Anderson v Yongpairojwong

[2024] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Anderson v Yongpairojwong [2024] NSWCA 220

Hearing dates:

24 June 2024

Date of orders:

12 September 2024

Decision date:

12 September 2024

Before:

Bell CJ at [1];
Leeming JA at [180];
Mitchelmore JA at [186]

Decision:

Appeal dismissed with costs.

Catchwords:

SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Succession Act 2006 (NSW) s 59

Cases Cited:

Barry v Butlin [1838] 12 ER 1089

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197

Croft v Sanders [2019] NSWCA 303

Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

J and E Vella Pty Ltd v Hobson [2023] NSWCA 234

Kerr v Badran [2004] NSWSC 735

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lim v Lim [2023] NSWCA 84

Mekhail v Hana [2019] NSWCA 197

Nicholson v Knaggs [2009] VSC 64

Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Wild v Meduri (No 2) [2023] NSWSC 669

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Category:

Principal judgment

Parties:

Palisa Anderson (Appellant)
Kijchai Yongpairojwong (First Respondent)
Kulphat Laoyont (Second Respondent)

Representation:

Counsel:

L Ellison SC with A Maroya (Appellant)
S Chapple SC with D Yazdani (Respondents)

Solicitors:

Mills Oakley (Appellant)
Swaab (Respondents)

File Number(s):

2023/445224

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1359

Date of Decision:

10 November 2023

Before:

Griffiths AJ

File Number(s):

2021/356682

HEADNOTE

[This headnote is not to be read as part of the judgment]

Amonrat Chanta (Amy) was the matriarch of a chain of restaurants operating under the “Chat Thai” brand. Amy died on 10 March 2021, and was survived by her son, Kulphat Laoyont (Pat or the Second Respondent), and daughter, Palisa Anderson (Palisa or the Appellant). Amy executed two wills: one in New South Wales in 2017 (the NSW Will), and the other in Thailand on 24 June 2020 (the Thai Will). The NSW Will provided, inter alia, that Pat and Palisa would receive a roughly even split of Amy’s shares in the companies used to operate her business (the CT Group) and also share the residue of her estate. However, the Thai Will provided that only Pat would receive shares in the CT Group and also the residue. A week after the Thai Will was executed, Amy’s brother, Kijchai Yongpairojwong (Bob or the First Respondent), transferred the CT Group shares to Pat, at Amy’s request.

The Appellant propounded the NSW Will and contended that Amy lacked testamentary capacity, and did not know and approve of the contents of the Thai Will. Griffiths AJ (the primary judge) held that Pat, who propounded the Thai Will, discharged his onus of proving that Amy had testamentary capacity when the Thai Will was executed. His Honour held that a body of evidence revealed that Amy possessed testamentary capacity at the time of making the Thai Will and knew and approved of its contents. His Honour held that the expert medical evidence did not displace these findings, and accorded it minimal weight. His Honour also held that there were no suspicious circumstances surrounding the execution of the Thai Will.

The Appellant appealed on various grounds, including that the primary judge erred by: (i) concluding that Pat discharged his onus of proving that Amy had testamentary capacity at the time of executing the Thai Will; and (ii) holding that Amy knew and approved of the contents of the Thai Will.

The Court (Bell CJ, Leeming JA and Mitchelmore JA agreeing), dismissed each challenge raised by the Appellant. Its holdings included that:

1. The Appellant failed to establish that the primary judge erred in holding that Amy had testamentary capacity when executing the Thai Will. The primary judge justifiably attributed limited weight to the expert medical reports in determining Amy’s testamentary capacity at the time of executing the Thai Will in circumstances where the experts had not examined Amy; their reports did not take into account various communications by Amy shortly after execution of the Thai Will or lay evidence bearing upon Amy’s cognition at the time that the Thai Will was executed; and Amy’s medical records did not support the conclusion that she lacked capacity: [138]-[159] (Bell CJ); [180] (Leeming JA); [186] (Mitchelmore JA).

Lim v Lim [2023] NSWCA 84, applied; Nicholson v Knaggs [2009] VSC 64; Kerr v Badran [2004] NSWSC 735; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197; Croft v Sanders [2019] NSWCA 303, considered.

2. The Appellant failed to establish that the primary judge erred in finding that Amy knew and approved of the contents of the Thai Will. The Appellant failed to show that there were “suspicious circumstances” surrounding the making of the Thai Will. In turn, the presumption that the testatrix knew and approved of the contents of the Thai Will applied, and was not successfully rebutted: [160]-[173] (Bell CJ); [180]-[185] (Leeming JA); [186] (Mitchelmore JA).

Mekhail v Hana [2019] NSWCA 197; Barry v Butlin [1838] 12 ER 1089; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, considered.

3. Where parties seek to contend that there are “suspicious circumstances” surrounding the making of a will, those circumstances should be pleaded and or particularised so that they can be appropriately addressed by evidence and submissions: [163] (Bell CJ); [184] (Leeming JA); [186] (Mitchelmore JA).

Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018, considered.

JUDGMENT

1. BELL CJ: On 10 March 2021, Amonrat Chanta (or Amy) died in Thailand. She had founded a chain of Sydney restaurants under the Chat Thai brand. Amy was survived by her son, Kulphat Laoyont (Pat or the Second Respondent), and daughter, Palisa Anderson (Palisa or the Appellant). Commonly used English names are used in this judgment, as they were in the proceedings below, without intending any disrespect.

2. Amy executed two wills in the later years of her life. The more recent will was made in Thailand on 24 June 2020 (the Thai Will) and was propounded by Pat. An earlier will (the NSW Will) had been executed in New South Wales in 2017 and was propounded by Palisa.

3. The parties agreed that, as at the date of her death, Amy was domiciled in New South Wales (although she physically died in Thailand). Her estate in New South Wales at the time of her death included:

1. a 1/3 interest in a farming property in Tyagarah NSW (Boon Luck Farm), valued at $4,500,000 total (Amy’s share being valued at $1,500,000);

2. a 12/100 interest in a property in Mosman (Mosman Property), valued between $8,000,000 to $8,500,000 total (Amy’s share being valued at $990,000);

3. $445,823.02 in cash, held in various accounts; and

4. substantial shareholdings in various companies (the CT Group) which she used as vehicles to operate her restaurant businesses, including two ordinary shares in Chat Thai Pty Ltd (Chat Thai), worth an estimated value of $1,281,000 - $1,455,000 as at May 2022.

4. Amy also held real property in Thailand.

5. A key difference between the two wills was that the Thai Will gave to Pat all of Amy’s shares in the CT Group whereas the NSW Will provided that, other than in relation to Chat Thai CBD Pty Ltd, Amy’s shareholding in the other companies in the CT Group was bequeathed to Palisa and Pat as tenants in common in equal shares. Under the NSW Will, Palisa and Pat were also given the residue of Amy’s estate as joint tenants whereas under the Thai Will, Pat received the residuary estate.

6. It should be noted that, under both wills, Amy bequeathed to Palisa her shares in the Boon Luck Farm and the Mosman Property while the real property in Thailand was left to Pat. Moreover, prior to her death, on 1 July 2020, a week after the Thai Will was executed, Amy’s brother, Kijchai Yongpairojwong (Bob or the First Respondent), under a power of attorney, executed share transfer forms transferring Amy’s interest in the various Chat Thai companies to Pat. No attempt to impugn that transfer was made in the proceedings.

