial Capacity Instrument, CB.13/5448.

But she agreed with Dr Lonie that at the time she administered the tests on 21 May 2015 the deceased did not demonstrate adequate capacity independently to manage his finances, CB.13/5449.

She accepted that some of the results support the opinion of impaired memory. She expressed the view that visual difficulties could have impacted on the written arithmetic task. She thought that the reluctance of the deceased to disclose his financial circumstances might have been a perception of an adversarial process. She thought too much emphasis was placed on notes of confusion because he had significant medical events in 2012 which “are sufficient to cause delirium”, CB.13/5450.

Ms Kennedy thought the five hours the testing took was potentially too tiring and some caution should be exercised in interpreting the results. While she agreed early stage dementia was possible people can still function with that disease.

She expressed the view that Dr Lonie did not conduct an assessment to test the criteria set out in Banks v Goodfellow. She thought Dr Lonie wrongly extrapolated from function at the time of assessment to past performance.

She said the tests performed by Dr Lonie to assess financial management capacity in 2015 were not designed to test testamentary capacity for the will of 18 July 2014 and again that it is problematic to extrapolate from the results in May 2015 to conclude the deceased was impaired on earlier dates due to the nature of neurodegenerative process. In the deceased’s case it was of cerebrovascular origin. In such a case there is no steady decline; she said the process is “quite individual”, CB.13/5453.

She and Dr Lonie participated in a conclave.

She conceded in cross examination that over time people’s cognitive function does decline, T.1180/45-50.

She was taken to many scores in the tests and agreed they were very often in the low numbers. She was also taken to the exercise with the clock and she accepted that to write the number “16” on the face could not be accounted for by way of visual impairment, T.1186/35-45.

She agreed that one very important aspect of being able to make a will is working memory, T.1188/29-34.

She would not accept that the state of relationships is of importance in making a will, T.1190/1-35.

She did agree that “the complexity of the estate and how to assign different parts of it to different people” would have to be held in mind as part of the task of applying working memory to making a will, T.1191/15-25.

She agreed that his mathematical abilities were impaired and that was a significant impairment to his working memory, T.1192/40-50.

She said that even though a person may have some impairment of cognitive ability they may still be able to recall what changes they want to make to their will, T.1193/5-10.

But merely expressing a preference is not of itself indicative of executive function, T.1193/18-22.

Ms Kennedy accepted she had not been supplied with the cross examination of Mr White, Mr Colley, Dr Barrett or Dr Dedousis, T.1194/25-45.

She also said she was not independently aware of the peer-reviewed three-year longitudinal study Dr Lonie relied upon to retrospectively extrapolate the deceased’s 2015 neuropsychology results back three years to arrive at an opinion regarding his cognitive capacity during the relevant period, T.1195/4-50. She agreed the study recorded that rates of decline were slow and there was little change over a three year period, T.1196/1-T.1197/10.

She agreed the changes in the deceased’s cognitive capacity must have occurred over years, T.1197/25-T.1198/17).

She said cerebrovascular disease does not happen overnight but a stroke may well accelerate the process, T.1198/10-20.

His failure to properly put the numbers on the clock face could not be explained by him simply being tired, T.1204/10-15.

She had commented that the deceased had continued to do his banking independently. She agreed she had some carers’ notes. She was asked about a suggestion of confusion in the carer’s notes which recorded that he tried to cash a cheque at St George Bank, where his account was closed, instead of at NAB. She would not agree such confusion amounted to a “major” error, T.1209/25-40. He merely made an “error”, T.1210/20-25. Upon reflection she agreed he was having some issues and had made mistakes, T.20-25.

When asked about a carer’s note that records an event that occurred one morning at 3am when the deceased wanted to ring the bank, she said “he was making some errors”, T.1212/30-35.

She agreed the MMSE was relatively insensitive for executive function and does not screen for changes in social cognition, T.1213/25-45. It was also a common feature of people with dementia that they lack insight into their condition, T.1215/40-45.

She thought when he was asked questions about his assets and did not respond he was being defensive and uncooperative, T.1223/30-40. The fact that in a mock question he thought Origin was a telephone company was not in her view of moment, T.1226/30-40.

Dr Jane Lonie is a neuropsychologist. She provided numerous reports dated 21 June 2018, 8 October 2019, 18 October 2019, 13 February 2020, 25 February 2020, and 13 August 2020. As I have noted she also participated in a conclave with Professor Watson and Associate Professor Brodtmann on 14 November 2019 and with Ms Kennedy on 3 September 2020.

In her initial report she was asked to review certain medical records in order to express views about the testamentary capacity of the deceased on various dates. She was provided with substantial materials. Much of the materials comprised medical reports or communications between doctors and or lawyers. She was asked to assume that the content of medical and legal correspondence was accurate, CB.6/2744. She was also provided with a summary of various wills.

She set out the criteria and clinical features of major and mild vascular neurocognitive disorder (dementia).

Dr Lonie expressed the view that the deceased lacked insight into or awareness of his cognitive impairments and functional limitations. He exhibited no awareness that he put the current month as November when it was May and put the numbers 1-16 on a self-drawn clock face.

From her report of May 2015, orders were made for financial management.

Dr Lonie expressed views about various of the wills. She noted that Dr Dedousis administered a MMSE in October 2014 (three months after the 18 July 2014 will) and obtained a score of 28/30. He also scored 28/30 in May 2015. Dr Dedousis thought then (in May 2015) the deceased suffered from amnestic mild cognitive impairment, CB.6/2760.

There are however no other medical records to show what if any other tests were carried out in order to detect what level of impairment the deceased had. Dr Lonie stated that there are limitations on the MMSE as a cognitive screening instrument.

She stated she undertook a comprehensive evaluation of the deceased’s cognitive functioning over a five hour period. She formed the view that the deceased lacked insight into his impaired abilities. He had an incomplete grasp of his financial affairs. She said the neuropsychological findings of May 2015 give some insight into his impairment in July 2014.

In May 2015 his delayed memory ability fell within the lowest 5th percentile of his age peers, at a severely impaired level for a man of his age. He was after a passage of 30 minutes unable to detail a series of short stories. His ability to recall newly acquired information after delay was severely impaired. He gave conflicting accounts of the amount owed to him from his son and could not provide current account details.

He could not maintain his attention. He thought his son, Brett, was trying to prove him “nuts”. He was scoring within the normal range on the MMSE but he was displaying severe impairments. Dr Loni noted that the MMSE does not examine frontal executive functions. Therefore she said you cannot infer stability of cognition on the basis of change in the MMSE scores. And the MMSE is insensitive to change or loss of cognitive function over a short period of time, CB.6/2765.

His score of 68/100 on a more comprehensive dementia screening measure (namely, the Addenbrooke’s Cognitive Examination) fell below the lower boundary cut off point for dementia of 86/100. Based on her 20 years of testing she expressed the view that it is most unusual to observe a score of 68/100 in the absence of an abrupt or acute decline in executive function.

Dr Lonie said there was nothing in the material to suggest the deceased did not retain his understanding of the nature and purpose of a will. She also said that there is no medical reason to suggest the deceased was not able to retain knowledge of his interests in the various assets listed in the will of July 2014 “in a general sense” and that his estate was of significant monetary value, CB.6/2767. She thought in May 2015 he did not know the exact value of his estate although he knew where he had bank accounts.

He was able to identify that his children, sister and that his wife pre-deceased him. He was unable to say how much his son owed him. But he performed badly in a number of areas. Based on the results of various tests she was of the view he had had a history of cognitive impairment dating back less than three years. And he lacked insight into is cognitive impairment. When she assessed him on 21 May 2015 the deceased was exhibiting significant cognitive decline consistent with vascular aetiology.

On 18 July 2014 in her opinion the deceased was able to understand the nature of a will, the potential beneficiaries and in broad terms his estate, but he did not retain working memory capacity to freely recall past information to weigh up the respective claims of the beneficiaries and he was suffering from a disorder of the mind in the form of a Major Vascular Neurocognitive Disorder that served to poison his affection towards his son and he did not retain capacity in July 2014.

Dr Lonie said the deceased’s need for personal care is also an important indicator of his impairment. There was also a history of frequent changes to his wills in the period June 2012 to May 2014. She noted that there is little if any details as to how the deceased’s capacity was assessed over this period.

On the basis of the tests she conducted in May 2015 Dr Lonie considered that the deceased did not have sufficient cognitive ability to weigh up the respective claims of the beneficiaries of his estate when he made the wills dated September 2012 and following. At the time he executed his September 2012 will his processing speed, working memory and executive functioning were likely to have been significantly compromised.

For her next report dated 8 October 2019, Dr Lonie was provided with the evidence filed in the matter including that of both lay and expert witnesses, hospital records and the Private Carer Notes.

In summary she stated that the deceased understood the nature and effect of will making, retained at least an approximate understanding his estate was significant and was able to comprehend his primary beneficiaries, but that during the period September 2012 to July 2014 he was suffering from a Major Vascular Neurocognitive Disorder on each occasion he executed his wills. Therefore she said it is likely the wills executed in that period were impacted by his executive impairment which would have affected his ability to weigh up the respective claims of his beneficiaries, especially in relation to his large, complex estate and the adversarial family conflict and dynamics.

After a thorough review of the various records she expressed the view that the correspondence between Mr White and the deceased across April, May and June 2012 was evidence that he retained adequate working memory capacity to bring to mind and consider his estate as whole in weighing up his will of June 2012. She accepted this view was contrary to her earlier opinion.

In addition she noted the hospital records for the period 26 June to 3 July 2012 contain no observations of confusion or impaired cognitive function. She said it is extremely difficult to provide an opinion about whether he retained capacity at that point in time. However she regarded him as not having capacity from September 2012 onwards.

Dr Lonie’s next report was dated 18 October 2019 and she was asked specifically about the deceased’s will of 12 November 2012.

She noted the primary alterations within the 12 November will appeared to relate to the removal of the defendant as executor and trustee, the assignment of half the shares in Decahill and Castlecrag to the plaintiffs, and the forgiveness of debt, loans, and mortgages as they related to the plaintiffs.

Having reviewed additional materials she was of the view that his capacity did not differ between September and November 2012. Therefore she considered he did not have capacity to make the 12 November 2012 will.

Dr Lonie’s next report is that of 13 February 2020. She was asked to review the cross examination and materials of Dr Dedousis. The essence of her report is that she clearly had reservations about Dr Dedousis and that MMSE does not assess executive function.

For her report of 25 February 2020 she was asked to review the cross examination of Mr White. She commented that Mr White appeared to have based his opinion on the deceased’s testamentary capacity on the deceased’s expression of a preference and his issuing of instructions. But she thought Mr White did not appear to be aware of the deceased’s underlying cognitive impairment. She said she would not alter her views in relation to the deceased’s capacity as a result of Mr White’s evidence. She thought the way Mr White went about his questioning of the deceased provided no reassurance the deceased retained capacity in accordance with the decision in Banks v Goodfellow.

In her last report of 13 August 2020 Dr Lonie she responded to Professor Watson and Ms Kennedy.

She thought the fact that Professor Watson was not provided with the carers’ notes was important. She also explained and discounted the suggestion that vision impairment was an issue. She outlined the clocks drawn by the deceased in August 2012, September 2012 and May 2015. Each was an inaccurate representation of the clock face.

She rejected the criticism of her analysis by Professor Watson.

She also responded in detail to Ms Kennedy. Again she commented Ms Kennedy was not supplied with copies of the carers’ notes. She made the point that there is a difference between an individual expressing his/her thoughts and wishes and the ability to do so as a result of having engaged in balanced, holistic, reasoned and reality based/insightful thought and with a clear objective as to the outcome, CB.13/5550.

She like Associate Professor Brodtmann made a statement at the commencement of her evidence, T.1232-1240. It was a concise summary of her reports.

She highlighted in particular the deceased’s inflexible thinking, his need for full time care from November 2012 onwards, his misunderstanding of the clock face during his tests, which were not in her view explainable by reason of his vision, and importantly that he was unaware of his deficits.

She accepted that she had proceeded to form her views given the severity of his performance during his May 2015 neuropsychological assessment and thought it would date back to August/September 2012 and could have dated back earlier, T.1240/20-35.

She felt less confident extrapolating back to an earlier point, T.1241/25-30.

She said it is likely there would have been progression during that three year period. She agreed that one would need to look at the day to day activities and effectively the lifestyle factors of the deceased, T.1242.

Dr Barrett swore one affidavit in the proceedings on 25 June 2019.

He said he saw the deceased for many years as his patient ([6]). He said the deceased was often accompanied to appointments by Aleta, but in later years was generally accompanied by a carer ([9]). He stated ([10]):

He further stated the deceased had no hesitation in correcting anyone’s comments or expressing disagreement ([11]). He recalled that the deceased had a history of atrial fibrillation and was at risk of having a stroke ([13]).

He stated that he was aware from Dr Dedousis that there was a history of family issues which involved the deceased’s children but did not discuss these issues in detail with the deceased ([16]).

He recalled that the deceased appeared stressed during one of the Guardianship Applications. He also recalled that the deceased appeared anxious and stressed when he was having some tax trouble ([19]-[20]).

He further stated that in approximately the last 12-18 months of the deceased’s life, although he was still able to converse with him, Dr Barrett believed he had some mental decline, stating he was forgetful, sometimes confused and had issues with his short term memory ([21]).

He said that whilst the deceased was his patient he was comfortable he could make decisions about his welfare and treatment ([22]). He said that scans showing microvacular changes do not necessarily mean a person is suffering cognitive decline ([23]). Further there are various types of dementia that exhibit different symptoms and various rates of decline ([24]).

During cross-examination Dr Barrett said that before retirement he was a medical practitioner practising as a general practitioner but did not have any specialist qualifications in say geriatrics or neuropsychology, T.288/20-35.

