Attwell v Morgan

[2019] WASC 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ATTWELL -v- MORGAN [2019] WASC 182

CORAM:   CURTHOYS J

HEARD:   8-10 APRIL & 30 APRIL 2019

DELIVERED          :   28 MAY 2019

FILE NO/S:   CIV 1262 of 2018

BETWEEN:   PHILIP BRYAN ATTWELL as trustee for BRIAN VINCENT ATTWELL

First Plaintiff

WENDY JENNIFER TRUSLOVE as trustee for BRIAN VINCENT ATTWELL

Second Plaintiff

AND

STEPHEN JOHN MORGAN as executor of the will of BRIAN VINCENT ATTWELL

BRIAN LEE FULLER as executor of the will of BRIAN VINCENT ATTWELL

First Defendants

IAN MICHAEL ATTWELL as trustee for BRIAN VINCENT ATTWELL

Second Defendant

STEPHEN JOHN MORGAN as executor of the will of BRIAN VINCENT ATTWELL

CONSTANTYN WILLEM RECEVEUR as executor of the will of BRIAN VINCENT ATTWELL

Third Defendants

Catchwords:

Testamentary capacity - Will - Codicil - Lucid intervals

Legislation:

Nil

Result:

Probate granted of will of September 2015 and Codicil of May 2017

Category:    B

Representation:

Counsel:

First Plaintiff	:	Dr J J Hockley
Second Plaintiff	:	Dr J J Hockley
First Defendants	:	Ms C H Thompson
Second Defendant	:	Mr T M Clavey
Third Defendants	:	No appearance

Solicitors:

First Plaintiff	:	Dwyer Durack
Second Plaintiff	:	Dwyer Durack
First Defendants	:	Seymour Legal
Second Defendant	:	Eastwood Law
Third Defendants	:	Eastwood Law

Case(s) referred to in decision(s):

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bool v Bool [1941] St R Qd 26

Brown v Guss [2014] VSC 251

Gibbons v Wright (1954) 91 CLR 423

Nicholson v Knaggs [2009] VSC 64

Perpetual Executors Trustees & Agency Co (WA) Ltd v Deacon (1936) 38 WALR 31

Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007

The State of Western Australia v Attwell [2014] WASCSR 16

Tobin v Ezekiel [2011] NSWSC 81

Veall v Veall [2004] VSCA 204

Vernon v Watson [2002] NSWSC 600

CURTHOYS J:

Introduction

1. On 13 July 2017, Brian Vincent Attwell (Brian) died at Fiona Stanley Hospital (FSH) aged 77 (exhibit 2‑508; exhibit 2‑509).

2. Brian was survived by:

   (a)his de facto wife of approximately 27 years, Wendy Truslove (Wendy); and

   (b)two sons, Phillip,[1] born on 14 April 1967) (now 52 years of age) and Ian, born on 17 September 1965 (now 53 years of age).

   [1] The name of the first named plaintiff is sometimes spelt Phillip and sometimes spelt Philip.  In the 2015 Will it is spelt Phillip.  Accordingly, for the sake of consistency, the spelling Phillip has been used throughout these reasons.

3. Brian made a number of wills and a codicil.

4. The plaintiffs seek an order for probate of Brian's will of 7 August 2012 (exhibit 2, tab 3) (the 2012 Will).  The first and second defendants seek an order for probate of Brian's will of 7 September 2015 (exhibit 2, tab 7) (the 2015 Will) and a codicil of 31 May 2017 (exhibit 2, tab 12) (the 2017 Codicil).

5. The principal issue in this matter is whether Brian had testamentary capacity when he executed the 2015 Will and the 2017 Codicil.

The parties

1. The plaintiffs, Phillip and Wendy, are beneficiaries under the 2012 Will and the 2015 Will.

2. The first defendants are the executors of the 2015 Will.

3. The second defendant, Ian, is a beneficiary under the 2012 Will and the 2015 Will.

4. The third defendants are the executors of the 2012 Will.

The pleadings

1. The plaintiffs relevantly pleaded:

   7.In August 2015 the prison authorities recorded in writing that the Deceased had suffered cognitive problems of an extent there was doubt that had testamentary capacity.