7. What that practically meant was that, under the NSW Will, the residue was to be shared by Pat and Palisa whereas, under the Thai Will, the residue was to go only to Pat, noting that no reference was made to the Thai property in the NSW Will.

8. The central issue in the proceedings at first instance related to Amy’s capacity to execute the Thai Will. Orders were made by Griffiths AJ (the primary judge), sitting at first instance, granting probate of the Thai Will to Pat, and dismissing Palisa’s claim: Anderson v Yongpairojwong [2023] NSWSC 1359 (PJ or the primary judgment). The primary judge also dismissed a family provision claim made by Palisa pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act). The trial extended over some six days, resulting in an expeditiously delivered judgment exceeding 100 pages.

9. Palisa now appeals other than in respect of the family provision claim. The four grounds of appeal are as follows:

“1    The primary judge:

i.    erred in concluding that the Second Respondent (the Second Defendant at trial) had discharged his onus of proving that the testatrix had testamentary capacity as at the date of execution of the Thai Will on 24 June 2020; and

ii.    ought instead to have concluded that the Second Respondent had failed to discharge his onus of proving that the testatrix had testamentary capacity on 24 June 2020.

2    The primary judge erred in concluding that the expert medical evidence adduced by the Appellant (the Plaintiff below) was incapable of assisting him in concluding that the testatrix lacked testamentary capacity as at the date of execution of the Thai Will on 24 June 2020.

3    The primary judge:

i.    erred in holding that the testatrix knew and approved of the contents of her will;

ii.    erred in holding that there were no circumstances arousing the Court's suspicion that the Thai Will did not have the testatrix's consent; alternatively, that the Thai Will did not have her knowledge and approval.

4    The primary judge erred in declining to permit the Appellant to serve supplementary reports of Dr Dua and Professor Ogden.”

10. Ground 1 in effect amounts to a general challenge to the primary judge’s conclusions as to Amy’s testamentary capacity. As will be seen, ground 2 wrongly characterises the primary judge’s treatment of the expert evidence. Ground 3 invokes the principle that, where suspicious circumstances are established, the presumption that the testatrix knew and approved the contents of her will is rebutted, and it is for those propounding the will positively to establish knowledge and approval. The drafting of appeal ground 3 inverts the proper sequence in that the presumption must be disturbed by reason of suspicious circumstances before questions of proof of knowledge and approval arise. As will be seen, the existence of suspicious circumstances was raised at first instance in an extremely exiguous manner and was rejected by the primary judge. Ground 4 relates to a procedural decision by the primary judge not to permit additional expert evidence to be introduced in the course of the trial, a decision which Mr Ellison SC, who appeared for the Appellant on appeal, but not at the trial, conceded was open to his Honour.

11. The primary judgment necessarily involved the assessment of the evidence of numerous lay witnesses whom the primary judge had the advantage of observing in the witness box during their cross-examination. This involved his Honour assessing various disputed conversations, and necessarily making an assessment as to the credit of particular witnesses. No challenge was made to his Honour’s judgment in this regard.

12. Another advantage which a trial judge has over an appellate court in a trial of any real length is what Stern JA, echoing observations in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, has recently described as immersion in the milieu of the trial: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214].

13. A real review of a judgment of the kind under consideration which has been affected by assessments of credibility requires the establishment of “glaringly improbable” conclusions or assessments “contrary to compelling inferences”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55]. As will be seen, the primary judgment was not infected with such weaknesses.

Background

14. The nature of the first ground of appeal in particular necessitates a reasonably detailed account of the evidence before the primary judge and his Honour’s detailed reasons for judgment.

15. Amy was the matriarch of the Chat Thai businesses, which she operated through various companies under the CT Group. One such company was Chat Thai, which was the proprietor of “Chat Thai Randwick”, “Chat Thai Manly” and “Chat Thai Haymarket”, which Amy established in 1993, 2001 and 2007 respectively. Amy operated the business with Pat, Palisa and Palisa’s husband, Matthew Anderson (Matt).

16. In 2005, Pat graduated from the University of New South Wales with a Bachelor of Architecture, and subsequently became more involved in the Chat Thai business. Pat was involved in the management and operation of the Chat Thai business, and he also contributed through design and fit-outs of the restaurants. Pat’s evidence was that he worked “side by side” with Amy in making “executive decisions”.

17. In 2010, Palisa returned to Australia after being overseas since 2003 and became more involved in the Chat Thai business. Upon her return, Palisa’s role included being a brand ambassador, and contributing to corporate strategy and marketing. Palisa and Pat did not see “eye to eye” in relation to the operation of the Chat Thai business, which concerned Amy.

18. In around March 2013, Palisa, Matt and Amy purchased the Mosman Property as tenants in common, with Amy owning a 12% interest, and Palisa and Matt owning a 44% interest each.

19. In around November 2015, Palisa, Matt and Amy purchased Boon Luck Farm, with Amy acquiring a 1/3 interest. Boon Luck Farm produces organic fruit, vegetables and herbs, which supply the Chat Thai businesses and other restaurants in Sydney.

20. The NSW Will was executed on 25 August 2017.

21. In 2017, a small “dot” was discovered in Amy’s lung during a routine health check-up, despite Amy feeling no symptoms.

22. In November 2018, Amy was diagnosed with stage 4 lung cancer in Thailand. From November 2018 to November 2019, Amy’s lung cancer was treated in Thailand.

23. On 24 December 2019, Amy travelled to Sydney but returned to Bangkok on 13 January 2020 after complaining of headaches.

24. Around 20 January 2020, Amy was diagnosed with brain cancer, the cancer having spread from her lungs. Amy underwent thoracentesis and pleurodesis procedures the same day.

25. On 27 February 2020, doctors discovered significant progression of metastases in Amy’s lungs, and new metastases in Amy’s spine, brain and lymph nodes.

26. From 15 to 30 March 2020, Amy received laser treatment in relation to her brain masses every two days in Thailand. On 29 March 2020, Amy underwent a cycle of chemotherapy. In late March 2020, Amy was sent home in Thailand with a pain management program, including fentanyl patches and morphine.

27. From April 2020, Amy underwent further chemotherapy treatments around once every three weeks. From 12 to 13 April 2020, Amy was admitted to hospital in Bangkok, where her appearance was listed as “abnormal”.

28. On 14 April 2020, Amy received treatment which consisted of various medications and drugs, including fentanyl and morphine. On 19 April 2020, Amy underwent a further cycle of chemotherapy. On 11 May 2020, Amy received carboplatin and paclitaxel (chemotherapy drugs), and from the next day, she received a range of other drugs. The chemotherapy and treatment with carboplatin and paclitaxel was repeated on 1 June 2020.

29. The primary judge held that in early May 2020, Amy asked Bob to help her with updating her will: PJ [30]. The primary judge accepted Bob’s evidence that he translated the NSW Will into Thai and that Amy then told him to:

(a)    change the gift of the shares in the CT Group so that Pat would receive all of Amy’s shares; and   

(b)    make specific reference to the real property that formed the farm in Hua Hin, Thailand (the Hua Hin Farm).

30. On 2 June 2020, Amy met with Prasong Kasemnate, a lawyer in Thailand who had practiced in the area of wills and estates for 34 years at the time, and was recommended by Amy’s close friend, Thitirat Srisomboon. Bob was also present at this meeting. His affidavit evidence was that:

“On or about 2 June 2020, Prasong came to see Amy at Vejthani Hospital to discuss updating Amy's will. I was also present as I accompanied Amy to her chemotherapy treatment like usual. Amy told Prasong about what she wanted to update in her will and asked him if she can use her fingerprint instead of her signature because her signature would not be the same as her usual signature due to some physical weakness and she also wanted to avoid forgery of her signature. We had a conversation in words to the following effect:

Amy said:   “I want to make another will to change the recipient of my estate and add my land in Thailand. I don't trust Matt, my son in law.”