The deceased would consult him on specific problems and also for general check ups, T.288/45-47. He would see him on a reasonably regular basis.

The deceased had atrial fibrillation which is an irregular heartbeat. It can damage the heart and the main worry is the risk of stroke, T.289/5-10.

The deceased also had rheumatic heart disease and mitral stenosis, namely a faulty valve in his heart, and that could impact on his risk of stroke, T.289/40-45. He had a number of other problems and was on a number of medications, T.290/5-25.

His daughter Aleta would come with him and he could not recall him ever coming alone, T.290/30-40.

For any cognitive issues he would usually rely on Dr Dedousis but he would periodically measure the deceased’s cognition himself, T.291/5-10.

The MMSE was the only test he used. He had not heard of the MoCA nor the ACE-R test, T.291/20-35. He was not familiar with testing that could take some hours, T.291/38-44.

He purely relied upon the MMSE as a simple tool to use in general practice to alert him of any early problems that might be developing, T.292/1-5. He performed a MMSE test on the deceased on 31 October 2012, T.293/25-30. He agreed that if a person got a small number of some basic questions wrong that might flag a need for further testing, T.295/1-10.

He was aware the deceased had a stroke in the period leading up to September 2012, T.295/30-35. He agreed on the basis of the CT scan report that the deceased had his stroke sometime after 6 July 2012 when he had his previous CT scan, T.297/20-25. He was also aware that the deceased had previously suffered from microvascular disease, T.297/35-40.

He saw the deceased on 11 September 2012 and he thought he was of sound mind, T.298/1-10. If he had noted a score of 20 out of 30 he would not have expressed that view (on 26 September the deceased scored 20 out of 30 on a MMSE test done at Calvary Hospital). Dr Barrett’s report was dated 24 September.

Had he been told that the hospital records showed the deceased was unable to follow three commands at a time and that he was confused he would not have said the deceased was of sound mind, T.299/20-25.

He was not aware that hospital staff had recommended he have full time care and that would represent a decline in the deceased’s condition, T.300/30-40. He was it seems in hospital from 11 September 2012 until 24 September, T.306/25-30.

Dr Barrett agreed that a common feature of dementia is that people have no insight into their condition and they also become non-compliant with their medication, T.307/20-35.

He agreed that dementia can start many years before symptoms emerge, T.312/45-50.

The usual flow of a consultation was that Aleta or a carer would state their concerns with the deceased who was able to give his own views on his condition, T.316/15-30.

Dr Dedousis swore one affidavit in the proceedings on 8 August 2019.

Dr Dedousis prepared a report regarding his treatment of the deceased (Annexure A to his affidavit). He said he began treating the deceased in mid 2012 and continued until his death.

He then noted:

He further recorded that it was his view that the deceased retained his testamentary capacity throughout 2012, 2013 and 2014. The deceased’s capacity was reviewed in the presence of his family, and although there was some element of short term memory loss this did not mean that the patient did not retain capacity to make his own decisions.

Dr Dedousis stated that following a fall in January 2015 and the subsequent surgery and hospital stay the deceased’s condition began to deteriorate and his ability to make decisions became compromised. He stated that he had substantially recovered by May 2015 and his capacity was re-established. The deceased began to decline again in early 2016 and his “dementia worsened from mild to moderate and eventually severe prior to his death.”

He stated that he changed the death certificate to reflect a term of dementia for two years. He stated that he believed this was correct, and from a clinical perspective his cognition only from about the beginning of 2016 onwards had declined significantly. He did not want him labelled as demented and then assumptions automatically be made about his capacity.

In cross examination Dr Dedousis acknowledged he was a specialist geriatrician, T.322/15-17.

He elaborated by explaining that his speciality involved looking after older people usually over the age of 65 from a medical, cognitive and psychological perspective and generally their wellbeing, T.322/20-30.

His first contact with the deceased was when the deceased was in St George Private Hospital, T.322/35-40.

The deceased was a complicated case with multiple problems that tended to change a bit, T.323/35-40

He met the defendant once only during a meeting with the Chief Executive of the Calvary hospital when some issues arose about him visiting the deceased, T.323/45-50.

He would meet the daughters regularly not only in hospital but also in the office, T.324/5-10.

He explained that geriatricians and neurologists overlap as far as some of their work is concerned, especially when it comes to cognitive issues, dementias and behavioural problems. He would engage a neurologist if he had a patient with seizures as he would not be expert in managing such a condition. He would also get a further opinion from a neurologist if there was a particularly interesting presentation of a neurodegenerative disease. The neurologist would do important work such as strokes, T.325/20-45.

He might treat strokes but more minor strokes. He would more likely manage cognitive deficits not more major strokes and he was aware that there are practitioners who specialise in cognitive geriatrics, T.326/5-20.

He does sometimes send patients for cognitive testing by a neuropsychologist, T.328/1-10.

In treating a patient he would also consider a patient’s mood to detect if for example a patient might be depressed or have a psychological problem, T.330/1-15.

Many of the times when Dr Dedousis visited the deceased he was upset about impending legal situations and Dr Dedousis was concerned to see if that was affecting his quality of life. Dr Dedousis said in evidence that emotional lability often occurs in people who have vascular changes in their brain, T.330/25-30.

It did cross Dr Dedousis’s mind that the deceased was suffering from dementia. But he did not refer him for any neuropsychological assessment because he thought the scores he got on his tests (MMSE scores) and his interviews were enough, T.331/1-5.

He agreed that as a general rule patients with dementia lack insight, T.331/20-22. He did not know that the deceased was a multimillionaire but the word “millions” was mentioned, T.332/20-30.

Neither the deceased nor his daughters were keen to have neuropsychological testing and he did not see a clinical need for one, T.333/1-10.

The deceased told him never to discuss any medical issues with the defendant. He obtained any history from his two daughters, T.334/8-10.

At each consultation he had with the deceased, his daughters were always in attendance, T.334/35-40.

He said you can come up with a firm diagnosis of somebody’s cognition by just having a consultation, T.335/10-15. As a geriatrician it can be done without a neuropsychologist performing tests, T.335/20-25.

He agreed he told the deceased that it was not clinically necessary for him to have neuropsychological testing, T.336/15-20. He was initially concerned he may have missed something and thought there should not have been a hearing in the first place, T.336/30-35.

He was aware that a CT scan on 12 July 2012 indicated small vessel disease in the brain but a CT scan in early September indicated a hypodense area in the left white matter of the subcortical region which was not acute but old, T.336/35-37.

He agreed that the notes show that on 6 July 2012 a CT scan indicated no evidence of any recent stroke, T.338/35-36. The notes also indicated that he was refusing monitoring and was agitated and aggressive, T.339/15-20.

He was taken through a series of hospital notes (TT.339-342). He was asked whether he was aware that the deceased had a MoCA test done in the August in which he scored 18 out of 20. He was aware that the MMSE does not test executive function, T.345/30-35. The questions are fairly basic and do not change and it is not sensitive to whether or not a patient has dementia, T.345/35-45. If a person scored 29 out of 30 but the question they failed on was which city they were in, that might require further investigation, T.346/40-45.

He was never shown any notes which were taken by carers, T.347/25-30.

He would sometimes do a MMSE on bits of paper, T.349/25-35. It is a common feature that patients with dementia become aggressive to those who assert they have that condition, T.351/30-35.

People with dementia can start to become non-compliant with taking their medication, and it is a condition for which there is no cure and people deteriorate at variable rates, T.352/20-25. He agreed he had never seen a document from Sutherland Hospital of 12 September 2012 which stated the deceased had “Cognitive Issues/Dementia”. He said he had not seen the document, T.353/1-10.

Having considered the notes from Kareena Private Hospital for September 2012 and their contents he agreed he would not have wanted the deceased making decisions about financial and property matters at that time, T.356/35-40.

During a meeting at the hospital on 24 September with members of the family the word “Drummoyne” was mentioned. He thought it was a nursing home or retirement village. He never actually found out what it was. He knew the deceased was very concerned about leaving his home, T.359/25-35.

He was taken to the Calvary notes but had no specific recollection of conversations with the family. He was perplexed as to why the Guardianship Tribunal proceedings were happening while the deceased was still in hospital, T.363/15-20. He was concerned he was not consulted as he would have had an input into the hearing, T.363/34-35.

Dr Dedousis assessed the deceased. He had a prolonged period of admission and although he had memory issues or cognitive issues Dr Dedousis thought he had the capacity to decide what he wanted, T.364/20-40. He wanted to go home.

He accepted the deceased had a MMSE on 26 September 2012 and scored 20 out of 30. He thought that such a person could make decisions for themselves, T.367/45-50. But he also agreed that a score of 20 out of 30 could indicate a problem with someone’s capacity. T.370/40-45.

He would follow a patient’s instructions unless a patient was mentally impaired, T.375/20-25. He agreed that he never spoke to the defendant about the deceased’s health but that he had spoken to his daughters, T.376/1-10.

He stated that a patient’s state can vary over the day and their situation can vary on a daily basis, T.377/15-30. He was unhappy that the Guardianship Tribunal application was being lodged, T.378.5-15. He also agreed he wrote a letter to the Tribunal in which he said the deceased had no issues, T.379/5-20. He agreed that in the letter he said he was quite “concerned and upset having heard about this guardianship application…”, T.379/15-25.

He did not consider the deceased was under the influence of his daughters, T.381/35-40. He agreed he “inserted himself’ in the process by writing to the Guardianship Tribunal on 3 October and he advised the daughters to get legal representation, T.383/30-40.

He agreed that he did not mention in the letter that the staff were frequently describing the deceased as confused, T.384/10-12. He agreed that his aim in writing the letter was to bring the Guardianship proceedings to an end, T.384/37-40.

He thought it was not an appropriate time for a neuropsychological test because of the deceased’s condition. It would be better if his cognitive issues settled down, T.385/5-15. He said it would not have been a fair reflection of the deceased’s capabilities, T.385/30-35. And he wanted him to be at his best before doing the test, T.385/48-50.

He agreed however that he did not mention any issues about the deceased’s cognitive state in his letter, T.386/1-15. And he agreed that to state that there were no issues was not correct, T.386/20-25. He suspected it was Mr White who asked him to write the letter, T.386/28-30.

He agreed that in his letter of 25 October he did not mention the deceased had had a stroke in his right frontal cortex. He agreed that such a stroke could affect decision making, behaviour and executive function. He also agreed he did not mention any of these things in the letter to Mr White, T.391/5-10.

He also recommended that an AVO might be appropriate because the deceased did not want his son visiting him, T.390/40-50. He agreed the deceased’s mobility declined in 2016.

He denied he was collaborating with the daughters to defeat the Guardianship Tribunal proceedings, T.396/5-15.

He agreed he wrote a letter on 25 February 2013 in which he described the deceased’s son as harassing his father, T.400/15-30.

He agreed he had never visited the deceased in the home environment. He was taken at length to the carer’s notes (TT.401-408).

He agreed that in March 2015 he wrote a letter in which he referred to 24 hour home care being organised for the deceased and accepted that he did not know the deceased had such care from in fact November 2012, T.460/15-25. He also agreed that he would have wanted to know that fact, T.460/40-45.

He said he believed he never saw the Guardianship Tribunal applications, T.460/48-50.

He agreed that the 2012 Guardianship Tribunal application was for the deceased to be at Drummoyne for two months and then return home, T.460/1-10. He did not see the application and was not aware that the defendant opposed the deceased going into a nursing home, T.462/1-10.

He agreed that the deceased was concerned he was being manoeuvred into a nursing home and on the documents he was shown in cross examination that was not true, T.463/20-30.

He did not see a copy of the August 2014 Guardianship Tribunal application either, T.464/1-5. Again the deceased was quite fearful and upset, T.464/35-36.

He agreed that if he had known what the application was really about he possibly would not have suggested an AVO. The information he got about the application was from the plaintiffs, T.465/25-30.

He had not been told that the deceased could not make contact with his son because he did not know how to do it, T.467/10-15, and he would have wanted to know that, T.467/15-20.

He agreed that all that he knew about the applications would have come from the plaintiffs, T.468/19-24.

He denied being aware that in 2015 the deceased had dementia; rather he was well aware the deceased was suffering from the effects of delirium, T.470/44-51.

He was asked why the hospital notes had references to dementia and he said many persons mistake the effects of delirium as dementia, T.471/1-15.

He agreed that in a letter to Dr Barrett on 3 June 2014 he spoke of the deceased’s cognitive impairment as being “mild”, T.472/40-50.

Had he known that the business affairs of the deceased involved interests of in excess of $100m, that would have cast a different shadow over what he was looking at. He was not aware of that financial situation, T.474/35-45.

He has read extracts from the carers notes about the deceased forgetting about renovations done on his home within months of that occurring. Had he known that, he would have wanted to know what his behaviour was like outside the hospital rooms, T.478/5-10.

The information about his condition would come from the plaintiffs, T.478/35-40.

He was not told that the plaintiffs were assisting him with his financial matters in 2014 and that would have been something he would have wanted to know, T.479/10-25.

He had many conversations with Mr White and also with Aleta and the deceased, T.488/1-5.

He agreed that his office was contacted by Aleta in April 2015. It was in relation to a discharge summary from Sutherland Hospital that mentioned dementia, T491/30-50. She was concerned her brother wanted to attach a copy of the discharge summary for the purpose of a neuropsychological report.

In a letter of 27 April 2015 he sent a letter addressed “To whom it may concern” with an amended discharge summary, with the term dementia removed, attached. He was not sure but he assumed he had done it, T.492/25-35.

He arranged the correction, the issue having been brought to his attention by Aleta, T.492/44-45. He wanted to ensure the discharge was accurate and that dementia was not confused with delirium, T.493/25-28.