   (a)On 18 August 2015 a Casuarina Prison medical officer recorded in the prison records that the Deceased scored '12/30 (moderate cognitive impairment)' on the Montreal Cognitive Assessment (MoCA) and diagnosed the Deceased as having a moderate cognitive impairment.

   (b)Also on 18 August 2015, a Casuarina Prison medical officer recorded in the prison medical records that it was doubtful that the Deceased had testamentary capacity to effect change in his Will because he was moderately demented.

   9.The 2015 Will is an eight page typed document prepared by Greenstone Legal Pty Ltd, 15 Barron Parade Joondalup WA 6027.

   …

   (e)The gifts to the Deceased's sons, the first plaintiff and the second defendant and to the Deceased's partner, the second plaintiff differ significantly from the 2012 Will;

   (f)The 2015 will gives a higher proportion of the Deceased's assets to the second defendant, Ian Michael Attwell, than what is given in the 2012 Will to the testamentary trust of which he is trustee and primary beneficiary.

   10.On the balance of probabilities the 2015 Will is invalid as the deceased lacked testamentary capacity at the date of the 2015 Will.

   (a)the plaintiffs repeat par 7 herein;

   (b)the plaintiffs have reasonable doubts that the deceased lacked [sic] testamentary capacity from their own observations and from the medical documents.

   11.On 31 May 2017 … the Deceased executed a First Codicil to the 2015 Will ('the 2017 First Codicil') replacing the Fourth Defendant [sic] as executor of the 2015 Will.

   …

   13.The plaintiffs' claim is that the 2015 Will and the 2017 Codicil are invalid as the deceased lacked testamentary capacity to make a valid Will in September 2015 or a valid First Codicil to the 2015 Will on 31 May 2017.

   (a)the plaintiffs have reasonable doubts that the deceased had testamentary capacity from their own observations and from the medical documents.

2. The plaintiffs seek an order that the Court pronounce for the force and validity of the 2012 Will.

3. It is important to note that the only allegation advanced by the plaintiffs is lack of testamentary capacity.

4. There is no plea of undue influence by the plaintiffs.  Nevertheless, the plaintiffs' case at trial seemed to have an undercurrent of undue influence.  In the absence of any pleading to that effect, or any application to amend, the Court has treated that part of the case as irrelevant.

5. The first and second defendants seek an order that the Court pronounce for the force and validity of the 2015 Will and the 2017 Codicil.

The structure of these reasons

1. The plaintiffs filed very detailed factual submissions.  Many of the facts are not in issue.  Accordingly, these reasons largely recite the facts as set out in the plaintiffs' submissions, adding to them and commenting on them when appropriate.

The beneficiaries

1. As noted above, Wendy was Brian's de facto wife for 27 years.

2. In understanding the dispositions in Brian's will it is important to have regard to his sons' respective involvement in AD Contractors Pty Ltd (AD Contractors) (see cl 17 of the 2015 Will).

3. At age 15 Ian started working as an apprentice boilermaker at AD Contractors.  He took four years to complete the apprenticeship.  Apart from a nine‑month break to travel overseas he has worked at AD Contractors ever since (exhibit 21 [18] ‑ [21]).

4. Ian was promoted to Operations Manager in 1995.  He was about 30 at the time (exhibit 21 [28]).  In July 1996 he was appointed a co‑director (exhibit 21 [30] ‑ [31]).

5. Ian's evidence is that Phillip rarely worked for AD Contractors (exhibit 21 [22] ‑ [23]).

6. Phillip had a much lesser involvement in AD Contractors.  Phillip's evidence is that he worked full‑time at AD Contractors from 1991 to 2001 (exhibit 4 [18]).  Even on Phillip's evidence he finished working at AD Contractors in 2001.  During the time that he worked there he occupied a position that was junior to Ian (exhibit 4 [15]).  Phillip had a much lesser involvement in AD Contractors than Ian.  By 2015 Phillip had not worked at AD Contractors for at least 14 years.