Prasong said:   “I will help you do it.”

Amy said:   “Can I use my fingerprint? Because of my weakness, my signature might not be the same as usual. Also, I don't want anyone to copy my signature.”

Prasong said:   “You can use your fingerprint instead of signature. This would be the best way to do it because no one can fake your fingerprint.””

31. Mr Kasemnate provided evidence that, during the meeting, an exchange occurred to the following effect:

“[Amy] said:   About three years ago, I already made a will in Sydney but I want to make a new one to cover my assets in Thailand. I would also like to change the beneficiaries in regard to the business. My old will states that my son and daughter are to be the joint beneficiaries, but in the new will I would like only my son to be the sole beneficiary and to take care of the business[.]

I said:         What is your reason?

[Amy] said:   Because my daughter's husband is a foreigner, I believe he [referring to her daughter's husband] wants to take control of all of my business.”

32. Mr Kasemnate gave unchallenged evidence that Amy was “able to communicate well and was in a good mood”, and that “she clearly conveyed her instructions for her new will and did not appear confused”. Following the meeting, Amy instructed Bob to prepare drafts of her updated will.

33. Bob gave evidence that following his and Amy’s initial meeting with Mr Kasemnate, the three of them spoke by phone. He recalled Amy saying:

“Amy said:   “I don't trust Matt. Pat is my only son so who else is going to run the business. Palisa can do everything by herself. She's famous now."

I said:      “That's fine. It is up to you.””

34. On 11 June 2020, Amy appointed Bob as alternate director for Chat Thai, Chat Thai CBD and other companies. Bob provided evidence that he and Amy had the following exchange:

“Amy said:   “I need you to represent me for Chat Thai group as I am currently ill and cannot work properly.”

I said:   “Until now I was always representing you on many different occasions anyway. If you want to make it official, then I am happy to do it for you.””

35. In mid-June 2020, Bob also provided a draft will to Mr Kasemnate, which Bob said he had shown and read out to Amy, and which she had confirmed reflected her intentions. Bob provided evidence that, when updating the will, Bob and Amy would sit together, and Bob would read the contents of the will to Amy. Bob said that, throughout this process:

“Amy was very clear when giving me instructions about how she wanted to update her will. She understood what she was doing and understood that she was giving everything to Pat solely except for her interests in Boon Luck Farm and the Mosman Property.”

This evidence was not the subject of any objection.

36. On 21 June 2020, Amy was admitted to hospital in Bangkok for “palliative CMT”, which meant that chemotherapy was being administered with palliative intent. This treatment commenced the following day.

37. On 24 June 2020, Amy was discharged from hospital and treated with various medications including fentanyl, morphine, and olanzapine.

38. On the same day, Amy made the Thai Will. As already noted above at [6], under it, Palisa received Amy’s interest in Boon Luck Farm and the Mosman Property but received no shares in the CT Group. Pat received all of Amy’s shares in the CT Group, four parcels of land in Thailand and the residue of her estate.

39. Bob was present when Amy signed the will on 24 June 2020, using her thumbprint. Bob’s evidence was that:

“On this day, Amy appeared normal and did not have any issues with her mental capacity. Amy was able to maintain conversations and her responses were normal. Amy told the witnesses to the 2020 Will and myself what she wanted in the 2020 Will without any difficulty. Amy was alert and aware of what she was doing. Amy greeted Thitirat and Nitha Klaisoi (Nitha) when they arrived separately and made small talk with them. The conversation flowed easily and Amy was engaged in the small talk as she asked appropriate questions. She did not say anything that appeared to be out of the ordinary or irrelevant to the conversation.”

40. The Thai Will was witnessed by two of Amy’s friends. One such friend, Ms Srisomboon, was also a business associate of Amy’s, who had had weekly contact with her since 2014 although the level of that contact had dissipated by mid-2019. Ms Srisomboon’s evidence was:

“[11]   I had known about Amy's illness for some time but 24 June 2020 was the first time I had seen her in more than a year. The last time I saw Amy in person was at her ordination ceremony at a Dhamma Retreat in Bangkok on or about 29 and 30 March 2019.

[12]   Amy looked well but had lost her hair and was a bit skinner than usual. There was no difference in Amy's mental capacity and she appeared to be the same as in all my previous dealings with Amy. She spoke clearly and was able to maintain conversation. There were no issues with Amy's memory and Amy did not show any signs of reduced mental capacity. We talked casually for about 15 minutes before Amy proceeded with signing her will. I said words to the following effect: "How are you, I hope you are getting better soon." I did not bring up Amy's health too much as I wished to keep her spirits up. I do not recall any specific topics we discussed.

[13]   Amy explained the background and reasons for making her new will. She said words to the following effect: "Around three years ago I did a will with a lawyer in Sydney but I want to update it. I want to make the new will today and it will be my final will."

[14]   Amy also said words to the following effect: "Pat will look after everything and everyone. He helped me at the beginning [referring to the growth of Chat Thai] and knows what I want.””

41. The other witness was Nitha Klaisoi. Her evidence in relation to the day of execution of the Thai Will was as follows:

“[8]   Amy was smiling and very friendly. Amy looked alert and was aware of why we were there that day. When I arrived, Amy recognised who I was and called me by my name. Amy looked a bit skinnier and had no hair.

[9]   Amy's mental state was the same as my pervious [sic] interactions with her and I did not notice any difference. Amy did not do or say anything to cause me to be concerned about her mental capacity. I engaged in casual conversation with Amy. We discussed her health and other casual topics which I cannot recall. This conversation lasted approximately 10 to 20 minutes. During our conversation, Amy was responsive and the conversation felt the same as my previous conversations with her.

[10]   Amy did not show any signs of confusion and spoke very clearly about why she was making a new will. She did not have any issues with her memory or being alert as set out in paragraphs 8 and 9 above.

[11]   Amy told me her reasons for making the will and we had a conversation in words to the following effect:

Amy said:   “I have cancer and I know that I do not have much time left. I made an earlier will about two to three years ago but that will is not complete. It does not cover assets that I have acquired since making that will. A lawyer has already prepared the will and told me that if it is inconvenient for me to sign it, I can use my fingerprint instead of my signature. The lawyer also told me that using a fingerprint was better because no one can forge it.””

42. On 1 July 2020, according to Bob’s evidence which the primary judge accepted (PJ [37]), Amy instructed Bob to execute share transfer forms in respect of her shares in Chat Thai, Chat Thai CBD Pty Ltd, Amy Pty Ltd, Jarern Chai Pty Ltd, Jumpee Travel Pty Ltd, Natui Website Pty Ltd and Thai Press Pty Ltd. Bob provided evidence that he and Amy had the following conversation:

“Amy said:  “The will already gives the shares to Pat. So let's do it to finish it.”

I said:  “Okay.””

43. That same day, Amy transferred her shares in the companies outlined above at [42] to Pat. Bob signed the transfer forms required. The primary judge held that the transfers were consistent with the terms of the Thai Will: PJ [16]. His Honour also observed that this was “consistent with Amy’s desire earlier in April 2020 to explore the possibility of transferring the Mosman Property and Boon Luck Farm to Palisa prior to her death”: PJ [37].