He was taken to the deceased’s death certificate and asked whether he had arranged to amend that as well. He agreed that he was approached by a member of the family and he reviewed the certificate and it had said that there had been “dementia, years” and he disagreed and wanted it corrected, T.494/1-5.

He did not remember having a conversation with someone from a funeral home about the death certificate. He said that he first diagnosed dementia in 2015, T.494, 45-50.

The dementia he had in 2015 was full-blown dementia, that is “moderate to severe dementia”, T.495/15-25.

He insisted that the MMSE is a screening test for dementia, T.495/45-50. He stood by his evidence at T.345 and agreed that a diagnosis could not be made using that test alone, T.496/10-35.

He agreed that the MMSE was not a diagnostic tool, T.497/20-25. He agreed that he sent a letter to the GP, Dr Barrett, on 15 December 2015 but did not tell him he thought the deceased had full blown dementia. He also agreed that it would be very important to let the GP know that fact, T.498/25-45.

He wanted to correct the death certificate so it was accurate and it was done in response to the family, T.500/5-20. It was put to him that the real reason he corrected the certificate was to ensure it was more difficult to call into question the deceased’s capacity after he died. He did not accept that, T.501/10-25.

The certificate was completed by an intern whose responsibility it was to complete it, T.502/1-15. He never referred the deceased to a neurologist or a neuropsychologist for testing and he knew there would be disputation between siblings about the estate, T.503/1-15.

Mr Gary White swore one affidavit on 2 November 2018. He also swore one affidavit as an attesting witness on 25 February 2019.

Mr White stated that he did not recall ever having a conversation with the deceased where the deceased did not appear to understand or respond appropriately. Mr White stated that at no time up until mid 2015 did he think the deceased was unable to provide instructions ([9]).

Mr White said that at about the end of April 2012 he received a handwritten note from the deceased attached to a handwritten will that the deceased had prepared. Mr White prepared a will based on those documents. The deceased made several comments and gave further instructions and Mr White made various amendments. The will was then signed by the deceased at Mr White’s office on 15 June 2012. Mr White said he “followed [his] usual practice” and the will was witnessed by Mr White’s receptionist, Ms Du[n]phy ([20]).

Mr White’s usual practice was that he would have the testator read the will to himself in his presence. He would then ask, “Is this in accordance with your wishes? Do you have any questions or do you want anything explained? Do you want any changes”. If any explanation was needed he would provide it. If changes were needed he would make them immediately and repeat the process. He would then have the testator sign the will in the presence of two witnesses ([18]-[19]).

Mr White said that he never consciously considered the test in Banks v Goodfellow at that point. However given the fact the deceased was able to write out by hand and send him instructions, the handwritten comments the deceased made on each of the revised versions of the will, and that the discussions he had with the deceased were “all so logical and coherent”, there was never any question in Mr White’s mind that the deceased may not have had the requisite mental capacity to make a valid will ([21]).

Mr White said he did not recall the circumstances in which he received instructions relating to the 4 September 2012 will ([22]).

In relation to the 12 November 2012 will he said that in about mid September 2012 the deceased informed him he wanted to make some changes to his will. He prepared a new will and then arranged for another solicitor, a Mr Michael Marney, to have a short conversation with the deceased about its contents and witness the deceased’s signature. He indicated that he explained to the deceased that was because he was concerned about a challenge to the will after the deceased passed away ([26]-[31]). However Mr White later stated that he could not recall whether he had actually said that to the deceased (T.24/40).

Mr White said that in 2013 Janine commenced proceedings regarding the properties owned by Motasea Pty Limited. Mr White represented the deceased and received instructions from him about the proceedings ([35]-[40]). He said no application was made to the Court that the deceased was not mentally competent or needed a tutor ([39]).

Mr White said he received faxed handwritten amendments to be made to the deceased’s wills in 2013, but he does not recall the particular details of the deceased’s making of the 2013 wills ([41]-[44]).

Mr White recalled that on 3 February 2014 the deceased faxed through handwritten amendments to be made to his will. He later had a discussion with the deceased regarding the effect of his proposed changes and that there was a risk that Brett and Janine might argue that they had not received appropriate benefits from the estate. Mr White said he advised the deceased to prepare something in writing outlining why he had divided his estate the way he had. The deceased later signed a statutory declaration detailing the reasons for his 7 March 2014 will ([45]-[48]).

Mr White said that in May 2014 he received a fax from the deceased with further handwritten amendments to be made to his will ([50]-[54]). He said he made the changes the deceased suggested and sent the draft back to him. Mr White said that at sometime prior to 18 July 2014 the deceased indicated he would also like to add a statement about why he had made no provision for Janine. Accordingly Mr White added additional subparagraphs to the statutory declaration that had been attached to the 7 March will. Mr White “followed [his] usual practice” and the deceased executed the 18 July 2014 will and amended statutory declaration at his apartment.

Mr White said he continued to act for the deceased until 2015 in relation to various transactions for him and his companies ([56]).

In cross examination Mr White agreed he was admitted to practice in 1974 and ceased practice in 2015, T.26/49-50.

He had a retainer from Harvey World Travel for 25 years and then did commercial work and conveyancing, not so much litigation. He drafted wills from the time he started, T.27/1-15.

He was asked why he was suspended from practice. He said he took fees out of an amount he received for a client. He had a solicitor write to the Law Society and they have not yet had a response, T.28/10-30. He did not conduct a trust account, T.29/25-40. After many questions he accepted that his failure to keep a trust account was part of the complaint against him, T.30/20-50 and T.31/1-14.

He had to surrender all his files and two other matters came up. One was a litigation matter and the other involved the administration of an estate. The litigation matter involved an allegation that he charged too much and deducted the amount of fees from proceeds received. The estate matter involved him using moneys to pay himself when certain amounts should have gone to beneficiaries. He charged monies to administer the estate when he was not entitled to, T.33/25-50 and T.34/1-40.

He was unsure whether a claim was to be made by the estate of Gooley and he never handled funds for the deceased. There was a time when he did not act for the deceased. It was a law firm called Haydon Solicitors. But from 2012 onwards he would have done most of the deceased’s work, T.36/10-45.

He agreed that he has not chased up the Law Society about the complaints. But he accepted he did do something wrong, namely taking money for costs without authority. He has not followed it up with the Law Society because of the expense and the fact that he has turned 70, T.37/35-50 and T38./1-25.

He thought the concept of fiduciary “applies to nearly all solicitors” and he had not heard of the notion that he could not have claimed a commission from an estate without informed consent, T.39/5-25.

Between 2011 and 2014 he acted for the deceased on the sale of nine properties, T.39/44-46. At no time during any of the transactions did it cross his mind that the deceased had any problems. His consideration of the deceased’s capacity was based on the way the deceased talked to him and the instructions the deceased gave him, “bearing in mind the very first of his wills that I did was handwritten by him and I thought he did a fairly good job…”, T.40/30-50.

It was his practice for the deceased to come in and read a will to himself. Mr White would ask the deceased if that is what he wanted and needed and if he wanted any changes, T.41/10-30. He had similar conversations with other clients. As at 2012 he had not seen the deceased for about 10-15 years and he asked him if that was what he wanted and he said yes, so he arranged for the will to be executed, T.42/35-50.

On 2 May 2012 he prepared a draft will and sent a copy to the deceased who sent back a fax on 9 May together with a handwritten note, T.46/40-50. He agreed that there were various exchanges with the deceased about the will. He met the deceased on 15 June and the will was signed, T.52/35-50. He did not ask any questions about whether any of the various corporate entities were trustee companies and no questions about why the deceased was executing a will in those terms, T.53/20-50.

He asked no questions about the size of the estate, T.55/10-15. He did not ask him whether he made previous wills, T.56/5-10. He could not recall whether the handwritten instructions came after a conversation with the deceased or not, T.56/25-30. He cannot recall any particular conversations with the deceased and he had no file note to assist him, T.57/5-10. He could not remember the actual process of signing the will, T.59/30-40.

He could not remember who brought the deceased to the appointment for the signing of the June 2012 will, T.63/1-5.

He had no recollection of the circumstances of the signing of the 4 September 2012 will or Power of Attorney, T.63/34-38. He had lots of matters on the go and unless he had a file note he could not remember. The Law Society had uplifted all his files, T.64/1-20.

Mr White was not aware the deceased was on day leave from hospital to go to his office in September 2012. If he had known that the deceased had had a massive stroke in the weeks or months prior to his appointment in September that would have raised “a red alert”, T.65/15-25. He would have liked to know if he had cognitive issues or dementia, T.66/5-25.

He had no recollection of seeing the deceased on 4 September or the circumstances of the signing of the will or Power of Attorney, T.69/20-45. He then said what he would have said at the signing of the Power of Attorney, T.70/20-30. He believed he told the deceased the effects of signing such a document, T.70/45-50.

He remembered attending a meeting at Kareena Private Hospital with Mr Colley, and the plaintiffs, T.73/35-50. The meeting took place on 19 September 2012 but he could not remember what was discussed, T.74/5-50. He observed the deceased was “a bit stressed” when he saw him in hospital but he did not know about his cognitive ability, T.76/25-40.

He accepted that he may not have a basis for saying the deceased was fine because he could not remember what he talked to him about, T.77/25-30.

He could not explain why the deceased signed a Power of Attorney on 4 September and 9 November 2012. On both occasions he appointed his daughters as attorneys, T.80/20-30. On the same day he prepared another draft will which he took away. He accepted this all may have been done because of a concern about the deceased’s mental state on 4 September, T.81/5-10.

The deceased returned to his office on 12 November 2012 to sign the will, T.82/5-10. He denied having any concern about the deceased’s capacity on that date, T.82/35-40. He was asked numerous times why he wanted another lawyer to witness the deceased’s will on 12 November and he could not explain, TT.82-84.

He could not remember who was at the office the day the will was signed. He did not ask the deceased why he was changing his will, T.85/30-33. He never turned his mind to why the deceased had changed his will three times in five months, T.85/35-40. He asked him no questions about who he was providing for, what his assets were, whether any of the companies were trustees and he could not be sure that the deceased understood what he was doing, T.86/20-25.

He had other persons witness a will if he thought there may have been a chance it might be challenged. But again he could not explain his reasoning, T.92/5-45.

There were two changes made to his will between 12 November 2012 and 14 March 2013: Melinda was appointed Appointor of the Gooley Family Trust and Brett was no longer to get the shares in Barton Press, they were to go to Aleta, T.97/35-50. It did not strike him as odd that the deceased made four wills in the space of nine months, T.98/5-10. He made another will on 22 May 2013, T.98/33-35, in which the shares in Barton Press go back to Brett, T.99/9-11.

He accepted he got a fax from the deceased dated 3 February 2014 and then the deceased signed a will on 7 March 2014, T.108/30-40. He did not ask him why he was changing his will, T.111/10-20. Again he said he was not concerned about the deceased’s capacity, T.113/1-25. He did not explore his instructions; he simply acted on a written document prepared by the deceased, T113/14-15. He was not concerned that the deceased had misdated the fax, T.113/47-48. He did not consider getting the deceased examined to test capacity as he was still giving Mr White instructions about his wills in his own writing, T.115/30-35.

He was not concerned the deceased had made six wills in eighteen months as there was a reason for the change in the 7 March 2014 will, T.116/10-11.

He agreed that by early 2014 he had begun to do legal work for Melinda and Aleta, T.119/38-40. He also could not explain why he was in 2014 preparing a statutory declaration which was inconsistent with the 15 June 2012 will, T.121/15-45.

He confirmed he had no independent recollection of the circumstances that led to the signing of the 4 September 2012 and 22 May 2013 wills, T.135/20-25.

He drafted the 18 July 2014 will based on a handwritten note but without meeting the deceased for that purpose, T.136/25-35. He went to the deceased’s apartment because the deceased had difficulty getting around, T.136/40-45.

At one point he became aware that the deceased could not find a number of title deeds so he went over to his house to assist him to find them. He also knew the deceased had been unwell, T.143/5-35. He also acted for the deceased’s daughters as well as the deceased in the 2012 Guardianship Tribunal, T.146/10-15. In the 2014 Tribunal hearing he acted for the daughters and not the deceased, T.146/40-45.

He was again asked about acting for the deceased on property transactions and how proceeds were banked. He accepted that on some occasions he banked cheques payable to the deceased into the deceased’s accounts and on some occasions moneys were banked into his own account, but only if “they were agreed costs”, T.151/15-30.

In re-examination Mr White said he did write to Dr Dedousis to ask for some advice on the deceased’s medical condition, T.169/5-10.

He explained the differences in the two powers of attorney were the first required both to act together whereas under the second they could have acted “solely and jointly”, T.170/30-35.

He accepted that the deceased did try and contact him on a Saturday, T.171/10-25.

Mr John Colley swore two affidavits in the proceedings on 25 October 2018 and 19 July 2019 respectively.

In his first affidavit Mr Colley stated he managed the deceased’s personal tax and accounting needs and the accounting needs of the various companies of which the deceased was a director from about 2000 until the deceased’s death. He said he continues to manage the estate’s accounts and taxation need and the accounting requirements of the deceased’s companies ([7]-[8]).

Mr Colley said he would provide advice to the deceased on occasion but the deceased always made the final decision and often did not follow his advice [10]).

He said that over the years there were a large number of matters on which the deceased sought his advice, particularly in relation to the complicated nature of the deceased’s financial situation and the various corporations and trusts he controlled or managed, and in relation to ongoing disputes with Janine and the defendant ([13]). Mr Colley said he was also involved in the deceased’s succession planning over the years. Generally it was the deceased’s plan to give to each of his children one of the various companies he controlled “except where there was some conflict or dispute between him and the original planned beneficiaries” ([14]-[21]; see also Colley, 19 July 2019, [8]-[10]).