Brian's estate

1. Over his lifetime Brian built up considerable assets through his earthmoving and gravel business, AD Contractors.  On his death he left a large estate which included:

   (a)Real property:

   (i)45720 South Coast Highway, Kalgan being Lot 4791 on Deposited Plan 157219 being the whole of the land comprised in Certificate of Title Volume 1189 Folio 271 (also known as the 'Museum' or 'Church Lane') (see Certificate of Title at exhibit 1, tab 105);

   (ii)48465 South Coast Highway, Marbelup being Lot 640 on Deposited Plan 302070 being the whole of the land comprised in Certificate of Title Volume 1332 Folio 756 ('Howell Road') (exhibit 1, tab 108);

   (iii)A farm at 363 Hunwick Road North, Torbay being Lot 6631 on Deposited Plan 208574 being the whole of the land comprised in Certificate of Title Volume 1384 Folio 447 ('the Farm') (exhibit 1, tab 122);

   (iv)18 Kelly Street, Orana being Lot 17 on Plan 156 being the whole of the land comprised in Certificate of Title Volume 1122 Folio 139 (exhibit 1, tab 127);

   (v)20 Kelly Street, Orana being Lot 18 on Plan 156 being the whole of the land comprised in Certificate of Title Volume 2093 Folio 779 (exhibit 1, tab 128);

   (vi)Lot 28 Bindaree Road, Cuthbert being Lot 28 on Plan 2890 being the whole of the land comprised in Certificate of Title Volume 1505 Folio 891 (exhibit 1, tab 129);

   (vii)42 Centaurus Terrace, McKail being Lot 240 on Deposited Plan 51552 being the whole of the land comprised in Certificate of Title Volume 2645 Folio 779 (exhibit 1, tab 130); and

   (viii)11 Hudson Road, Lange being Lot 29 on Diagram 71260 being the whole of the land comprised in Certificate of Title Volume 2063 Folio 424 ('Hudson Road') (exhibit 1, tab 131);

   (b)Shareholdings:

   (i)20,000 of the total 30,000 ordinary shares in AD Contractors;

   (ii)2 ordinary shares in Attwell Holdings Pty Ltd;

   (iii)2 ordinary shares in Marbellup Pty Ltd;

   (iv)2 ordinary shares in Castle Downs Pty Ltd;

   (v)600 shares in Telstra Ltd; and

   (vi)3,000 shares in St Barbara Mines Ltd;

   (c)Loan account owed by AD Contractors of $296,977;

   (d)Assets located within the Museum including machinery;

   (e)Nominal personal effects;

   (f)Bank accounts of at least $200,000;

   (g)Trust monies held by Legal Pathways of $8,136.53; and

   (h)Superannuation held in the AD Contractors Superannuation Fund.

2. Brian was also involved in a number of entities:

   (a)Until 19 May 2017, he was a director and the secretary of AD Contractors, which operates an earthmoving business and owns real property being:

   (i)Lot 27 Bindaree Road, Cuthbert (exhibit 1, tab 132);

   (ii)Lot 29 Bindaree Road, Cuthbert (exhibit 1, tab 133);

   (iii)Lot 9 Mowforth Road, Elleker;

   (iv)30 Mowforth Road, Elleker;

   (v)36 Marbelup North Road, Marbelup;

   (vi)14 Kelly Street, Orana;

   (vii)16 Kelly Street, Orana;

   (viii)27 Sand Pit Road, Robinson; and

   (ix)Lot 67 Ackley Road, Robinson;

   (b)Until his death he was:

   (i)a Trustee as well as the Appointor and Guardian of the Attwell Family Trust which owned (and continues to own) the remaining 10,000 ordinary shares in AD Contractors;

   (ii)the sole director and shareholder of Attwell Holdings Pty Ltd, the trustee of Attwell Family Property Unit Trust since August 2013 when it replaced AD Contractors;

   (iii)a director of Marbellup Pty Ltd, the trustee of the AD Contractors Superannuation Fund.  The Fund itself owned all of the units in the Attwell Family Property Unit Trust; and

   (iv)a director of Castle Downs Pty Ltd.  The other two shares in Castle Downs Pty Ltd are beneficially held by Wendy.