44. On 4 July 2020, Amy engaged in a discussion with Bob and Ole (Chat Thai’s accountant) in relation to issues concerning wages of her Chat Thai management staff during the COVID-19 pandemic.

45. From 17 to 25 July 2020, Amy instructed her staff to open the restaurant at Hua Hin Farm because the Thai government had eased COVID-19 restrictions which enabled restaurants to open. Amy also provided specific instructions to the graphic designer in order to create a new menu. Bob provided evidence that Amy was “very clear” in her instructions about the direction she wanted her Hua Hin Farm restaurant to take.

46. On 14 August 2020, Amy sent a voice message to Palisa, informing her that she did not consent to Palisa using the Chat Thai name for a restaurant Matt and Palisa were opening in Neutral Bay NSW. The voice message was recorded, as set out in Bob’s evidence, and stated:

“Gib [referring to Palisa], tomorrow you are opening the shop and I didn't know about this before. You never consulted me. You called me on the last day and you sounded ambiguous, not being clear about what you were going to do. So, there is no approval from the central body [referring to Chat Thai management], which includes Gat [referring to Pat] because he is also a partner an [sic] Khun Tee [referring to Bob], who I have appointed to do things for me, because I am not well. Therefore, I have thought about it. I couldn't sleep at all actually. I want to tell you that I do not approve of the opening of a store called Chat Thai Neutral Bay. However, in case you would like to open the store, you are entitled to do that but with a different name. I told you that you have promoted yourself so that you are well known now. Therefore, if there is anyone who gives you an investment to open a store just do it. You told me that there might be an investor to open a store. That's good because you are famous, actually more famous than Chat Thai. And about Boon Luck Farm now, why don't you do it. So tomorrow at this initial stage, I do not allow the use of Chat Thai name. If you want to open the store, you can use another name for now until we talk and have a new agreement.”

47. On 26 August 2020, Amy sent two voice messages to the Chat Thai staff group chat in the space of three minutes. The first message, at 7.44pm was as follows:

“Happy birthday Ping and Pong [staff members of Chat Thai]. Thank you for everything. Thanks for looking after Chat Thai and thanks for your love for Chat Thai. In this photo that I took, the doctor asked me to blow up the balloon. Breathing in and out with mindfulness. I am getting better and better at it. I am trying to treat myself and look after myself and Phi Gat [Pat] is also looking after me. He is spoiling me, making me feel warm and secured because I have Phi Gat here, he is like a representative of all of you. Phi Gat himself is thinking about work. He is going back because lots of work are waiting for him. Phi Gat is working here in the farm. He has to change himself. The job he has done, it's very beautiful, all the corners of the farm. I am glad to see that. Phi Gat is ready to go back to manage Chat Thai. I have taught him many things, many different things. So anyway, we may be talking constantly now. I love everyone, especially you Ping and Pong. Thank you and please look after [the business] for me. Happy birthday.”

48. At 7.47pm on 26 August 2020, Amy sent the second voice message to the Chat Thai staff group:

“I forgot to tell you, in the photo, the doctor told me it is called ping pong. It's a medical equipment. I have to blow it. I have to take a deep breath and blow it out completely. Doing this whole day, it's making my lung better and I am breathing better.”

49. On 27 August 2020, Amy sent the following voice message to her friend (and senior Chat Thai employee), Sirilada Kruahong (or Fern), in reference to the two earlier voice messages she sent the preceding day:

“Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know.”

50. From late October 2020, Bob noted that Amy started to become weaker and eventually stopped being capable of walking. Despite this, Bob noted that at this date, Amy could:

“…still speak and communicate clearly. Amy did not shows [sic] signs of her mental capacity being adversely affected.”

51. On 16 November 2020, Amy experienced altered consciousness, meaning that she was sometimes awake, but at other times drowsy or unconscious. Amy was then admitted to the intensive care unit and intubated because doctors suspected she had septicaemia, and required support through ventilatory machines.

52. From 28 November 2020, Amy was in a coma. During the coma, a CT scan of her brain showed progression of the brain metastases. As noted above, on 10 March 2021, Amy died.

The primary judgment

53. The key issues at first instance concerned whether Amy possessed testamentary capacity at the point that she executed the Thai Will on 24 June 2020, and knew and approved of the contents of that will. This was an issue in respect of which Pat bore the onus of proof.

54. His Honour referred to the familiar principles and authorities in this area as usefully summarised by Kirk JA in Lim v Lim [2023] NSWCA 84 at [7]-[9] (Lim). It is convenient to reproduce that summary:

“[7]   It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] per Basten JA):

(a)    the capacity to understand the nature of the act of making a will and its effects;

(b)    the capacity to understand the extent of the property the subject of the will;

(c)    the capacity to comprehend moral claims of potential beneficiaries; and

(d)    the absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property” (to quote Bailey v Bailey (1924) 34 CLR 558 at 571-572 per Isaacs J).

[8]   Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]-[41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one’s property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries.

[9]   Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA.”

55. Reference was also made to the observation by Kirby P in Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 295:

“In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.”

56. The primary judge accepted at PJ [209] that issues of capacity on the one hand and knowledge and approval on the other hand are separate concepts, citing Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [166]. This conceptual distinction is reflected in the grounds of appeal.

57. In relation to the question of knowledge and approval of the contents of the Thai Will, the primary judge noted the following principle at PJ [246]:

“In brief, where a will is properly executed and witnessed, a presumption arises that the testator also knew and approved of its contents. However, where the circumstances surrounding the giving of instructions for a will and its subsequent execution are such as to excite suspicion that the provisions of the will may not have been fully known to, and approved by, the testator, that presumption as to knowledge and approval does not arise and the person seeking to propound the will has the burden of removing the suspicion.”

58. The issues of Amy’s testamentary capacity and knowledge of the contents of the Thai Will centred upon a factual dispute as to Amy’s cognitive abilities as at 24 June 2020, the date of the will’s execution. His Honour engaged in a detailed assessment of both lay and expert evidence at PJ [40]-[198].

Assessment of lay evidence

59. The primary judge assessed the lay evidence of eight witnesses. For the Appellant, Palisa and Matt provided evidence. For the Respondents, there were six witnesses: Bob, Mr Kasemnate, Ms Klaisoi, Ms Srisomboon, Ms Kruahong and Pat. The primary judge’s assessment of each witness is outlined below.

Palisa’s evidence

60. The primary judge summarised and assessed Palisa’s evidence, comprising five affidavits and oral evidence, at PJ [42]-[52]. His Honour held that, generally, Palisa was a “truthful and sincere witness”, despite being unresponsive to some questions, and providing indirect answers: PJ [45].

61. Palisa’s first affidavit, dated 11 April 2022, recited that between December 2018 and July 2019, Amy was aware of her surroundings and circumstances, but was unwilling to enter discussions capable of causing stress, anxiety or conflict. The primary judge held that such evidence did not cast doubt on Amy’s cognition, and instead reflected a rational and considered decision: PJ [43(a)]. Palisa also stated that in December 2019, whilst in the Mosman Property, Amy only socialised if people visited her there. The primary judge held that such evidence was unsurprising, because this was during the Sydney bushfires: PJ [43(b)].

62. Palisa’s first affidavit also claimed that, between August 2019 and January 2020, Amy was forgetful, lacked acuity, suffered from lethargy and generally demonstrated “scatter-brained” behaviour. Two indicative examples included:

1. forgetting about her plans to go to the movies with Palisa, and forgetting to attend a production meeting for a television series with SBS; and

2. when taking Palisa’s children to school, driving in the wrong direction towards CT Group’s shared office in Haymarket, rather than the school in Balmain.