Mr Colley deposed that from 2013 onwards he had many interactions with the deceased in relation to his succession planning and financial management. In 2013 and early 2014 Mr Colley discussed with the deceased ways to resolve a dispute with the defendant which mainly involved one of the deceased’s companies, Breda Pty Ltd. The deceased sent many faxes with instructions and notations during this time and there is ongoing correspondence between Mr Colley and the deceased about the defendant’s involvement in Breda ([27]-[40]).

In around mid 2014 the deceased sent Mr Colley a fax requesting advice on the implications of the defendant’s resignation as director of Breda. Again the deceased and Mr Colley exchanged correspondence, with the deceased asking for advice and providing instructions on a variety of matters in relation to the companies and properties controlled by the deceased. In late 2014 Mr Colley and the deceased were involved in preparing for an ATO audit of all the companies and trusts controlled by the deceased ([41]-[61]).

In his second affidavit Mr Colley responded to the affidavit of Brett Gooley sworn on 20 March 2019. He stated that the deceased possessed and maintained his ability to clearly understand complex taxation and law concepts and advice at all times relevant to these proceedings ([12]).

In cross examination Mr Colley accepted he was the deceased’s accountant for about fifteen years, T.181/20-25. He also did accounting work for his daughters and one of their husbands, T.181/45-50. He has also started to do some work for the estate, T.182/15-20.

The deceased’s estate plan was to look after the interests of his children, T.183/40-45. Over the years he had observed the deceased build up a large asset base by acquiring real estate and rarely selling, T.186/25-40.

He arranged his affairs so as to have money offshore and he was the subject of a tax audit, TT.187-190.

Over the years he got to know the deceased well, T.192/45-50. He was a self- made man and headstrong, T.193/45-50. However in the later years he was fearful and intimidated by his son, T.194/10-15.

Broadly speaking he wanted to provide something for all of the children but when there were disappointments or altercations he changed things, T.195/5-15.

He remembered a meeting at a hospital when the deceased said that he was concerned his daughter Janine would squander her inheritance, T.198/30-40. Melinda and Aleta organised the meeting as they were looking after his “financials” at the time, T.199/1-6.

The defendant came into the meeting but he did not hear him saying his father was septic and had delirium and that he could not make his own decisions, T.200/1-20. Nor did he remember the defendant taking his father back to his hospital room, T.201/8-10.

Numerous medical extracts were read to the witness and he was not aware of anything like confusion when he was with the deceased, T.202/35-40.

He did not realise the deceased had had a stroke in the weeks or months prior to 18 September but said, “I’m an accountant not a doctor”, T.203/15-20. If the client sounds rational and reasonable that is generally all he is concerned about, T.203/22-23.

It was not suggested to him by Aleta or Melinda that their father had had a stroke and nobody suggested it, T.207/1-10. Further he observed nothing “of the order of confusion”, T.207/10-12. He accepted that the defendant had for some time been suggesting that his father was unable to make his own decisions, T.207/40-45.

He decided to render an account to Melinda and Aleta but not because the deceased was incapable, T.214/40-45. He accepted that he knew that Aleta was helping with her father’s bank accounts in mid 2013, T.218/38-50. He denied he was in fact receiving instructions from Aleta notwithstanding a letter he sent to the deceased on 24 April 2013, T.220/40-50.

He had to write to the deceased in October 2013 to remind him that the BAS returns related to a three month period, T226/20-35. That did not cause him any concern, T.226/40-50. He also accepted that certain decisions to sell properties belonging to Motasea Pty Ltd were not astute financially. But he thought the deceased had rational reasons, although it was “pretty brutal on his daughter”, T.227/15-25.

He was not later concerned when there appeared to be a problem about the deceased having lost some bank statements, T.229/25-40.

He was not concerned when the deceased asked him to be provided with rental statements or in having to remind the deceased of things he had previously advised him of, T.256/40-45. There was nothing in 2014 that caused him any concern about a loss of memory for the deceased, T.259/5-45.

The plaintiffs, Melinda and Aleta, and the defendant each swore numerous affidavits in the proceedings and were each cross examined at length. One of the most difficult parts of this case was considering the relevance of the evidence these three witnesses provided. Clearly both sides were motivated to some extent by self interest. McClelland J (as his Honour then was) poignantly observed the difficulties of placing too much reliance if any on the evidence of witnesses who are motivated by self interest (Watson v Foxman (1995) NSWLR 49 at 319).

In relation to more recent times it was only Melinda and Aleta who could give evidence of the deceased’s apparent condition from time to time as the defendant, Brett, had very little contact with him and in my view cannot contribute much to the factual controversy. Further the defendant somewhat inconsistently insisted the deceased was suffering from cognitive decline over the period from 2012 (or perhaps earlier) but continued to write to his father and seek meetings with him in 2013 and 2014 in order to reach agreement with him in relation to family and financial matters.

However I do not regard Melinda and Aleta as reliable historians. They were both argumentative during the giving of their oral evidence and made their dislike of the defendant plain. I agree with the criticisms the defendant made of their evidence and which I have summarised below. What concerned me most was their apparent sanitisation of the factual material that was provided to the deceased’s treating doctors, including Dr Dedousis, and his solicitor, Mr White. I return to this issue below.

The disaffection between the siblings was clear. It was nearly impossible to separate fact from fiction as each acted merely as advocates for their own cases, although the defendant did give his evidence in a somewhat more disciplined fashion.

For these reasons I prefer to rely upon contemporaneous documentation rather than the evidence of these witnesses.

Peter Rogers, one of the deceased’s real estate agents, swore one affidavit on 25 March 2019.

He stated that over many years he managed properties on behalf of the companies owned by the deceased and dealt directly with the deceased on all issues relating to those properties ([3]-[4]).

He further stated that he always found the deceased to be more than capable “in his understanding and dealing with these matters” and the deceased always provided clear and detailed instructions ([6]).

During cross-examination Mr Rogers said he could not recall some of the detail surrounding a letter he sent to the Guardianship Tribunal dated 4 November 2014 (T.238/35-T.239/27). He confirmed he wrote it for the purpose of proceedings in the Guardianship Tribunal and said it was likely the letter would have been put to him by the deceased’s solicitor and he would have added to it in his own words (T.237/35-45, T.239/43).

Mr Rogers was taken to a series of emails and letters and agreed that he must have received instructions from Mr Colley, Mr White and Melinda at certain times in relation to various of the deceased’s properties (T.245/14-27), but he maintained he generally dealt with the deceased (T.245/35).

Clive Morris swore one affidavit on 5 November 2018. He stated that in 2013 and up to July 2014 he was instructed to sell properties for the deceased.

He stated that during all the transactions he always found the deceased to be fully aware of the transactions that were taking place and able to provide relevant instructions ([8]). He said he obtained his instructions directly from the deceased in relation to all sales ([9]).

In cross-examination, Mr Morris stated that he only accepted instructions from the deceased (T.281/14-19). He admitted he had not done a company search or asked the deceased whether he had authority to sell properties owned by a company called Barton Press (T.282/16-34). He admitted that had he known that the defendant was also a director of Barton Press, he may have had some doubt about the deceased’s ability to provide appropriate instructions (T.283/41).

Vicky Rogers swore one affidavit in these proceedings on 18 March 2019. She is a carer and cared for the deceased whilst employed by Private Care Nursing Agency (Private Care) from approximately February 2014 to March 2016. She said she was the deceased’s primary carer during that time ([3]).

Ms Rogers witnessed the deceased sign one of his wills when Mr White came to the deceased’s apartment. She said the will was not discussed in her presence ([4]-[6]).

During cross-examination Ms Rogers confirmed that Private Care received instructions about the deceased that were then passed on to her, (T426/49). She stated she had instructions to not allow the deceased out with the defendant or Janine (T.427/5). She stated that Melinda and the deceased would sometimes ask her to not let any calls through from certain people (T.428/7-26). She said that when she let calls through changed depending on how the deceased was feeling on the day (T.428/45).

She confirmed she kept nursing notes while she was caring for the deceased but stated that these notes were not available for Aleta or Melinda to review (T.431/10). She stated that, as the notes record, the deceased was sometimes confused, “mainly because he was probably worried about what was going to be happening the next day” (T.432/43-44), but she said she couldn’t recall exactly why she wrote “confused” in the notes (T.433/28).

Ms Rogers could not recall much about the Guardianship Tribunal proceedings (T.434/6-20). She stated that no one had mentioned “dementia” to her (T.435/25).

When asked about when she witnessed the will, she stated it was only her, the deceased and Mr White present (T.441/38).

Karen Crighton, family friend of the deceased, swore one affidavit on 3 November 2018. She recalled meeting with the deceased and others during October 2012 and September 2014. She stated there was no indication to her that the deceased was confused and seemed comfortable.

Valerie Bryant, family friend of the deceased, swore one affidavit on 3 November 2018. She stated she saw the deceased in September 2014 and late 2014. She stated that the deceased appeared to understand what she was saying and seemed to be enjoying himself.

Jane Savona swore two affidavits, one on 20 March 2019 and the other on 4 October 2019.

In her first affidavit Ms Savona said she met the deceased in 1967 when she started working for him as a secretary for Barton Press Publishing. She worked for him in his businesses from 1967 to 1981 and from sometime in late 1983 or early 1984 until 1999 ([1]-[5]). From approximately 2009 she worked for the deceased cleaning stairwells in his properties. On about 14 November 2013 she received a letter from Melinda informing her that her services were no longer required. She also received a letter from Aleta terminating her services approximately two months later ([8]-[9]).

She said she and her husband had dinner with the deceased almost every Monday from about the time his wife died in 2000 for approximately four or five years ([13]). They kept in regular contact after that and went on a cruise with the deceased in October 2010.

She started to notice some differences in the deceased’s behaviour and memory from about November 2012 when he moved from his house into the unit, including that he could no longer remember or did not have access to her telephone number ([17]-[23]). She recounted an occasion in or around late 2012 when she visited the deceased’s unit with Janine but they were not allowed in ([24]). She said that during a short visit during or around February 2013 Janine asked her father to sign a letter giving her permission to visit him ([25]).

Ms Savona’s second affidavit was made in response to Melinda’s affidavit of 18 July 2019.

During cross examination she agreed that during November 2012 she had conversations with the deceased on the telephone where once she identified herself he recognised who she was and had a “normal, everyday conversation”, T.1122/1-30. She noticed he had a hearing problem. She had no direct knowledge as to why he did not have her telephone number written down, T.1123/9-12.

She agreed that she had no direct knowledge of why Janine was not allowed into the apartment, T.1125/45-47. He was acting normally when they did visit in February 2013, T.1126/4- T.1127/15.

Josephine Borg swore one affidavit on 20 March 2019. She knew the deceased for over 40 years. Her husband socialised regularly with him ([1]).

In her affidavit Ms Borg recounted an occasion in February 2015 when she tried to visit the deceased at Calvary Hospital but the staff did not allow her to see him. Her affidavit was submitted subject to relevance.

During cross examination she agreed that she did not have any direct knowledge about the nurse or manager’s view in relation to her seeing the deceased at Calvary Hospital, T.1137.

Tyrone Gooley-Carrol, Janine’s son, affirmed three affidavits on 20 March 2019, 4 October 2019 and 26 August 2020 respectively.

Mr Gooley-Carrol stated that after his mother passed away he accessed her computer and located various documents and chronologies his mother had kept. Those documents were annexed to his affidavit. He indicated which events noted in the chronologies he was present for ([2]-[8]).

He recalled occasions in and following November 2012 where he felt that the deceased did not appear to recognise him ([9]-[10]).

Mr Gooley-Carrol’s second affidavit was made in response to Melinda’s affidavit of 18 July 2019 and his third affidavit was made in response to Aleta’s affidavit of 17 August 2020.

During cross examination Mr Gooley-Carrol agreed he noticed the use of third person in the documents he retrieved from his mother’s computer but he did not recognise it was unusual, T.1108/14-16, T.1109/1-5. He agreed there was a difference in the formatting of some of the documents and that an entry for 1 August 2020 switched from the use of first person to third person in relation to his mother, T.1109/10-35. He said his mother switched between describing herself in the first and third person often in the same correspondence (T.110/25-35).

He denied writing the explanation of what the rhyming slang, “Get me the mungy doubt out of here”, which the documents noted the deceased said in relation to Kareena Private Hospital, meant, T.1112/1-5. He could not recall if his mother knew rhyming slang, T.1112/5-15.

In 2013 he lived in a property owned by the deceased through some company structures and he agreed he would call or visit him when the real estate agent sought a rent reduction, T.1114/10-45. He agreed the deceased understood what he was raising with him and he sorted it out, T.1115.

Chiara Jackson swore one affidavit on 20 March 2019. She said she was in a relationship with Janine’s son, Tyrone Gooley-Carroll, for several years ([1]).

Ms Jackson recounted a visit she and Janine had with the deceased on 16 June 2014 at the deceased’s unit in Cronulla on Janine’s birthday. She said that Janine asked her father whether he knew what day it was and when he did not respond she told him it was her birthday ([4]). She also stated that the deceased told Janine he was “going fast now” and that he wears nappies ([5]).

Ms Jackson also recounted conversations she overheard Janine and the deceased having on the telephone in July 2014 ([8]-[12]).

During cross examination Ms Jackson agreed that she did not know whether the deceased’s reaction to Janine’s question about it being her birthday was a normal reaction for him and she did not know the true nature of the conflict between them, T.1130/40- T.1131/1. She agreed the deceased treated her with familiarity but she did not know whether Tyrone had mentioned her before, T.1132/5-25. She could not recall whether she had seen Janine write about herself in the third person, T.1134.

Peter Hunt affirmed one affidavit on 16 July 2020. He is a chartered accountant and met the deceased approximately 30 years ago when Mr Colley engaged him on the deceased’s behalf to provide tax advice from time to time ([1]-[2]).