3. Until his death, Brian also co‑owned, with Wendy (as joint tenants) real property at:

   (a)4 Turner Street, Orana (exhibit 1, tab 102), being their home;

   (b)26 Richard Street, Milpara (exhibit 1, tab 101);

   (c)2 Narvik Street, Goode Beach (exhibit 1, tab 100); and

   (d)Lot 117 Hart View, King River (exhibit 1, tab 103).

The 2015 Will

1. The effect of the terms of the 2015 Will are as follows (exhibit 2, tab 7):

   (a)Clause 1:  Revocation clause;

   (b)Clause 2:  Interpretation;

   (c)Clause 3:  Executor - Jonathan Wagenaar of Suite 2, 30 Graham Street, Albany, the Western Australia.  With the payment clause if executor or trustee is a legal practitioner;

   (d)Clause 4:  Executors to hold estate on trust;

   (e)Clause 5:  Gift of personal effects to Wendy but if she does not survive the testator then to Ian and Phillip as tenants in common in equal shares (it includes a coin collection that has never existed);

   (f)Clause 6:  Gift of real property and shares to Wendy;

   (g)Clause 7 provided:

   7.1I give free from all duties, encumbrances and expenses, all of my right, title and interest in any shares to which I am beneficially entitled at the date of my death in AD Contractors Pty Ltd (ACN 008 738 467) ('my Shares') to my Executor to hold my Shares on trust subject to the terms of this clause 7.

   7.2It is my wish that Philip receive the following properties owned by AD Contractors Pty Ltd free from all duties and encumbrance and without any cost or expense to Philip:

   (a)the property known as Lot 29 Bindaree Road, Cuthbert, Western Australia being more particularly described as Lot 29 on Plan 2890 and being the whole of the land comprised in Certificate of Title Volume 1505 Folio 888; and

   (b)the property known as Lot 27 Bindaree Road, Cuthbert, Western Australia being more particularly described as Lot 27 on Plan 2890 and being the whole of the land comprised in Certificate of Title Volume 1513 Folio 774.

   7.3I direct my Executor to all such things, sign all such documents and document the transaction as required to ensure that Philip receives the properties referred to in clause 7.2 above.  My Executor may for that purpose, and without limiting his powers generally, use his power as shareholder of AD Contractors Pty ltd to appoint himself as a director of AD Contractors Pty Ltd.

   7.4Except as provided in clause 7.5, my Estate shall be liable for the payment of all stamp duty, capital gains tax and other costs associated with the said transfer.

   7.5If it is required by law or otherwise recommended by an accountant appointed by my Executor that consideration be paid to AD Contractors Pty Ltd for the transfer of the properties pursuant to clause 7.2, then I direct that such consideration be deducted from the share of the balance of my Estate to which Ian is entitled.

   7.6Following completion of the transfer referred to in clause 7.2, my Executor shall transfer my Shares to Ian if he shall survive me.

   7.7If in my Executor's reasonable opinion, the transfer referred to in clause 7.2 is unable to be effected as a result of corporate governance issues, law or otherwise, then I give to Philip, in lieu of the property transfers referred to in clause 7.2, such sum as is equal to the then market value of the properties referred to in clause 7.2.

   (h)Clause 8:  Attwell Family Trust - All powers and shares pass to Ian;

   (i)Clause 9:  Attwell Property Unit Trust - All powers and shares pass to Ian;

   (j)Clause 10:  AD Contractors Superannuation Fund - All superannuation entitlements to Ian;

   (k)Clause 11:  Gift of real property to Ian - the property given to Ian is set out in pars 11(a) ‑ (e);

   (l)Clause 12:  Gift of real property to Phillip;

   (m)Clause 13:  Refers to the Museum property - the Museum contents are given to the executor who has power to deal with and terminate the trust.  Upon the end of the trust the Museum contents are to be distributed to Ian and Phillip in equal shares;

   (n)Clause 14:  Distribution of balance of estate - to Ian and Phillip as tenants in common in equal shares;

   (o)Clause 15:  Substitution of grandchildren;

   (p)Clause 16:  Powers; and

   (q)Clause 17 provided:

   17.1When determining the proportion of my estate to be given to each of Ian and Phillip, I considered the financial assistance that I have given to both of my children during my lifetime and their involvement in the family business.