Whilst the primary judge accepted that Amy suffered from headaches and some forgetfulness, he did not accept that Palisa’s examples, viewed individually or as a whole, indicated Amy lacked testamentary capacity six months before signing the will: PJ [43(c)].

63. Palisa claimed that she had a conversation with Bob in mid-April 2020 where he purportedly said words to the effect that Amy’s pain management program had resulted in her being “too cloudy at times” and her “memory isn’t great”. Bob denied that this conversation took place, and the primary judge preferred Bob’s evidence on this issue: PJ [43(f)].

64. Palisa gave evidence that, from mid-March to 5 June 2020, Amy had “bouts of forgetfulness and confusion”, evidenced by repeating herself, and calling Palisa either “Soraya” (Palisa’s daughter) or “Pat”. Palisa also said that Amy referred to chemotherapy as “sweet water” or “nectar”. The primary judge accepted Palisa’s evidence in this regard: PJ [43(g)]. Nonetheless, his Honour noted that such evidence must be assessed having regard to the evidence of other witnesses as to Amy’s cognition at the same time period: PJ [43(g)].

65. Palisa also gave evidence that Ms Kruahong had told her that Amy seemed forgetful and was often repetitive. Ms Kruahong provided contrary evidence, saying that in or about mid-July 2020, Amy had left voice messages asking her to buy certain products for the Chat Thai business. Ms Kruahong said that Amy’s instructions in this regard were clear, and that she “sounded well and like her usual self”. The primary judge did not expressly determine whether he preferred Ms Kruahong or Palisa’s evidence on this specific point: PJ [43(h)].

66. The primary judge noted that Palisa disagreed with Bob’s evidence that between mid-March 2020 and early June 2020 Amy “did not ever appear to have been mentally affected by the chemotherapy treatments in April 2020”. Palisa said that Amy would say to her that she felt weak and was having problems breathing, ate very little, slept poorly and was paranoid about her medication and supplements. His Honour noted that this evidence indicated that Amy was physically debilitated by the chemotherapy, which was hardly surprising, but that, to the extent that it bore upon Amy’s cognitive functioning during this time, his Honour considered that the evidence should not be looked at in isolation but “needed to be assessed along with the evidence of other witnesses who were in as good if not a better position than Palisa to assess Amy’s cognition during and around this time, particularly Bob who was spending a lot of time with Amy in Thailand”: PJ [44(a)].

Matt’s evidence

67. The primary judge held that Matt was a “truthful witness”, but that his evidence was of “limited value in assessing Amy’s testamentary capacity”: PJ [57]. Matt provided unchallenged evidence that during his visit to Bangkok from 29 January to 4 February 2020, Amy described Matt as “my son”, and when Matt tried to correct this, Amy repeated “[n]o, you are my son”.

68. The primary judge gave this evidence “little weight” because the event occurred five months prior to the Thai Will’s execution: PJ [53]. Furthermore, the confusion could be explained by the fact that the impugned conversation occurred during her hospitalisation for brain cancer. In turn, his Honour held that such evidence should be weighed against all other relevant evidence concerning Amy’s capacity when the Thai Will was executed: PJ [53]. It might also be added that he was Amy’s son in law and such a reference may well have been understandable in that context.

Bob’s evidence

69. The primary judge held that Bob, who gave evidence through a translator, was a “truthful and responsive witness” and accepted his evidence “without reservation”: PJ [59]. The primary judge also rejected challenges made to Bob’s credibility: PJ [59].

70. The primary judge held, in respect of Bob’s assessment of Amy’s capacity around the time of executing the Thai Will (PJ [68]):

“I accept Bob’s unchallenged evidence that, on 24 June 2020, ‘Amy appeared normal’. I regard this as significant supporting evidence as to Amy’s testamentary capacity. Bob and Amy were very close family members and he was in a unique position over many months to observe and assess the effects on Amy of the brain cancer and the treatment she was receiving. Bob freely acknowledged that there were periods when Amy was physically unwell. For example, he deposed to a conversation which they had in early June 2020 when Amy told him that she needed him to represent her for the Chat Thai Group as she was, in her own words, ‘currently ill and cannot work properly’. This does not mean, however, that she lacked testamentary capacity. Merely because Bob took on an increased role in assisting Amy in the conduct of the Group’s businesses and operation from about May 2020 does not demonstrate that Amy lacked testamentary capacity.”

71. Bob observed that in February 2020, “Amy was alert and able to remember things that happened recently, as well as in the longer term past”. Around 14 February 2020, Amy was described by Bob as being “normal as she was able to speak normally, although a little slower”. Palisa sought to criticise such evidence as “vague” and “devoid of specificity”. However, the primary judge rejected such criticisms, holding that Bob’s evidence constituted “the kinds of observations which one would expect to be made about another family member in Amy’s condition. Nor were they lacking in particularity”: PJ [75].

72. Bob provided further evidence, which the primary judge accepted at PJ [77], that:

“In about April 2020, Amy started chemotherapy treatments which she continued to have once every three weeks which I accompanied her to. On the days Amy received chemotherapy, she would be tired and show some signs of physical weakness. However, Amy did not ever appear to have been mentally affected by her chemotherapy treatments. For example, she was able to recall the progress of her treatments.”

73. Palisa contended that Bob’s process for creating the Thai Will was deficient, as Bob purportedly never asked Amy whether she understood the contents of the will. This submission rather overlooked Bob’s evidence, which the primary judge accepted, that it was Amy who gave Bob the instructions to alter her NSW Will: see [29] above. Further, the primary judge held at PJ [79] that Palisa’s submission did not “accurately reflect Bob’s oral evidence”, which was as follows:

“Q.  Once you had a draft prepared, how did you confirm with Amy that that draft reflected what she wanted?

A.   INTERPRETER: So, each time I produced a draft of the will, we'd go and have Amy go through each paragraph, each sentence, to confirm that. So I printed it out for her.

Q.   How did you know that she agreed with what was written on the page?

A.   INTERPRETER: So, I read it sentence by sentence for her to hear, and she would say, "Yes, okay, okay".

Q.   I observed, as you were providing that answer, that you were tracing your finger across the page. Whose sorry, I withdraw that question. As you were answering that question, you were tracing your finger across the page. Was that a movement that you did, or was that a movement that Amy did?

A.   INTERPRETER: So, I was following, pointing it out with my finger, and going along the line of his sentence, and Amy was reading what I was pointing out.

Q.   And how do you know that Amy was reading?

A.   WITNESS: I saw her, when I - when I read, and then I look at her.”

The primary judge inferred from Bob’s oral evidence that Amy’s repeated statement “[y]es, okay, okay” indicated that Amy was satisfied with Bob’s description of the updated drafts for the Thai Will: PJ [80].

Mr Kasemnate’s evidence

74. The primary judge noted that Mr Kasemnate was an experienced Thai lawyer, with 34 years’ legal practice: PJ [86]. The primary judge observed that it was “clear that Mr Kasemnate turned his mind to whether Amy had testamentary capacity”, which was unsurprising because he was visiting Amy in hospital for the purpose of providing legal advice about creating a new will: PJ [86].

75. As already noted, Mr Kasemnate’s unchallenged evidence concerning Amy’s testamentary capacity was that, at the time of his meeting with Amy:

“(a)   she looked like most people who had cancer. For example she had hair loss and looked skinny;

(b)    she still had a good ability to do things herself;

(c)    she moved and walked slower than normal people;

(d)    she was able to communicate well and was in a good mood; and

(e)    she clearly conveyed her instructions for her new will and did not appear confused.”