Mr Hunt recalled a meeting he had with the deceased and Mr Colley at the deceased’s unit on 8 November 2014 in relation to “a particularly complex tax matter” ([3]). The meeting went for approximately two hours. One of the deceased’s daughters was present but did not take part.

Mr Hunt does not recall exactly what was said but it was his opinion that the deceased responded to questions coherently and understood the nature and significance of those questions ([5]).

Michael Marney swore one affidavit on 2 October 2019. Mr Marney stated that he witnessed the execution of the 12 November 2012 will and the 14 March 2013 will.

In cross examination he stated he only had a vague recollection of witnessing the deceased’s signature on his will (T.420/22).

Kiralee Gardiner swore one affidavit on 31 May 2019. She stated she witnessed the execution of the 12 November 2012 will, the 14 March 2013 will, the 22 May 2013 will and the 7 March 2014 will ([1]-[8]).

Ms Gardiner had no clear recollection of witnessing the deceased’s wills (T.450/43).

Matina Dunphy affirmed one affidavit on 3 December 2019. She said she is the office manager at serviced offices where Mr White held a “virtual contract”, meaning he did not hold physical office space but could use other facilities at the serviced offices such as the boardroom where he met clients ([2], [6]). Ms Dunphy also acted as his receptionist from some time after July 2009 until mid November 2012 ([5]).

Her desk location allowed her to generally observe everyone who entered the offices and she sat across from the boardroom ([4], [7]). Mr White often asked her to witness documents for his clients and she witnessed two wills of the deceased, those of 15 June 2012 and 4 September 2012. She could not recall if any one else was present ([9]-[13]) however she recalled that on several occasions in 2012 the deceased attended meetings with Mr White with one or both of his daughters, Aleta and/or Melinda ([14]).

She said on one occasion in 2012 one of the deceased’s daughters came to the serviced offices by herself. She was angry and said words to the effect of, “I need to talk to [Mr White] about Mr Gooley’s documents. I’m worried they’re being leaked” ([15]). She said that some time after that visit the other daughter contacted her by telephone and said words to the effect of, “You spoke to my sister a short while ago. You are not to say anything to anyone about anything to do with my father!” ([16]).

During cross examination she said she remembered that when she signed the wills she was sitting in the boardroom witnessing two people signing the papers but she could not “exactly remember”, T.1084/10-20. She did not keep notes. She said she did not work for Mr White, T.1086/8-9. She said she prepared her affidavit “together” with the solicitors from Macpherson Kelly who took notes of what she said (T.1087/5-15). Aleta’s and Melinda’s names were already in the affidavit when it was provided to her, T.1088/34-36.

During re-examination Ms Dunphy agreed that other solicitors contacted her before Macpherson Kelly and she told them about the two ladies who came to the office and were aggressive towards her but they did not call her back, T.1089/25-35. She could not remember if they were in the room when she signed the wills, T.1090/15-20.

Wendy Hanslow swore an affidavit on 21 September 2018. She stated that she witnessed the deceased sign his 1 February 2010 will.

Daniel Haydon swore an affidavit on 21 September 2018. He also stated that he witnesses the deceased sign his 1 February 2010 will.

I also acknowledge the affidavits of service of Christopher Stephen Frawley dated 30 October 2018 and Chantelle Maree Tabone dated 18 March 2019.

The plaintiffs submit that when all the evidence is considered as a whole the Court will be satisfied the deceased had testamentary capacity when he executed the will dated 18 July 2014.

They submit that factual outcome is reconcilable with their expert evidence, and that the defendant’s expert’s opinions are based on factual underpinnings that do not fit with the findings the Court should make as to the deceased’s capacities from mid 2012 to the end of 2014 (those experts having been supplied with materials and left to reach their own conclusions as to what was accurate and established as fact).

They submit that Associate Professor Brodtmann and Dr Lonie did not view the deceased’s condition as progressive but rather, illogically saw the deceased’s May 2015 condition as pre dating all the way back to mid 2012 (or even earlier) with no correlating evidence. Although somewhat inconsistently, Dr Lonie then created a “carve out” for the June 2015 will in her second report, stating she thought the deceased probably had capacity at that time. They also say that Dr Lonie’s May 2015 testing (which both Dr Lonie and Associate Professor Brodtmann rely upon) was performed to assess financial decision making capacity which is recognised as requiring more capacity than testamentary capacity (Gray v Hart [2012] NSWSC 1435 at [256]).

The plaintiffs make further criticisms of Dr Lonie and Associate Professor Brodtmann’s reports and evidence, including in relation to their respective approaches and various alleged factual misapprehensions (Plaintiffs/Cross Defendants Outline of Submissions [77]-[109]), which I have also read and taken into account. They submit there were problems with Dr Lonie’s 2015 tests, including the length of the testing, which may have impacted the reliability of the data. They submit Dr Lonie and Associate Professor Brodtmann were materially under informed as to the deceased’s capacities at different times, inadvertently selected more extreme examples from the carers’ notes, and did not consider there may have been better explanations for the deceased’s behaviours (recorded in the hospital and carers notes) than cognitive dysfunction. They further emphasise the following matters.

The plaintiffs submit that a review of the hospital notes for the deceased’s 2012 hospital admissions shows that references to the deceased’s behaviours such as “confused”, “delirium” and “aggression” were explicable to infections and reactions to antibiotics and sticking plaster, not a stroke or dementia.

The plaintiffs submit that admission and discharge documentation should be viewed as recording matters of history for the purposes of treatment and the medical management of the deceased as opposed to actual observed behaviours.

The plaintiffs submit that criticisms of Dr Dedousis, that he became emotionally involved, should not, objectively be accepted. They submit that he had no connection to the deceased before Dr Smith requested he become involved in the deceased’s management, and the defendant had referred the deceased to Dr Smith. Dr Dedousis enacted the deceased’s Power of Attorney on 21 January 2015 because of the defendant’s then condition. Those treating the deceased understood him to have had capacity prior to that date and that no neuropsychological testing was necessary prior to that time. The plaintiffs say Dr Dedousis competently managed the deceased and had the opportunity to view the deceased over time, unlike the defendant’s experts. They submit that he had seen what the hospital progress notes show and was not misled by anyone as to the deceased’s condition.

The plaintiffs further submit that there is nothing in this case that would warrant the denigration of the role of the deceased’s other treating medical practitioners and Courts have long recognised the valuable place of assessments made by treating doctors (see, e.g., Kerr v Badran [2004] NSWSC 735 at [48]-[50]; Revie v Druitt [2005] NSWSC 902 at [34]; Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; (2008) 71 NSWLR 593 at 598 [22], 603-4 [48]; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]).

The plaintiffs submit there was more to the defendant’s 2012 Guardianship Tribunal application than a wish for the deceased to rehabilitate at his home in Drummoyne for one or two months. They say other aspects on the “agenda” included neuro-psychometric testing, access to the deceased, and for the defendant to be the deceased’s guardian for those months. In response the defendant asserts this submission should be rejected in view of the express terms of the application but says that even if it is accepted it does not explain why the deceased thought the application was about finances or the defendant trying to control him.

The plaintiffs submit the fact the defendant agreed to withdraw his 2012 Guardianship Tribunal application because his solicitor, Mr Marshan, spoke to the deceased and formed the view the deceased was in control of his faculties is objective evidence of the deceased’s capacities at 13 November 2012. The plaintiffs point out that Associate Professor Brodtmann was mistaken as to what occurred at the tribunal hearing, having assumed that guardianship was granted. They further submit that, from November 2012 and over 2013 and 2014, the defendant repeatedly sought meetings with his father to discuss financial matters, which demonstrates the defendant thought the deceased had capacity to reach agreements on such matters over those periods. In response the defendant submits that Mr Marshan’s observations should not be regarded as significant given that the deceased’s dementia was unlikely to have been detectable through normal conversation, and that the defendant, who is not an expert in the cognitive field, had no real insight into the deceased’s condition at that time.

The plaintiffs submit that Tyrone’s evidence, that in 2013 he was living in a property owned by the deceased at below market rent and when the real estate agent increased the rent he approached the deceased who took control and resolved the issue, speaks to the deceased’s capacities at that time and later (it was said to have happened on other occasions as well). However the plaintiffs submit that Tyrone’s evidence concerning the documents he obtained from Janine’s computer is unreliable.

The plaintiffs submit that the medical material between the deceased’s treating practitioners concerning his cardiac condition in 2013 and 2014 shows the deceased had better control of his cardiac condition during this period and with that, the deceased’s overall condition was more stable. They point out that this was also the period when the defendant sought to reach an agreement with the deceased concerning family and financial matters.

The plaintiffs submit that Mr Hunt’s evidence concerning his observations of the deceased during his meeting with the deceased and Mr Colley on 8 November 2014 was not challenged. He thought the deceased had capacity to participate and make decisions in an ATO audit process. That meeting also overlapped with the period when the defendant sought to reach an agreement with the deceased. The plaintiffs submit that dealing with the ATO audit process did not just require old memories but new information and new matters of understanding and consideration. The plaintiffs submit that if the deceased had capacity to participate in that process he would have had testamentary capacity four months prior.

In response the defendant submits Mr Hunt’s evidence was to the effect that he could not actually remember what was discussed and in any event, to the extent that any substantive issue was discussed, the Court should infer that it must have concerned the operation of the deceased’s companies, which represents old, not new, information. Dealing with taxation issues was not novel to the deceased and the only decision that appears to have been made was to have a third party specialist deal with the ATO (who was instructed by Melinda and Aleta).

The plaintiffs submit that a review of the deceased’s handwritten notes on correspondence sent to him by others and in facsimiles sent by him shows that he commented and responded appropriately, which in the context of other evidence, provides reliable evidence as to his capacities. I return to the parties’ further submissions in relation to the handwritten notes below.

The plaintiffs submit there was some confusion in this case concerning the deceased’s care arrangements. They submit “live-in” care was put in place in 2012 because it was financially expedient (T.186/11-40, T.956/46-T.957/21) and involved carers having eight hours of sleep overnight. They submit “24-hour care”, where carers are on duty 24 hours of the day, was only put in place in 2015 after the deceased’s return from hospital.

They submit that the Private Care Notes show different carers had different approaches to what would be recorded and references to confusion and aggression are few and far between when viewed in context over the period from 2012 to 2014. They submit no behavioural type matters were recorded in the four weeks preceding the deceased’s execution of the 18 July 2014 will and that there was a considerable body of routineness in the notes in the period to late 2014 which does not speak of a man with cognitive dysfunction. In response the defendant submits the notes are the best contemporaneous evidence the Court has of the deceased’s behaviour and are replete with instances of bizarre behaviour throughout the relevant period.

The plaintiffs submit there is evidence (which the defendant disputes) to show the defendant had a falling out with the deceased, Melinda and Aleta at a Christmas event in 2004 and that the defendant and the deceased further fell out over money in about 2005 and 2006. The deceased thereafter continually wrote to the defendant about the money he said the defendant owed him. The plaintiffs submit the fall out was never remedied and the deceased altered his will accordingly.

The plaintiffs submit that while the deceased amassed a large property portfolio his long standing approach to his wealth was simple; he treated the assets of the various entities as his to do with what he liked and left Mr Colley to document things to the event possible after the event. The various structures were to facilitate tax matters.

In relation to wills other than that of 18 July 2014 the plaintiffs submit the will made on 12 November 2012, the day before the attendance at the Balmain premises of the Guardianship Tribunal, “has the hallmark of being factually unassailable”. They further submit that there was no medical adversity after that date that should be taken to have deteriorated the deceased’s capacities until the events of 2015 that led to the enactment of the Power of Attorney.

The plaintiffs submit that despite the manner in which their answers in cross examination were given there is very little of their evidence which is intrinsically discreditable; it accords with other categories of evidence.

In response to the defendant’s medical case theory, that the deceased’s cognitive impairment was not detectable during ordinary observation or conversation (see further below), which is based on Dr Lonie’s report of 13 February 2020 at [23] and [27], the plaintiffs submit that a full review of Dr Lonie’s reports shows that she does not opine such a proposition. Rather she merely considered that the type of dementia the deceased had would not be observable in ordinary conversation during the very early stages of the dementing process. They submit that Dr Lonie herself refers to a body of materials which relate to observations made by different people and conversations the deceased had with various people as part of the clinical correlation within her opinion.

The plaintiffs further submit that the deceased was doing things and making decisions (such as in relation to the ATO audit, the Motasea proceedings, and his legal representation in the 2014 tribunal application) which demonstrated his capacities in 2014, and if he could make those other decisions in 2014 then he sufficiently and satisfactorily met the legal requirements for testamentary capacity. In support of this contention the plaintiffs refer in particular to the deceased’s handwritten notations on various documents which they compiled in a bundle, “Bundle of documents with M.G. Gooley’s Handwriting Comments” (key examples of which were described in the Background Facts). They submit that, given the nature of the documents contained in the bundle, the Court ought to be slow to conclude the deceased was “in his room shuffling or pushing papers, writing things just for his own thoughts” (T.1297.24-27).

I should note that a dispute arose between the parties in relation to the provenance of these documents which led to further submissions being filed by the parties after the conclusion of the hearing. The defendant submits that their provenance is unclear, and in particular that it is unclear whether the handwritten notes on various documents were ever sent to their intended recipients. He submits that unless there is clear evidence to the contrary (such as a fax header) the Court ought to accept the notes were not sent and the deceased was in fact in his room shuffling or pushing papers and writing things just to reflect his own disordered thoughts.

In response the plaintiffs submit there is no direct evidence as to how the particular fax machines owned by the different witnesses operated, and therefore the presence or absence of some sort of transition record on the received counterpart document does not form a sound basis for the Court to conclude the documents were not sent. They further submit there is little forensic consequence if the Court is minded to think one or more of the documents were not sent; those documents would have a character similar to notations and commentary recorded in a diary or notebook, which may still speak to the deceased’s capacities.