   17.2As Ian has been heavily involved in, and continues to be involved in the business of AD Contractors Pty Ltd I considered it appropriate that he receives that company the business and all of its assets subject to clause 7.

2. The 2015 Will was witnessed by Jonathan Stuart Wagenaar and Jade Lattimore, both solicitors.

Other documents signed on 7 September 2015

1. Additional documents signed by Brian at the same time as the 2015 Will were:

   (a)Binding Nomination for the AD Contractors Superannuation Fund in favour of Ian (exhibit 1);

   (b)Deed of Appointment for the Attwell Family Trust (exhibit 1, tab 52).  This document appointed Mr Wagenaar as Appointor and Guardian of the Attwell Family Trust in the event of Brian's death or legal incapacity;

   (c)Power of Attorney of Attwell Holdings Pty Ltd in favour of Stephen John Morgan (exhibit 1, tab 53);

   (d)Power of Attorney of Marbellup Pty Ltd in favour of Stephen John Morgan;

   (e)Costs Agreement letter from Jonathan Wagenaar & Associates to Brian (exhibit 1, tab 56).  This included a payment of $10,000.00, although it is unclear whether this relates to the 2015 Will or Mr Wagenaar's administration of Brian's estate upon his subsequent death; and

   (f)Authority & Request in favour of Jonathan Wagenaar & Associates signed by Brian (exhibit 1, tab 57).

Renunciation of executorship by Jonathan Wagenaar

1. On 15 February 2018, Jonathan Wagenaar signed a renunciation of his executorship under the 2015 Will (exhibit 1, tab 110).

The previous wills

1. Brian made at least two wills prior to 7 August 2012 - 23 August 1996 (exhibit 2, tab 1) and 22 June 1998 (exhibit 2, tab 2).  In those wills the estate was divided as follows:

   (a)Gifts to Ian of:

   (i)Lot 27 Bindaree Road;

   (ii)Lot 28 Bindaree Road;

   (iii)Lot 29 Bindaree Road;

   (iv)The Farm;

   (v)Farming machinery, equipment and livestock situated on the Farm;

   (vi)60% of Brian's shareholding in AD Contractors (at those times being 60% of the total shareholding in the company);

   (vii)In the Will dated 22 June 1998:

   (A)One‑third (1/3) of his superannuation in the AD Contractors Superannuation Fund; and

   (B)One‑third (1/3) of all cash deposits at all financial institutions; and

   (viii)One‑third (1/3) of the residuary estate;

   (b)Gifts to Phillip of:

   (i)Hudson Road;

   (ii)40% of Brian's shareholding in AD Contractors (at those times being 40% of the total shareholding in the company);

   (iii)In the Will dated 22 June 1998:

   (A)One‑third (1/3) of his superannuation in the AD Contractors Superannuation Fund; and

   (B)One‑third (1/3) of all cash deposits at all financial institutions; and

   (iv)One‑third (1/3) of the residuary estate;

   (c)Gifts to Wendy of:

   (i)All Brian's shares in St Barbara Mines Ltd;

   (ii)Lot 126 Narvik Street, Albany (at that time held in Brian's sole name);

   (iii)4 Turner Street, Orana (at that time held in Brian's sole name);

   (iv)In:

   (A)the Will dated 23 August 1996, Lot 1 Elizabeth Street, Albany; and

   (B)the Will dated 22 June 1998, 'The sale proceeds from G Attwell of Plantagenet Location 3131';

   (v)In the Will dated 22 June 1998:

   (A)One‑third (1/3) of his superannuation in the AD Contractors Superannuation Fund; and

   (B)One‑third (1/3) of all cash deposits at all financial institutions; and

   (vi)One‑third (1/3) of the residuary estate.