76. Mr Kasemnate noted that the above observations were made because:

“…as an outsider, like, I just wanted to just record on paper the status of [Amy’s] health according to what I was seeing.”

77. Mr Kasemnate further explained that he assessed Amy’s health at the time of the meeting because:

“…a person that's making a will, like, usually they should be in okay health. They should be able to communicate clearly, they should be understandable. If that wasn't the case, I would not have advised her to make one.”

78. The primary judge held that such oral evidence provided (PJ [87]):

“compelling evidence that Mr Kasemnate, an independent and experienced lawyer, was conscious of the need to assess Amy’s capacity and that he proceeded to do so.”

Ms Klaisoi’s evidence

79. Whilst Ms Klaisoi witnessed Amy execute the Thai Will, she admitted that she was not close friends with Amy, and only had around ten interactions with her, which “lasted about one minute each time”. Accordingly, his Honour gave “Ms Klaisoi’s evidence little if any weight on the issue of Amy’s testamentary capacity”: PJ [89].

Ms Srisomboon’s evidence

80. The primary judge accepted at PJ [240] that Ms Srisomboon had known Amy for “many years”, despite not having seen her for almost a year before witnessing the execution of the Thai Will. His Honour acknowledged that Ms Srisomboon spoke with Amy for 15 minutes whilst the Thai Will was being executed. Ms Srisomboon’s evidence that, in her view, on the day of the Thai Will’s execution, “[t]here was no difference in Amy’s mental capacity… She spoke clearly and was able to maintain conversation. There were no issues with Amy’s memory” was also noted by his Honour. Ms Srisomboon also gave evidence that Amy was “thinking like a business woman” and “she want[ed] to get things organised”: PJ [90]. His Honour held that these latter statements provided “some, albeit limited, weight regarding Amy’s capacity at the time”, and that they were consistent with Amy’s contemporaneous decision to arrange her affairs: PJ [90].

Ms Kruahong’s evidence

81. Ms Kruahong is a senior employee of the CT Group, and was Amy’s friend: PJ [91]. Ms Kruahong provided evidence that there was a group meeting on 3 March 2020 with Amy, and that during the meeting, the Chat Thai businesses were discussed at length, including employee roles and management. Ms Kruahong acknowledged that Bob was providing Amy with “considerable” assistance in this process.

82. Ms Kruahong provided evidence as to the two voice messages sent on 26 August 2020 by Amy to the Chat Thai group chat (set out at [47]-[48] above), which the Appellant contended were repetitive and indicated her declining cognitive capacity: PJ [95].

83. The primary judge rejected Palisa’s contention that the voice messages were repetitive, noting that there was no mention in the first voice message sent at 7.44pm that the apparatus which Amy was using or blowing was called the “ping pong machine”: PJ [104]. The first message made no reference to a “ping pong” machine, and instead only referred to the apparatus being a “balloon”: PJ [104].

84. Furthermore, the primary judge held that Amy’s subsequent personal voice message to Ms Kruahong on 27 August 2020 (see [49] above) was significant because (PJ [107]):

“It may also be inferred from the 27 August 2020 voice message which Amy sent to [Ms Kruahong] that Amy was conscious of the fact that she had made a mistake the previous day by sending her messages to a wider group of recipients, which was not her intention. She then rationalised, however, that this had happened and that she was not unhappy about her mistake because her message to the wider group broadcast her intention of having Pat become the leader of the Chat Thai Group. Far from this reflecting adversely on Amy’s cognition, her recognition of her mistake and her subsequent rationalisation that the mistake may in fact have had unexpected advantages provides evidence which supports Amy’s cognition at this time. That is further reinforced by the fact that, in sending the second message, with the reference to the doctor calling the machine “ping pong”, Amy displayed a good sense of humour and was demonstrating this quality in the context of her having sent birthday wishes to her employees Ping and Pong.”

85. Consequently, the primary judge “firmly” rejected Palisa’s contention that the voice messages sent on 26 and 27 August 2020 outlined above cast doubt on Amy’s cognition in the period that those messages were sent: PJ [109]. Rather, his Honour drew the opposite inference: PJ [109].

Pat’s evidence

86. The primary judge rejected the Appellant’s contentions that Pat was a “most unsatisfactory witness” and that he refused to make “direct and frank answers to questions”: PJ [110]. The majority of the evidence provided by Pat did not relate specifically to Amy’s testamentary capacity, and instead concerned his role in the business, and ancillary matters: see PJ [111]-[143]. Pat annexed to his first affidavit dated 8 April 2022 a video taken of Amy around October 2020 singing one of her favourite Thai songs while Pat drove her to her chemotherapy appointments: PJ [119].

Assessment of expert medical evidence

87. Palisa relied upon two expert medical reports prepared by Dr Dua and Professor Ogden. The primary judge placed minimal weight on either report in determining Amy’s testamentary capacity because neither expert examined Amy, and both relied upon medical records which provided minimal detail as to Amy’s cognitive capacity:

“[197]   I do not doubt the expertise, professionalism and objectivity of either Dr Dua or Professor Ogden. The fact remains, however, that both their expert reports, although very comprehensive, are in the nature of desk studies. Neither of them saw or examined Amy. Moreover, and significantly, prior to finalising their respective expert reports, neither was given the advantage of reviewing any of the lay witness statements nor were they briefed with copies of the various videos which cast some light on Amy’s physical and cognitive condition at various relevant points in time.

[198]   I accept Dr Chapple’s submission that the medical opinions of both experts, while sincerely given, are largely speculative, based on incomplete medical evidence, and on assumptions drawn from generalisations and not from specific observations in the medical records. I do not consider that their opinions outweigh the evidence of the lay witnesses and other materials which support a finding that Amy did not lack testamentary capacity.”

Dr Dua

88. The primary judge held that the utility of Dr Dua’s evidence in determining Amy’s capacity was “limited by the fact that it [was] based upon his review of limited medical records which documented Amy’s treatment and hospital admissions”: PJ [156].

89. In summary, Dr Dua’s opinion as to Amy’s testamentary capacity as at the date of executing the Thai Will was that:

“In my view, and based on my training, study and experience as an oncologist treating lung cancer that has metastasised to the brain (amongst other organs), it is highly unlikely that the Deceased had the cognition to understand and appreciate the nature, impact and effect of the Thai Will and Share Transfers.”

90. Dr Dua’s reasoning was as follows:

1. The location of the brain metastases is important to the patient’s cognitive function when suffering from cancer that has spread to the brain;

2. Radiation therapy and chemotherapy impact cognition in patients with brain metastases and the chemotherapy often results in what oncologists call “chemo brain”;

3. The cognition of patients with metastasised brain cancer depends on the cancer’s response to treatment, and certain treatments can affect cognition;

4. The presence of leptomeningeal disease (as was the case for Amy from 21 January 2020) impacts cognition; and

5. In his experience, where a patient’s disease progresses on a trajectory similar to Amy’s, and a patient experiences similar treatments, that person will “almost always suffer significant cognitive impairment as a consequence of both the disease and its treatment”.

91. Dr Dua acknowledged that the Thai medical and hospital records on which his report relied were “not clear or comprehensive”, and that day-to-day observations or examinations of the registrar would have assisted in making more specific observations about Amy’s cognition: PJ [146(c)].