In response to the defendant’s factual case theory on suspicious circumstances, that from mid 2012 the deceased was being manipulated by Melinda and Aleta in relation to his testamentary intentions and other transactions (see below), the plaintiffs submit that the defendant has not pointed to any direct evidence of such manipulation or establishing that Melinda or Aleta were involved in the preparation of any of the deceased’s wills. They further submit that such an inference depends on the defendant’s medical case, that the deceased had the cognitive dysfunction evident in May 2015 before that time, which meant he was readily amenable to manipulation, but that the medical case does not fit the facts of the case. They submit that the defendant’s subjective personal suspicions are not the type of objective factual circumstance that gives rise to the operation of the suspicious circumstances principle (citing Estate Beeby, Re: Beeby v Eggers [2015] NSWSC 1466; Re Estate Stojic [2017] NSWSC 168). Nor is the mere fact that the deceased’s final will differed from a long held succession plan. However they also submit that even if suspicious circumstances are found, presumption applying or not, the evidence establishes the deceased had capacity at the time of the last will.

The plaintiffs submit the reality is that the deceased had capacity to make decisions through to and after the last will in July 2014, and the deceased changed the allocation of his testamentary bounty in reaction to the deteriorated relationship with Dr Gooley, and Janine, and how that continued to deteriorate in line with the objectively controversial two tribunal applications, the Motasea proceedings, Preliminary Discovery proceedings and disputes between Dr Gooley and the deceased, which included Dr Gooley claiming through his lawyer payment of the sum of $860,000 in 2014 and for the deceased to resign as director of Breda. They submit the defendant’s interpretation of the evidence contains errors.

The defendant submits the deceased lacked testamentary capacity at all material times after 1 February 2010, or alternatively 15 June 2012. He submits the deceased clearly had dementia when he died on 23 December 2017; that the expert medical evidence and contemporaneous hospital and carer notes indicate he was significantly cognitively impaired from at least mid 2012 onwards; and that the evidence indicates the deceased’s impairments, caused by long standing vascular dementia (which affects executive function before memory) and a major right hemisphere stroke, which could not be detected through ordinary conversation but were nonetheless found to be severe when adequately tested, had a highly adverse and material impact upon the critical mental processes required for the process of will making (such as working memory, social cognition and the ability to freely retrieve past information).

The defendant submits however that if the Court finds the deceased retained testamentary capacity for later wills it ought to conclude that he did not have the requisite degree of knowledge and approval of the later wills so as to be able to conclude they are valid and binding. In particular he submits that at all times from about mid 2012 Aleta and Melinda controlled who had access to the deceased and were present when most of the wills after the June 2012 will were signed, and that it ought to be inferred they pressured their father as to the content of those wills. Aleta sought to have medical records and the deceased’s death certificate altered.

Further suspicious circumstances said to have attended the making of the 4 September 2012 will include that:

And in relation to the 12 November 2012 will, that:

In relation to the 14 March 2013 will:

In relation to the 22 May 2013 will:

In relation to the 7 March 2014 will, that:

And finally in relation to the 18 July 2014 will, that:

The defendant submits the plaintiffs have not allayed each of these suspicious circumstances. He also submits that there is no evidence the wills were read aloud to the deceased and explained, or that his solicitor asked open questions to ascertain his knowledge and understanding (Coates v Wattson; Estate of Sullivan [2013] NSWSC 604 at [18]; Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [306]; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [98]).

On the other hand the defendant submits that the 1 February 2010 will is rational on its face and was duly executed. He submits that the plaintiffs do not seek to displace either the presumption of testamentary capacity or the presumption of knowledge and approval and there is no evidence suggesting that either assumption ought to be displaced.

The defendant further submits that the 15 June 2012 will is rational on its face and was duly executed. However he says there is some doubt arising from the medical evidence about whether the deceased retained testamentary capacity on that date. He submits that it is open to the Court to find the June 2012 will was the deceased’s last valid will but given the evidence about Aleta and Melinda’s involvement, or “insert[ion] of themselves into”, their father’s affairs, and Associate Professor Brodtmann’s opinion, it is more probable than not that the deceased lacked capacity when he executed that will. He submits (in relation to this and other, later wills) that the lay evidence does not assist, particularly given that the deceased’s ability to converse, express a preference or read and write does not speak to the type of dementia he had. He also submits Dr Lonie’s opinion that the deceased probably retained adequate working memory capacity to make a will on that date was based on the “questionable assumption” that the content of correspondence from the deceased to Mr White from April to June 2012 was generated by the deceased alone (without the interference of Melinda or Aleta). The defendant’s further criticisms of Melinda, Aleta, Dr Barrett, Dr Dedousis, Mr Colley, Mr White, Ms Kennedy and Professor Watson’s evidence are summarised below.

The defendant provided extensive submissions concerning the credit of the main witnesses in the proceedings and in relation to the expert evidence. I summarise the key points below.

The defendant submits Mr White’s evidence is of no value because his “usual practice” was deficient and he did not turn his mind to the deceased’s cognitive ability but instead blindly followed the deceased’s (apparently invariably written) instructions (which were unlikely to reveal his type of dementia); he had no actual recollection of the wills being signed; his evidence was generally unreliable and his credit is in serious doubt given the conduct that saw him suspended from practice; he acted in a careless and partisan way towards Melinda and Aleta to whom he also provided legal services; and he said he relied on Dr Dedousis’s assessment of the deceased’s capacity.

The defendant submits that Mr Colley was defensive of the deceased and was clearly partisan towards Melinda and Aleta, for whom he also performed work, and from whom he received instructions and documents with respect to the deceased’s companies and bank accounts (rather than from the deceased himself). He is also not a person qualified to assess cognition and his opinions on that issue should be given little weight. Further the defendant submits Mr Colley’s ability to opine on the deceased’s testamentary capacity must be judged in light of the fact he did not consider there to be any issue with the deceased’s capacity on 19 September 2012 when Dr Dedousis conceded the deceased did not have the cognitive capacity to make any decisions relating to his succession plan (T.354/29-T.356/39). However the defendant submits Mr Colley’s evidence about his dealings with the deceased in March 2014 is useful to the extent that the deceased’s handwritten comments on the documents exhibited to Mr Colley’s affidavit are non sensical.

The defendant submits Mr Roger’s evidence as to the deceased’s capacity was not directed to any particular point in time. His evidence was that the letter he sent to the Guardianship Tribunal in November 2014 was drafted by Mr White and may have been discussed with Melinda and Aleta. It likely overstated the deceased’s capacities at the time. Further he initially gave evidence that he always dealt with the deceased alone but this was shown to be false in cross examination.

The defendant points out that Dr Barrett had no special training in the field of cognitive medicine. He also points out Dr Barrett’s evidence that Aleta always accompanied the deceased to appointments and acted as his mouthpiece (Dr Barrett’s affidavit, 25 June 2019, [10]). He submits Aleta controlled the flow of information to Dr Barrett, which prevented him properly assessing the deceased’s mental acuity and means his opinion concerning the deceased’s capacity should be given little weight. The defendant further submits little value should be placed on Dr Barrett’s assessments of the deceased because he relied only upon the deceased’s MMSE scores and whether he remembered things he had done before, which are not capable of measuring declining executive function, as well as Dr Dedousis’s evaluation of the deceased cognitive capacity.

The defendant also submits that Dr Dedousis is a geriatrician, not a neurologist, and had no additional training in the cognitive field. The defendant submits his clinical practice in relation to cognitive testing was grossly deficient (relying solely on MMSE testing and conversation which does not assess executive function, often in the presence of Melinda and Aleta, and sometimes leaving out questions on the MMSE he knew the deceased could not answer and failing to record results). The defendant also submits Dr Dedousis’s approach to obtaining information about his patient’s circumstances was one sided and blindly accepting of information he was supplied with by Melinda and Aleta. Information Melinda and Aleta withheld from Dr Dedousis included that the deceased had live in care from November 2012, that the reference to “Drummoyne” in the defendant’s first Guardianship Tribunal was not a reference to a nursing home, and various behavioural issues noted in the Private Care Notes. Accordingly the defendant submits Dr Dedousis’s contemporaneous statements and opinions as to the deceased’s cognition are of no value.

The defendant criticises the manner in which Melinda and Aleta gave evidence, stating that they were both argumentative and on occasion refused to answer questions. He submits their statements were self interested (they both standing to benefit under a will that benefits them to the detriment of all of the other beneficiaries) and replete with inconsistencies concerning for example whether the deceased had a stroke, whether he had dementia, when he started receiving full time care, and the terms on which care was provided. He submits Melinda was careful to give evidence she felt supported her case and as a result frequently gave out evidence that was fanciful, false or inconsistent with contemporaneous documentation. He submits Aleta’s answers were evasive and coy, non responsive, and irrational in the face of contemporaneous documentary evidence to the opposite effect. Examples are set out at [81]-[114] of the defendant’s closing submissions.

In contrast the defendant submits his own evidence was given directly, concisely and without volunteering extraneous information, and while he has an interest in the proceedings, he gave answers adverse to his own evidence. He submits his evidence should therefore be accepted.

The defendant also submits Tyrone gave his evidence in a clear, respectful and direct way. In relation to the suggestion that he had authored the documents he said he found on his mother’s computer, the defendant submits it is not surprising Tyrone knew the meaning of the rhyming slang, the translation being set out in the document, and that document was consistent with other contemporaneous documents. However in relation to Tyrone’s evidence concerning the deceased “solving a problem” concerning rental increases, the defendant submits the real estate agency would not have increased the rent without instructions to do so. Therefore the deceased either forgot he gave the instruction or somebody else must have given it. Further the problem recurred which suggests the deceased was not able to fix it.

The defendant points out Dr Lonie is the only qualified professional to have undertaken a detailed cognitive assessment of the deceased during his lifetime.

In response to the plaintiffs’ criticisms of Dr Lonie and Associate Professor Brodtmann’s evidence, the defendant submits that their briefing with a full suite of material and without instructions to make assumptions is a strength of their evidence. He rejects the plaintiffs’ submission that they were not directed to important matters referred to in the hospital notes and other material because they were supplied with all of the material but did not consider the matters referred to by the plaintiffs significant in the overall context of the deceased’s cognitive decline. He submits that the criticisms of Dr Lonie’s May 2015 testing were ultimately abandoned by the plaintiffs’ experts.

The defendant submits that Dr Lonie’s retrospective extrapolation was supported by scientific peer-reviewed literature based on a longitudinal study, but she did not blindly apply its findings. Rather she searched in the contemporaneous material available for evidence that was consistent or inconsistent with that research which led her to conclude, despite the research, that the deceased probably retained capacity in June 2012.

The defendant submits that Associate Professor Brodtmann, to test her conclusions that the July-August 2012 stroke permanently destroyed the centres in the deceased’s brain responsible for the particular executive and social functions required for will making, looked for evidence of improvement in the contemporaneous material, but found only evidence of deterioration.

He submits that it is entirely wrong to say that Dr Lonie and Professor Brodtmann did not contemplate a progressive deterioration of the deceased’s capacities as they both gave evidence that dementia is a progressive illness but that the stroke event in July-August 2012 was a major precipitant for a stepwise decline followed by continuing progressive deterioration until the deceased’s death.

The defendant also submits that it is significant that none of Dr Lonie’s or Associate Professor Brodtmann’s principal conclusions or reasoning processes were challenged in cross examination.

The defendant submits that unlike Associate Professor Brodtmann, Professor Watson is not a stroke or cognitive neurologist, and unlike Dr Lonie, he never met or examined the deceased. He also submits that Professor Watson’s opinions are of limited assistance because he was provided only a limited suite of material and therefore misapprehended important facts. For example he was provided and relied heavily upon the affidavits of Mr Colley, Mr White, Mr Rogers, Dr Dedousis and Dr Barrett but was not given their transcripts of oral evidence; he did not see the MRI brain scans or all of the CT scans; he was not provided with all the contemporaneous Private Care Notes; he was not briefed with the full content of Mr Colley’s files; and he was asked to assume, incorrectly that the deceased was right handed (which was relevant to his conclusion that the deceased’s stroke affected his non dominant hemisphere). The defendant submits Professor Watson misapplied his expertise in his field of knowledge (Drivas v Jakopavic [2019] NSWCA 218 at [65]).

The defendant further submits that Professor Watson’s reasoning process was flawed as a result of his reliance upon correspondence which Mr Colley, Mr White and Mr Rogers sent to the deceased (without evidence of how the deceased reacted to that correspondence) and the evidence and/or documents generated by Dr Dedousis and Dr Barrett (who have been criticised above), Dr Smith (who did not give evidence and had no relevant expertise) and Dr O’Shea (who was the deceased’s dentist). He did not consider the random way in which the deceased included his grandchildren in his will or that his ability to handwrite notes or annotate previous wills may not have been a reliable indicator of his testamentary capacity, given the type of dementia he had and the possibility that the notes were not created by the deceased alone.

The defendant further criticises Professor Watson’s opinion as being general and because he did not grapple with the type of dementia the deceased had and how it affected his executive function.

The defendant submits Ms Kennedy is a neuropsychologist with just 10 percent of her client base being patients with cerebrovascular disease. She considered a person retains testamentary capacity if their results from neuropsychological testing fall within the “borderline impaired range”, being the bottom 5 percent of people in any given age bracket, but not if their results fall within the “impaired” range, being the bottom 2 percent of people in any given age bracket. The defendant submits her logic is flawed because it does not follow from the test in Banks v Goodfellow; it does not account for the fact the results are categorised by age range; and in concluding the deceased was not in the “impaired” range she aggregated all the test results from the May 2015 assessment that related to memory, failing to take into account the type of dementia the deceased had.