2. The 2012 Will included:

   (a)Gifts to a testamentary trust of which Ian was named Primary Beneficiary of:

   (i)50% of 18 Kelly Street, Orana;

   (ii)50% of 20 Kelly Street, Orana;

   (iii)42 Centaurus Terrace, McKail;

   (iv)Lot 28 Bindaree Road;

   (v)The Farm;

   (vi)Brian's share and interest in any livestock, plant or other farming assets situated at the Farm;

   (vii)50% of Brian's shareholding in AD Contractors (at that time being one‑third (1/3) of the total shareholding in the company);

   (viii)50% of any directors loan owed to Brian by AD Contractors;

   (ix)50% of the shares in any company that is the trustee of any 'Nominated Superannuation Fund'; and

   (x)One‑third (1/3) of the residuary estate;

   (b)Gifts to a testamentary trust of which Phillip was named Primary Beneficiary of:

   (i)50% of 18 Kelly Street, Orana;

   (ii)50% of 20 Kelly Street, Orana;

   (iii)Hudson Road;

   (iv)50% of Brian's shareholding in AD Contractors (at that time being one-third (1/3) of the total shareholding in the company);

   (v)50% of any directors loan owed to Brian by AD Contractors;

   (vi)50% of the shares in any company that is the trustee of any 'Nominated Superannuation Fund'; and

   (vii)One‑third (1/3) of the residuary estate;

   (c)A separate gift to Ian and Phillip in equal shares of the plant, equipment, chattels and other items situated at the Museum;

   (d) Gifts to a testamentary trust of which Wendy was named Primary Beneficiary of:

   (i)4 Turner Street, Orana (still at that time held in Brian's sole name);

   (ii)Brian's shares in Castle Downs Pty Ltd, St Barbara Mines Ltd and Telstra Ltd; and

   (iii)One‑third (1/3) of the residuary estate.

The preparation and signing of the 2012 Will

1. The 2012 Will was prepared by Mr David Moss, a solicitor.  Mr Moss had, over the years, provided legal services for Brian and AD Contractors.  Mr Moss had not acted exclusively for Brian (ts 2, 8 April 2019).  Mr Moss did not act for Brian between 2000 and 2011 (exhibit 16 [5] ‑ [6]).

2. On 28 October 2011, Brian instructed Mr Moss to prepare a new will for him.  The 2012 Will was prepared by Mr Moss after receiving instructions directly from Brian over a nine‑month time period.  They met four or five times (ts 21, 8 April 2019).

3. The 2012 Will was duly executed by Brian in accordance with the requirements of s 8 of the Wills Act 1970 (WA) in the presence of two witnesses present at the same time as Brian signed the Will.

4. In the event that the Court finds that Brian lacked testamentary capacity at the time he executed the 2015 Will and the 2017 Codicil, the parties are agreed that probate of the 2012 Will should be granted.

Other documents signed on 7 August 2012

1. Following the signing of the 2012 Will on 7 August 2012 the following documents were signed by Brian:

   (a)Binding Nomination for the AD Contractors Superannuation Fund dated 7 August 2012 (exhibit 1, tab 8);

   (b)Acknowledgement of Receipt of Binding Nomination dated 7 August 2012 (exhibit 1, tab 9);

   (c)Deed of Variation of Trust Deed for the Attwell Family Trust dated 7 August 2012 (exhibit 1, tab 10); and

   (d)Notice of Revocation of Substitute Appointor and Guardian of the Attwell Family Trust dated 7 August 2012 (exhibit 1, tab 11).

Renunciation of executorship by David Moss

1. On 14 February 2018, Mr Moss signed a renunciation of his executorship under the 2012 Will (exhibit 1, tab 109).

2. In accordance with par 2.2 of the 2012 Will the successor to Mr Moss as executor passed to the principal of David Moss and Co, Constantyn Willem Receveur.

3. The third defendants, Constantyn Willem Receveur and Stephen John Morgan, accountant, are the executors of the 2012 Will.

The change in Ian's favour

1. The table below is a comparison prepared by the plaintiffs of the distribution of Brian's estate under each of the Wills.  No issue was taken with the table.  The plaintiffs state that there are two scenarios for the 2015 Will - the first, where Lots 27 and 20 Bindaree Road are transferred from AD Contractors to Phillip; and the second, where they are not.

2. The plaintiffs submitted that:

   (a)Clause 7 of the 2015 Will contains an error in that if then it gives Phillip in lieu of the property transfers referred to in cl 7.2 such sum as equal to the then market value of the properties referred to in cl 7.2.