92. Furthermore, while there was no reference to any cognitive impairment in the medical records dated 5 April 2020, 12 April 2020 and 13 April 2020, Dr Dua explained that such issues may have been overshadowed by greater concerns to her health, such as fluid in Amy’s lungs on 5 April 2020, and potential febrile neutropenia on 12 April 2020: PJ [146(h)].

93. Nonetheless, the primary judge noted that none of the medical records reviewed by Dr Dua contained any notations or observations of any cognitive impairment or reference to Amy suffering cognitive side effects from her treatment: PJ [157]. Furthermore, physical examination of Amy on 27 February 2020 showed that she recorded “good consciousness” and received the top Glasgow Coma Scale (GCS) score: PJ [157(d)]. Similar observations were found by the primary judge to have been made in hospital records dated 15 March 2020, 13 April 2020, 19 April 2020, 10 May 2020, 31 May 2020 and 21 June 2020: PJ [157(d)].

94. Dr Dua acknowledged in cross-examination that the outpatient medical note dated 27 February 2020 recorded a GCS (which measures basic neurological function) of 15, which was the “top score” available in relation to monitoring neurological function. Nonetheless, Dr Dua explained that the GCS is not a measure of cognition, and that it was merely a measure of basic neurological function.

95. As noted above, the primary judge placed minimal weight on Dr Dua’s evidence concerning Amy’s cognition, largely due to the limited material available to him (PJ [156]):

“I accept Pat’s submission that the utility of Dr Dua’s opinion is limited by the fact that it is based upon his review of limited medical records which documented Amy’s treatment and hospital admissions. Dr Dua acknowledged that the records were not comprehensive, particularly in that they did not disclose a “day to day” record of observations and treatment. Dr Dua agreed emphatically that the “day to day” records would assist him in being more specific in his observations.”

Professor Ogden

96. The primary judge held that Professor Ogden was an “exemplary witness”, but that his evidence failed to assist the court in determining Amy’s testamentary capacity at the point of her executing the Thai Will (PJ [160]):

“In his oral evidence, Professor Ogden proved to be a particularly convincing witness. He made concessions appropriately and was frank and direct in his answers. His plain intention was to assist the Court. I do not hesitate to describe him as an exemplary expert witness. For reasons which I will shortly explain, however, I found his evidence to be of limited value in this particular case.”

97. Professor Ogden’s “fundamental conclusion” was that Amy’s cognition was likely impaired at the time she executed the Thai Will:

“I have considered the totality of the information provided, and in the light of my clinical experience, study and training, it is my opinion that at the time of the adoption of the Thai Will and Share Transfers, the Deceased was significantly cognitively impaired with reduced executive function. She was unlikely to have been able to fully comprehend the nature of the important changes between the Thai Will and the Australian Will… In the light of my clinical experience, study and training, it is my opinion that at the time of the adoption of the Thai Will and Share Transfers the Deceased was unable to fully comprehend the nature of the decision she was making and the implications for the future.”

98. Like Dr Dua, Professor Ogden acknowledged that the available medical records, on which his report relied, were “incomplete”: PJ [161]. Furthermore, similar to Dr Dua, Professor Ogden commented on the side effects of the medication that Amy was taking, which included fentanyl, morphine, olanzapine and lorazepam: PJ [170]-[181].

99. Professor Ogden observed that Amy suffered weight loss of 30kg due to her condition of cachexia, and that such “wasting away” is concomitant with profound changes to the brain’s functioning: PJ [177].

100. Professor Ogden provided two examples which served to highlight the importance of closely examining persons in order to properly assess their cognition: PJ [178]. Professor Ogden said that, when observing the first patient in-person, it became clear that he was not aware of the changes that he wished to make to his will: PJ [178].

101. The second example related to Professor Ogden’s father. Professor Ogden explained that, through speaking with his father, it became clear that he did not consider the implications of what he was saying. Both examples, according to Professor Ogden’s own evidence, highlighted the importance of “having a close conversation” with the person whose cognition needs to be assessed – “preferably someone who is fully independent”: PJ [179].

102. The primary judge held that Professor Ogden’s evidence as to the importance of assessing individuals by having a face-to-face conversation served to diminish the strength of Professor Ogden and Dr Dua’s evidence, as neither of them had such an opportunity with Amy (PJ [180]):

“I entirely agree with this aspect of Professor Ogden’s evidence. Ironically, it serves to highlight the fact that Professor Ogden did not have the same opportunity with Amy to observe her cognition personally in contrast with the other two cases he described so powerfully. This is to be contrasted with the advantage experienced by people such as Mr Kasemnate, Bob and Fern, who were able to observe Amy at close quarters.”

103. So much was acknowledged by Professor Ogden, who said that the real way of determining the effect of an illness on an individual’s cognition is by having a conversation with that person: PJ [196]. Consequently, the primary judge placed less weight on Professor Ogden and Dr Dua’s evidence in relation to Amy’s cognition, as compared to Mr Kasemnate, Bob and Ms Kruahong: PJ [197]-[198].

(c)   Neither of the two beneficiaries (Palisa or Pat) were involved in the will-making process or were aware that the document had been executed.

(d)   Amy executed the will before two witnesses who were known to her in varying degrees. She explained her reasons to them for executing a new will.

(e)   The Thai Will is rational on its face, is considered, and does not exclude either of the two beneficiaries for whom Amy might be expected to provide. The differences between the Australian and Thai Wills are rational having regard to all the evidence concerning Amy’s intention to have Pat step into her shoes and run the Chat Thai businesses.”

165. No meaningful attack was made upon the primary judge’s conclusion that there were no suspicious circumstances so as to lead to rebuttal of the presumption. In addition to the reasons identified by the primary judge in support of his conclusion that there were no suspicious circumstances, there was also evidence which the primary judge accepted that it was Amy herself who initiated the change to the will (see [29]-[30] above) and who gave her reasons for doing so to Bob, thereby highlighting her understanding of its effect: see [33], [117]-[119] above.

166. As noted at [10] above, the third ground of appeal inverts the proper order of analysis by subordinating the challenge to the primary judge’s finding that there were no suspicious circumstances to the challenge to his conclusion that Amy knew and approved of the contents of the will.

167. The underlying assertion of suspicious circumstances by the Appellant was exiguous, at best. Amy had been a successful businesswoman. She considered that her daughter was successful in her own right, and, on the evidence which the primary judge accepted, did not want her son in law to have a continuing role in the business. That was her prerogative but it was more than just a question of taste or even cultural or personal prejudice: the primary judge referred to Matt’s candid agreement that, “by the end of 2019, he had formed the view that the Chat Thai business model was outdated, ineffective and unproductive and that he raised those sorts of matters with Amy”: PJ [228]. Amy disagreed. The primary judge accepted the evidence that “on the day that she executed her will, Amy explained to Ms Srisomboon that ‘Pat will look after everything and everyone. He helped me at the beginning and knows what I want’”: PJ [225] (emphasis added). She had given a similar explanation to both Bob and Mr Kasemnate in language which quelled any doubt as to her capacity or her knowledge as to what she was doing and the reasons for it: see [117]-[119] above. She wanted her son to have control of the business, referred to that matter to Bob personally and in her recorded audio message to Chat Thai staff and indeed, facilitated the transfer of power by effecting the transfer of the shareholding to Pat through Bob, prior to her death and a week after executing the Thai Will: see [6], [42]-[43] above. Nor was there anything unusual or suspicious in Bob assisting her in preparing the Thai Will. The evidence was that he had assisted her closely in business transactions.