The defendant submits that Ms Kennedy’s concessions given in cross examination, that working memory is important for making a will and the deceased’s working memory was in the impaired range (T.1188/29-T.1189.32, T.1192.5-49), and that the changes in his cognitive capacity must have occurred over many years (T.1197.25-T.1198/17), is important given the type of dementia he had. He submits her criticism of Dr Lonie’s extrapolation of the May 2015 results was misplaced given she was not aware of the study Dr Lonie based her opinion on.

The defendant submits that, as with Professor Watson, the brief provided to Ms Kennedy was incomplete such that her opinion was based on an incomplete factual matrix and is therefore of little assistance. For example she was not provided with the transcripts of oral evidence of Mr Colley, Mr White, Dr Barrett and Dr Dedousis and was provided a very limited set of private care notes.

During closing submissions both sides referred to a note the deceased wrote for Mr White. The note was dated “3-2-13” and gave instructions in relation to the making of a will. It attached a copy of a will with handwritten annotations. The plaintiffs submit the note became the deceased’s March 2014 will and shows the deceased had capacity at the time (T.1297/5-15).

However the defendant points out that Mr White said he received the document in 2014, not 2013 (T.113/45; Affidavit of Gary White, 2 November 2018 at [45]), and a transmission note made by a fax machine indicates the document was received on 3 February 2014 (CB.560). The defendant further points out that the note simply states what was in the deceased’s existing will, and that the attached will was that which the deceased executed on 22 May 2013 (as shown by the date on the signature page, T.1287/46-T.1288/22). The defendant submits the deceased was doing nothing other than faxing Mr White his thoughts about what should be put in a will that already existed. He further submits that many of other handwritten notes relied upon by the plaintiffs as evidencing the deceased’s capacity in fact suggest the opposite.

The plaintiffs propound the will of the deceased made on 18 July 2014, or alternatively, the latest in time of any of the wills made by the deceased on 4 September 2012, 12 November 2012, 14 March 2013, 22 May 2013, or 7 March 2014. The defendant propounds the deceased’s 1 February 2010 will, or alternatively, his 15 June 2012 will.

The question is which of those wills is the last will the deceased made as a free and capable testator (Tobin v Ezekiel at [44]).

It seems that each will was duly executed. No argument was raised to the contrary. Each will appears rational on its face when viewed in isolation, allocating the deceased’s property to various of his children and grandchildren, but one would expect them to be so, each having been drafted by a solicitor.

However there is considerable doubt that the deceased would have had testamentary capacity to make any will after he had his stroke sometime in the period between July and September 2012, and some doubt that the deceased would have had testamentary capacity to make his 15 June 2012 will arising from the evidence concerning the nature and progression of his dementia and his other illnesses. Accordingly in my view the presumption that the deceased had testamentary capacity is displaced with respect to his 15 June 2012, 4 September 2012, 12 November 2012, 14 March 2013, 22 May 2013, 7 March 2014, and 14 July 2014 wills, and it is necessary to have regard to the whole of the evidence to determine when the deceased was last of “sound and disposing mind” (Tobin v Ezekiel at [45]).

Each of the experts agreed that there was insufficient evidence to express an opinion about the deceased’s testamentary capacity at 1 February 2010 and in my view there is no evidence that would displace the presumption of testamentary capacity with respect to that will, except some speculation only by Dr Lonie and Associate Professor Brodtmann that the deceased may have been experiencing some cognitive impairment prior to 2012, and possibly as early as 2010, which in my view is insufficient. Associate Professor Brodtmann said (in her 4 October 2019 Report, CB.3008):

She later concluded (CB.3022):

Dr Lonie said (T.1241/45-50):

I note that neither party sought to displace that presumption with respect to the deceased’s 1 February 2010 will.

The plaintiffs’ expert, Professor Watson, relying heavily on the evidence of Mr Colley, Mr White and Mr Rogers, opined that the deceased retained testamentary capacity when he executed each of his wills, except for that of 4 September 2012. Professor Watson and Associate Professor Brodtmann agreed that the deceased likely lacked testamentary capacity at that date “due to a combination of vascular cognitive impairment and ill-health, after the likely time of his stroke and a lengthy period of delirium” (27 August 2020 Conclave). Ms Kennedy’s report consisted of a critique of Dr Lonie’s testing however she also expressed the view that there was “insufficient evidence to refute testamentary capacity at 8 July 2014” (CB.5454).

The first of the defendant’s experts, Dr Lonie, was of the view that the deceased likely understood the nature and effect of will making, the significance of his estate and who his primary beneficiaries were, but that the damage to his brain caused by a combination of vascular dementia and stroke rendered him incapable of weighing the claims of his respective beneficiaries (see Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6]) and, to use the terminology of Banks v Goodfellow, served to “poison” his affections toward certain family members, in particular the defendant, from at least the 4 September 2012 will onwards (T.1239/45-50; CB.2772-2773 CB.2780-2781). However, her opinion in relation to the 15 June 2012 will, based on the content of correspondence between the deceased and Mr White from April to June 2012, was that he probably retained working memory capacity to bring to mind and consider his estate as a whole in weighing up the claims of his beneficiaries at that date.

The second of the defendant’s experts, Associate Professor Brodtmann, stated unequivocally that the deceased lacked testamentary capacity permanently from the time of his stroke until his death. She thought the stroke occurred sometime between July and September 2012 but that the CT scan of 12 September 2012 disclosed a stroke that looked to be weeks not days old (that is, it most likely occurred prior to the making of the 4 September 2012 will). She was of the view that the stroke destroyed parts of the deceased’s brain essential to executive functioning, such that his capacity for abstract thinking was destroyed completely, such that he was unable to weigh up the relative strengths and weaknesses of the claims of his potential beneficiaries. She also considered that a combination of extensive white matter disease (or small vessel disease: CB.2998), decades of silently accumulating small brain infarcts, poor hearing and eyesight, variations in blood pressure and heart rate issues and episodes of unresponsiveness would have contributed to the deceased’s cognitive decline. There was no evidence in her view of any recovery but rather evidence of cognitive disability that progressed to vascular dementia. She also thought it unlikely that the deceased had testamentary capacity when he made the 15 June 2012 will, “given the progression of his medical illnesses, and the fact that his health was declining at such a rate that in a few months’ time he required full-time assistance with his activities of daily living” (CB.3008). She also noted that he was suffering from a severe facial infection and developed a delirium around this time (CB.3008).

In my view the evidence of the defendant’s experts, which I prefer, establishes that it was likely the deceased did not have testamentary capacity to make the 4 September 2012 will or any will thereafter by reason of the major stroke he suffered between July and September 2012 and the vascular dementia he was suffering.

What emerged clearly from their evidence, and which I accept, is that it is executive function that impacts a person’s ability to consider their bounty and make decisions rationally about how their estate should be distributed between potential beneficiaries. As Associate Professor Brodtmann explained, executive function underlies cognitive processes such as reasoning; abstraction; comportment, including judgement, insight, self awareness, social adaptation and social appropriateness (sometimes referred to as social cognition); mental flexibility; set shifting (changing from one task to another); hypothesis testing; and planning and sequencing (CB. 2996).

The effects of the stroke were profound, and I accept Associate Professor Brodtmann’s description of the consequences for the deceased’s executive function. She was, out of all the experts in my view uniquely qualified, being a dual trained stroke and cognitive neurologist. I have come to the view that I should accept her evidence unequivocally. I also accept that such defects may not be noticed by the inastute or unskilled, and especially those who rely upon MMSE scores alone. More sophisticated tests, such as the MoCA, are likely to be required (CB.2997-2998).

In theory of course courts are not bound by the testimony of witnesses, lay or for that matter expert, even if there has been no cross examination. It goes without saying that testamentary capacity is a matter of fact and degree, but medical science has moved on exponentially since Banks v Goodfellow. The availability of sophisticated technology together with a high level of expertise makes the search for a “connection” between any cognitive impairment and a disposition a good deal easier to identify. This is an area no longer in need of judicial notice but rather that of expert evidence paying due deference to relevant facts. In a case such as this, especially given the way it was conducted, the medical evidence in particular called by the defendant is to be given very considerable weight.

In contrast to the experts called by the plaintiffs the defendant’s experts had advantage of the availability of a greater amount of material. Professor Watson did not have the transcript of the cross examination of Mr White, Mr Colley, Dr Barrett or Dr Dedousis, upon whom he relied heavily. In other words he did not have the benefit of reviewing and considering their various qualifications and concessions. This in my view and to my observation placed him at a significant disadvantage.

As is obvious he relied heavily upon their accounts in chief of what he no doubt took in the case of Mr White and Mr Colley as “business as usual” and very much his own summaries of the evidence and what he perceived as pertinent and relevant. It is fair to say that when confronted with the documents underlying Mr White’s affidavits, not having carefully considered them before, he understandably but unpersuasively attempted to avoid answering some of the questions and was in my view reluctant to make appropriate concessions (e.g. TT.1153-1156). He also did not have for example all the carers’ notes which were of some relevance as to the deceased’s confusion and forgetfulness in particular (TT.1160-1162). I did not find his attempt to reject or dismiss the importance of that material convincing (T.1170).

The failure to cross examine the medical experts for the defendant is in my view a real problem for the plaintiffs’ case. Judges in the common law system are umpires not investigators. It is no part of the function of a trial judge to make or explore a case not sought to be made by one of the parties. They are not of course obliged to accept evidence even that which has not been the subject of cross examination. But the failure to cross examine at all where matters are seriously in issue usually should have consequences, especially where the decision is to be seen as a deliberate forensic choice.

The failure to cross examine in effect either Associate Professor Brodtmann and/or Dr Lonie is of some considerable consequence here. Forensic risk taking aside both experts were, as I have otherwise commented, highly qualified to express the views they did. They both thought that the deceased did not have testamentary capacity from at least mid 2012 due to the damage caused by the stroke and the deceased’s dementia. Both did numerous reports and were given a vast amount of relevant material. They explained their opinions in some detail not only in their reports but in their detailed dissertations in chief which I invited each expert to give if they so chose. They gave thoughtful and comprehensive analyses of the situation by reference to comprehensive materials and supported each of their opinions in a highly persuasive and plausible fashion. In my view, in the face of that evidence, the lack of cross examination should be regarded by the court as an acceptance by the plaintiffs of those opinions. That is so notwithstanding the calling of opposing opinions, which were of course tested, and the criticisms the plaintiffs made against them in closing submissions, which by that stage could not be adequately ventilated with the experts themselves in order to test the foundations of their opinions.

Cross examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side’s evidence in order to persuade the court to accept or reject evidence. By adoption of this convention the court has the full opportunity to evaluate the opposing cases. Failure to cross examine will generally as I have said have consequences especially where, as here the evidence is expert, plausible and comprehensively explained.

If evidence is glaringly improbable or absurd it may be no cross examination will be necessary or if, as discussed in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1, the contest is plain and obvious. I dare say I may have had questions if an attempt to challenge either witness was attempted but, as I have said, the case must be made by the party not the court.

Absent some exceptionable circumstance, which is absent here, in my view, as I am otherwise satisfied with the reports and the evidence of Professor Brodtmann and Dr Lonie, the failure to challenge them is in my view highly relevant in assessing whether the court should accept their evidence.

Counsel for the plaintiffs did make the comment that the defendant’s experts were not given the usual set of comprehensive assumptions. I agree. It is not generally appropriate to give an expert materials and ask them either to assume it is all true or worse to in effect make their own findings of fact and then express opinions based on in effect their findings. That approach which both sides adopted to some extent here is not to be encouraged. The lawyers should identify the relevant factual material and then ask the expert to assume certain facts which they have carefully constructed to support the case sought to be made. That ensures the expert is directed to what the party considers relevant. Then it is for the court to make the relevant findings or not. On the other hand inviting an expert to be a sleuth may well have the effect of making a case that is not pleaded or worse cause considerable confusion about what they are truly relying upon. In an extreme case it may be an expert draws impermissible inferences or relies on irrelevant or inadmissible material.

This problem is highlighted somewhat dramatically by the approach of Professor Watson who, despite being given some assumptions by the plaintiffs, it appears spent a huge amount of time preparing his own summaries of the evidence which must have been time consuming and may well have distracted him from addressing relevant materials before he expressed his views.

In the end he focused very much on an unqualified acceptance of the various plaintiffs’ witnesses in chief and was not by his own side asked to consider the concessions made, or for example the carer’s notes, although he was asked to do so in an effective cross examination which exposed the deficiency caused by the myopic approach the plaintiffs adopted in relation to his evidence.

I am satisfied in all the circumstances that I should accept the evidence of Professor Brodtmann and Dr Lonie on testamentary capacity with respect to the wills made between September 2012 and July 2014, namely that a combination of the deceased’s dementia and other illnesses, and particularly his stroke, had destroyed the deceased’s testamentary capacity by this time. And contrary to what the plaintiffs sought to argue there is it seems an abundance of material supporting that conclusion.

Many features of the deceased’s behaviour which were referred to in the Background Facts, and pointed to by Professor Brodtmann and Dr Lonie, indicate or support a conclusion of executive function impairment from mid 2012. Examples include the numerous references to confusion, anger, paranoia, lack of empathy and forgetfulness recorded in the carers’ and hospital notes from July 2012 up to and following Dr Lonie’s May 2015 testing.

I do not accept the plaintiffs’ submission that references to behaviours such as confusion and aggression are few and far between. A review of the chronology in the Background Facts shows that is not the case. However they are correct in pointing out that no behavioural type matters appear to have been recorded in the four weeks preceding the deceased’s making of the 18 July 2014 will, and that the references to “confusion” and “delirium” in the hospital notes of 2012 could be explained by infections and adverse reactions to antibiotics and/or sticking plaster or the deceased’s recent stroke.