168. The present case differs markedly from cases where the evidence revealed a prospective beneficiary encouraging the alteration of an existing will often at a time of extreme old age. The primary judge referred in this regard to Barry v Butlin [1838] 12 ER 1089 at 1091; see also, for example, Mekhail at [131]. On the evidence in the present case, neither Pat nor Palisa was aware of the change of will, and Amy’s brother Bob was not a beneficiary. Moreover, the primary judge reasonably accepted that Amy was in control of her faculties and this is most clearly seen in the messages she sent to her colleagues, Palisa and Ms Kruahong as reproduced at [46]-[49] above.

169. In any event, the primary judge’s conclusion that Amy did know and approve of the contents of the Thai Will was sound such that, even if the Appellant had been able to point to some circumstances arousing suspicion, the Respondents discharged the onus they bore. The primary judge accepted Mr Kasemnate’s evidence that, when he met with Amy at the hospital to discuss the creation of her Thai Will, she was “able to communicate well and was in a good mood”, and “she clearly conveyed her instructions for her new will and did not appear confused”. As also noted above at [131], the primary judge held (at PJ [239]) that:

“These observations carry additional weight because they were made in a context where Mr Kasemnate was visiting Amy in hospital and was on notice of her medical condition… Mr Kasemnate made clear in his oral evidence that he had turned his mind to Amy’s capacity to make a will and that he would have advised her not to do so if she could not communicate clearly or understandably.”

170. In that context, the primary judge made reference to Zorbas extracted at [130] above.

171. The Appellant argued that his Honour erred in finding that Mr Kasemnate’s evidence could be characterised in the way conceived of in Zorbas because: first, it was of “very limited utility” in resolving the question of Amy’s capacity at the time the Thai Will was executed; and, secondly, Mr Kasemnate purportedly asked Amy no questions directed at the ascertainment of her capacity. This submission overlooks the primary judge’s unchallenged finding that Amy met with Mr Kasemnate earlier in June 2020 and explained to him that she wanted to revise her will and her reasons for doing so: PJ [216].

172. In any event, Mr Kasemnate’s evidence formed only part of the evidence relied upon by the primary judge to satisfy himself of Amy’s testamentary capacity. His Honour referred, for example, to the fact that “on the day that she executed her will, she explained to the two witnesses that she had cancer and did not have much time left; that she had previously made a will; and that she now wished to update that will.” The failure to have proper regard to the whole body of evidence upon which his Honour drew to reach his conclusions was a general weakness of the Appellant’s written submissions. Questions of testamentary capacity will necessarily be resolved by reference to the universe of evidence before the Court. In Zorbas, Hodgson JA said at [65] that the “criteria in Banks v Goodfellow [(1870) LR 5 QB 549]… are matters for commonsense judicial judgment on the basis of the whole of the evidence”.

173. His Honour’s conclusion that he was comfortably satisfied that Pat discharged his onus of establishing that Amy had testamentary capacity when she executed the Thai Will on 24 June 2020 was based upon the five matters referred to at [114] ff. No effective challenge was made to any of the primary judge’s close reasoning in this regard. For this reason, coupled with the fact that no suspicious circumstances were established and, in truth, were only raised exiguously, ground 3 of the appeal must be rejected.

Ground 4: Declining to permit the service of further supplementary reports

174. Although ground 4 states that the primary judge erred in declining to permit the Appellant to serve supplementary reports of Dr Dua and Professor Ogden, his Honour’s ruling was only in respect of a supplementary report of Professor Ogden. As at the date of his Honour’s rejection of that report, Dr Dua had not prepared a supplementary report, although he had been instructed to do so.

175. The primary judge’s decision not to permit the service of a supplementary report of Professor Ogden was made on 25 October 2023, the third day of the trial. His Honour’s reasons for refusing to permit the service of supplementary evidence at that point in the trial have been referred to at [107] above.

176. Mr Ellison candidly accepted that Professor Ogden’s report “could've been prepared or obtained much earlier, but it wasn’t” and that “it was open to his Honour to do what he did, we just say that in the circumstances there was no prejudice.”

177. The primary judge was confronted by a late and unsatisfactorily explained attempt to lead further expert evidence in the middle of a trial. He accepted the submission of senior counsel for Pat that he was prejudiced and, as Mr Ellison fairly conceded, it was open to the primary judge to do what he did. What his Honour did was also consistent with s 56 of the Civil Procedure Act 2005 (NSW) and he was best placed to make a discretionary assessment on the application before him to lead additional evidence mid-way through the trial.

178. This ground of appeal must be rejected.

Conclusion

179. For the above reasons, the appeal should be dismissed with costs.

180. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of the Chief Justice. I agree with the orders he proposes, and with his Honour’s reasons on grounds 1, 2 and 4. The following elaboration of aspects of ground 3 does not repeat and assumes familiarity with those reasons.

181. As the Chief Justice observes, the assertion of “suspicious circumstances” at trial was exiguous as best. The pleaded case made no allegation of suspicious circumstances, and the challenge to knowledge and approval was entirely dependent upon the challenge to capacity which in turn was based on the advanced stage of the testatrix’s cancers and the treatment she was receiving for them. If, as the statement of claim presaged, further particulars were provided, they were not in the appeal books, although it is possible that they existed but were not tendered.

182. The written opening mentioned “suspicious circumstances”, but not so as to point out anything suspicious in the sense of this term of art, as opposed to asserted weaknesses in the defendant’s evidence. By the time of closing submissions, the plaintiff had ceased to rely on suspicious circumstances, either in writing or in oral address. The defendant had supplied a written submission which maintained that “[t]here is little in the circumstances surrounding the preparation of the 2020 will that excites suspicion”. Defence counsel’s oral submissions adopted the same approach.

183. In those circumstances, insofar as ground 3 complains about a failure to find suspicious circumstances, no foundation for that complaint was laid at the trial.

184. Further, I respectfully agree with the Chief Justice’s observation at [163] that if a contention is to be advanced that there were “suspicious circumstances”, then it should be pleaded or particularised or otherwise communicated well in advance of the trial, both as a matter of procedural fairness and because it will inform the decisions made as to the appropriate investigations and service of evidence. (It may also potentially inform the exercise of a discretion as to costs.) This accords with what was said in Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 at [11]-[13], to the effect that the significance of the doctrine of “suspicious circumstances” in a court determining probate in the absence of a jury at a trial in which all relevant evidence has been advanced can be over-stated. I concluded:

The reality of most modern litigation is that there is no opportunity for any determination of capacity or knowledge and approval in advance of the trial. In truth, the role of the presumptions flowing from the due execution of a rational will primarily affects not so much the conduct of the trial and the determination by the Court, but the preparation of litigation in advance of trial, and in particular the decisions to adduce evidence of cognitive capacity and the circumstances surrounding the execution of the will.

185. The trial giving rise to the present appeal was one where there was a full exchange of evidence on testamentary capacity. The result was that the position accorded with the position stated by Williams J in Bull v Fulton (1942) 66 CLR 295 at 343; [1942] HCA 13, “[u]sually the evidence is such that the question upon whom the onus of proof lies is immaterial”. As the reasons of the Chief Justice explain, the primary judge undertook a review of all relevant evidence which bore upon the knowledge and approval of the testatrix, and nothing said in this appeal discloses error in the conclusion that his Honour reached.

186. MITCHELMORE JA: I agree with the Chief Justice.

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Decision last updated: 12 September 2024