However the carers’ notes certainly record somewhat regular instances of bizarre behaviour that indicates a pattern of functional impairment. For example on 18 December 2012 the deceased forgot how to drive, being unable to change gears from “P” to “R” (recorded above at [222]). On 24 December 2012, Christmas Eve, he was up doing office work at 5:25am and could not understand why no one was picking up their phones or responding to messages (at [228]). On 20 February 2013 he stood in the middle of the road while a car waited, attempting to turn, and he ordered the carer, who was already on the curb, to get off the road (at [256]). On 28 February 2013 he got up and dressed for breakfast at 12:20am (at [264]). On 1 April 2013 he woke up at 1:50am because he thought someone was knocking on the door trying to give him a puzzle (at [290]). On 13 May 2013 at 8:30pm the deceased woke up from a nap and yelled into the telephone for 10 minutes with no one on the other end (at [310]). He misplaced things, such as the blood pressure machine on 20 March 2013 (at [285]), a cheque on 28 July 2013 (at [332]), his keys on 29 July 2013 (at [333]). On 3 March 2014 he went to the wrong bank, St George, not realising he had closed his St George bank accounts and the cheque he had was for NAB (at [382]). On 15 July 2015 he pulled his trousers down when the physiotherapist came to visit, saying he wanted to wipe himself (at [588]). Associate Professor Brodtmann was of the view that these behaviours were indicators of severe functional impairment.

The plaintiffs sought to argue that there may have been better explanations for the deceased’s behaviours than cognitive dysfunction. I have already noted my agreement that the behaviours observed during the course of the deceased’s 2012 hospital admissions may have been caused by other factors at least partly. Yet when other incidents, including those I have just listed, are viewed in context of the expert evidence I am not satisfied that is otherwise the case. Associate Professor Brodtmann considered that the observations recorded in the carers’ notes provided evidence of gradual deterioration in the deceased’s function in association with episodes of sudden worsening of his cognitive function, usually in the context of intercurrent illness. Yet she was of the view that was consistent with someone with vascular cognitive impairment developing vascular dementia (Associate Professor Brodtmann’s Executive Summary, p 4).

The results of Dr Lonie’s May 2015 tests seem to support Associate Professor Brodtmann’s conclusions. Dr Lonie was criticised for extrapolating back from May 2015 to mid 2012. However that approach was supported by longitudinal research into the nature and course of cognitive decline in cerebral small vessel disease. She was criticised due to the length of her testing and because she was testing for financial management not testamentary capacity but Associate Professor Brodtmann “found little to dispute with Dr Lonie’s report, except that I feel she erred on the conservative side when describing the severity of his impairments” (CB.3014). I found her dissertation at the commencement of her evidence particularly persuasive and I accept her evidence on this.

The plaintiffs also submitted that there is a wealth of evidence explaining the deteriorated relationship between the defendant and the deceased, and the change in the allocation of the deceased’s testamentary bounty, other than the deceased’s supposed cognitive condition. They pointed in particular to the fact that the deceased and defendant fell out over money in 2005 or 2006, the two Guardianship Tribunal Proceedings and other legal proceedings. However there is evidence that the deceased and defendant maintained a somewhat harmonious relationship in 2011 (for example see their 2011 correspondence set out in the Background Facts). And while many people are likely to be distressed or angry about their children commencing guardianship or any kind of proceedings against them, it is also the case that right hemisphere strokes and functional impairment can lead to problems with judgment and insight. As Dr Lonie pointed out the deceased’s “impaired memory and executive function, lack of insight into his cognitive and associated functional impairments, limited understanding of the context in which he found himself and the actions taken by his son” may have contributed to his negative appraisal of the defendant (CB.2770; CB.2999-3000). It should also be noted that Melinda and Aleta did not correct the deceased’s misunderstanding of the nature of the defendant’s 2012 Guardianship Tribunal application. I regard the evidence concerning the deteriorated relationship between the defendant and the deceased as somewhat inconclusive.

The deceased had several episodes of syncope or non responsiveness that lead to hospital admissions on 7 March 2013 (recorded above at [267]-[268]), 19 April 2013 (at [299]) and 16 April 2014 (at [402]-[403]). Associate Professor Brodtmann thought he may have had further strokes, at least during the March 2013 admission (CB.3004).

In my view one of the most significant indicators of the deceased’s cognitive impairment is the note he sent to Mr White on 3 February 2014. I agree with the defendant’s characterisation of that note over that of the plaintiffs. The deceased was it seems instructing Mr White to write him a new will in the same terms as his previous one. That does not speak of a man capable of making rational decisions about his bounty. And I am not convinced the deceased’s other handwritten notes which the plaintiffs’ relied upon necessarily indicate any greater capacity. Some are cogent; some, such as that of 1 August 2014, are in my view less so. The deceased had a practice of making notes and faxing them to his advisors and family members over his lifetime, which he continued up to 2015, whether out of habit or otherwise. As the defendant pointed out, it is unclear whether all the notes were sent, and some could be considered somewhat divorced from reality (TT.1291-1292). Again I regard these handwritten notes as somewhat inconclusive.

The fact the deceased’s deficiencies were not picked up by his legal, accounting or medical advisors does not in my view assist the plaintiffs’ case very much. I regard Mr White and Mr Colley as somewhat unimpressive. Mr White was clearly not attuned or interested in making sure his client truly understood what he was doing. He had very little real recollection of events and I am uncertain as to whether he was being untruthful. He was in my view clearly favourable towards the plaintiffs who he also acted for and who failed to tell him that the deceased was on day leave from hospital when he made his 4 September 2012 will or later that he had had a stroke. He appeared to rely heavily upon Dr Dedousis’s assessment of the deceased’s condition. Mr Colley also acted for the plaintiffs and was it seems unaware of the deceased’s true condition. Mr White and Mr Colley did not, let alone I am satisfied dare, to test, in the deceased’s own interest as it were, his understanding of what he was doing in making his multiple post 2012 wills. One would think the deceased’s frenzy of will making over the period June 2012-July 2014 would have raised questions in their minds about his capacity or at least rationality at the time.

The deceased’s deficiencies were not picked up by either Dr Barrett or Dr Dedousis perhaps by reason of a lack of expertise but certainly by inadequate testing with the use of the MMSE alone. Even the deceased’s clock drawing attempts did not appear to raise alarm. On 26 September 2012 the deceased inserted the words “20 to” in the place of the minute hand. On 28 August 2012 he drew some numbers inside the clockface and some numbers outside the clockface. During Dr Lonie’s May 2015 testing he drew the numbers 1-16 inside the clockface and wrote “20” and “4” outside the clockface. Although by that stage Dr Dedousis had recommended (in January 2015) that the Power of Attorney be invoked.

Dr Barrett relied heavily upon Dr Dedousis who was to some extent kept in the dark by the plaintiffs. Dr Dedousis seemed convinced the defendant had done the wrong thing in bringing the Guardianship Tribunal proceedings in 2012 but was not told about the true nature of the application at the time. He was not told that the deceased had live in carers from November 2012 and he said he was not shown the private carers’ notes. He was not aware of the deceased’s financial situation.

I am satisfied the plaintiffs attempted not through altruism but self interest to orchestrate the facts so as to obscure their father’s true condition and succeeded in cajoling Dr Dedousis to change his professional opinion on at least two occasions, in relation to the discharge summary that recorded “dementia” and the deceased’s death certificate, for their benefit. During cross examination Dr Dedousis said he changed the records because he wanted to ensure they were accurate. I reject that explanation. That he was so malleable is indicative in my view of his partisanship but also his susceptibility to inappropriate influence, both of which blurred his judgment. He admitted that he did not mention the deceased’s stroke or cognitive state to Mr White or in the letters he sent to the Guardianship Tribunal.

I accept that Mr Hunt’s evidence was largely unchallenged in cross examination, although he said that he could not recall exactly what was said during his meeting with the deceased. I note that the deceased assisted Tyrone to resolve some disputes about rent with the real estate agent in about 2013, and the plaintiffs’ submission that Mr Marshan’s impression of the deceased at the Guardianship Tribunal on 13 November 2012 was that he was in control of his faculties, although he did not give evidence in these proceedings. I also accept that the evidence of lay people as to a testator’s health condition can be valuable (Zorbas v Sidiropoulos (Estate of Kriezes) (No 2) [2009] NSWCA 197 at [90] (per Young JA, Bergin CJ in Eq agreeing).

However I am not satisfied on the whole of the evidence that the deceased was of sound and disposing mind when he made his September 2012-July 2014 wills. The factual question posed in Croft v Sanders was it seems whether the testator’s moments of testamentary incapacity were in fact continuous as opposed to merely episodic. Clearly relevant capacity need not always be present. The question is to be answered on the particular facts. Here, although his deficiencies were largely undetectable unless adequately tested, the profound nature of the stroke suffered by the deceased and its effect on such an important aspect of brain function makes it in my mind more likely that he suffered with the incapacity more or less continuously afterwards and as his dementia progressed. His stroke was a physical injury which on top of his dementia, atrial fibrillation and other illnesses caused him cognitive impairment which I am satisfied he did not travel in and out of. I am satisfied on the evidence of Associate Professor Brodtmann and Dr Lonie that after his stroke the deceased never regained cognitive functions sufficient to weigh and contrast the potential claims of his various children and grandchildren to his estate, which was complex, consisting of numerous companies and various pieces of property, and therefore lacked testamentary capacity (Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6]).

Associate Professor Brodtmann and Dr Lonie differed however in their opinions with respect to the deceased’s 15 June 2012 will which was made prior to his stroke. Associate Professor Brodtmann, who considered that the deceased lacked testamentary capacity at that time, based her opinion on the likely progression of the deceased’s other medical illnesses, including it seems the extent of the disease in his white matter which was visible on CT brain scans prior to his stroke, the delirium he was likely suffering due to his facial infection, his atrial fibrillation, and the severity of his illnesses during his admissions over the following months (Executive Summary pp 3-4; CB.3000, 3008-3009; Report from Conclave between Brodtmann and Watson).

Dr Lonie on the other hand initially concluded on the basis of her May 2015 tests and the longitudinal study that the deceased likely lacked capacity at 15 June 2012 but later changed her opinion based on the correspondence between Mr White and the deceased about the content of the will. That correspondence was put to Associate Professor Brodtmann at least it seems in the conclave she had with Professor Watson but did not cause her to alter her opinion.

I prefer and accept Associate Professor Brodtmann’s opinion given her qualifications and the explanation she provided. The correspondence between Mr White and the deceased was conducted via faxes and handwritten notes. It is of course some evidence that the deceased understood what he was doing however as I have said Mr White did not ever discuss the deceased’s wills with him nor test his capacity himself. On balance I am not satisfied the deceased had testamentary capacity when he made his 15 June 2012 will.

Given what I have said already about the deceased’s testamentary capacity it is not necessary to determine the defendant’s suspicious circumstances case. However there are circumstances from at least the time of the deceased’s 4 September 2012 will that raise doubts in my mind about whether his wills expressed his mind, unaffected by the influence of the plaintiffs (Tobin v Ezekiel at [46]). The circumstances surrounding the making of his 4 September 2012 will are particularly suspicious. The deceased was very ill in hospital at the time and his condition should have been obvious. The plaintiffs took him to Mr White’s offices where he made the will and they also signed an Enduring Power of Attorney. However, as I have said, Mr White was not made aware of his precise condition or that he was on day leave from hospital. The plaintiffs were either unaware of the extent of his illness or intended to withhold it. These circumstances clearly also relate to the deceased’s testamentary capacity, and as the plaintiffs’ pointed out the defendant’s case concerning the plaintiffs’ manipulation of the deceased depended in part on their medical case, which I have upheld.

It seems clear that by the time the defendant made his first application to the Guardianship Tribunal in September 2012 the plaintiffs and the defendant were deeply divided. I am satisfied that the plaintiffs thereafter engaged in a course of conduct that, whether intentionally or otherwise, influenced the deceased against the defendant, and in their favour, and concealed his true condition from his medical and legal advisors. They did not for example inform their father of the true nature of the defendant’s guardianship application which appears to have played on his vulnerabilities and fears about being placed in a nursing home. They did not inform Dr Dedousis or Mr White about the comments in the carers’ notes and sought to sanitise information contained in hospital records and later on the deceased’s death certificate.

I have carefully considered the submissions of both sides and would find the suspicious circumstances alleged by the defendant to have attended each of the deceased’s respective wills from September 2012-July 2014 (and which I have summarised above at [1100]-[1107]) to have existed. Of particular significance in my view is the likely presence of one or both of the plaintiffs at the signing of most of the wills; the fact Mr White said (T.79/11-18) his instructions in relation to the 12 November 2012 will came from the deceased and Mr Colley, who had previously been corresponding with Melinda about the power of appointment of the Gooley Family Trust which she was gifted under that will (see above at [104]); the fact that Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White (although she denied that was necessarily the case on occasions when he signed his wills: T.783.14-25); and, in relation to the deceased’s 2013 and 2014 wills, their increasing control over the deceased’s affairs at that time, evidenced for example by their instruction to the deceased’s carers on 10 February 2013 to ban the defendant and Janine from the deceased’s unit and Melinda’s giving instructions to Mr White, Mr Colley and Mr Rogers about Motasea despite not being a director in May 2013 (see [305] above).

When these matters are considered alongside the general trend in the deceased’s wills, which (save perhaps for the 22 May 2013 will) were changing in their favour, inconsistently with the deceased’s long held succession plan, there is in my mind a suspicious circumstances case to meet. Yet given the deficiencies in Mr White’s practice I am not satisfied it could be allayed.

For these reasons I am satisfied that the deceased lacked testamentary capacity at all relevant times after he made his 1 February 2010 will and would grant the primary relief sought by the defendant in his cross claim. I would dismiss the plaintiffs’ claim. I invite the parties to bring in short minutes reflecting these reasons and would hear them further in relation to costs if necessary.