   (b)Clause 7 refers to AD Contractors and the shares held in that company by Brian (20,000 shares) and in cl 7.2 the properties at Lots 27 and 29 Bindaree Road, Cuthbert (registered in the name of AD Contractors).  Clause 7.2 gives Lots 27 and 29 Bindaree Road to Phillip.

   (c)Clause 7.7 says that if, in the executor's reasonable opinion (the named executor of the 2015 Will is Jonathan Wagenaar) cl 7.2 is unable to be effected, then Phillip if given in lieu of the property transfers referred to in cl 7.2 such sum as equal to the then market value of the properties referred to in cl 7.2.

   (d)The only way that Phillip can be paid under cl 7.7 is to receive a payment from the residue of the estate of which Phillip is to receive half.

   (e)Under cl 7 as drafted Phillip will be paying for half of the market value of the properties referred to in cl 7.2.

   (f)This is contrary to cl 7.2 which gave the land to Phillip 'free from all duties an encumbrance and without any cost or expense to Phillip'.

   (g)In order to effect an equal distribution cl 7.7 should have added on the end like cl 7.5 '… I direct that such consideration be deducted from the share of the balance of my Estate to which Ian is entitled'.

3. The plaintiffs raised no issue about cl 7 other than in relation to the impact it had on the relative distribution of the estate.

4. In the event that the Bindaree Road lots are not transferred to Phillip it makes no substantial difference to the overall effect of the disposition of the estate.

5. As the plaintiffs correctly submit, the 2015 Will shows marked differences in dispositions from the three earlier Wills:

Estimated entitlements at date of death	1996 Will	1998 Will	2012 Will	2015 Will v1 (Lots 27 & 29 Bindaree Road are transferred from AD Contractors to Philip)	2015 Will v2 (Lots 27 & 29 Bindaree Road are not transferred from AD Contractors to Philip)
Ian	$5,649,280.79	$5,649,280.79	$5,570,802.17	$9,427,701.99	$9,755,201.99
Philip	$4,537,587.21	$4,537,587.21	$5,235,802.17	$1,869,470.05	$1,541,970.05
Wendy	$1,207,720.03	$1,207,720.03	$587,983.70	$97,416.00	$97,416.00
$11,394,588.03	$11,394,588.04	$11,394,588.04	$11,394,588.04	$11,394,588.04

1. The values of the real properties are derived from appraisals obtained by Morgan Charter (exhibit 1, tab 94).  No issue was taken with those values.

2. Under the 2012 Will, Ian receives approximately $5,570,802.17 and Phillip receives approximately $5,235,802.17 - a difference of $335,000.

3. If Ian (as majority shareholder of AD Contractors) transfers the Bindaree Road properties owned by AD Contractors under the 2015 Will, Ian receives approximately $9,427,701.99 and Phillip $1,869,470.05 - a difference of $7,558,231.85. 

4. If Ian does not transfer the Bindaree Road properties, Ian receives approximately $9,755,201.99 and Phillip approximately $1,541,970.05 - a difference of $8,213,231.94.

5. In comparison to the 2012 Will and earlier wills, the 2015 Will is significantly in Ian's favour.  Correspondingly Phillip's share of the estate is significantly less.

6. The significance the plaintiffs draw from this change is to be found in the judgment of Macrossan SPJ in Bool v Bool:[2]

   A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation (39).

   [2] Bool v Bool [1941] St R Qd 26 (Full Court).

7. Although Wendy is disadvantaged to some extent under the 2015 Will, she benefitted significantly from survivorship as a result of her joint bank accounts held with Brian and the properties they held jointly.  She received about $1.7 million in cash (ts 215, 9 April 2019; exhibit 17) and four properties (ts 90 ‑ 91, 9 April 2019).

Ian's Family Court matter and Brian's imprisonment

1. During the time when both the 2012 Will and the 2015 Will were executed, Family Court proceedings between Ian and his ex‑wife, Michelle Attwell, were ongoing.  Part of the dispute was over what, if any, shares in AD Contractors were part of Ian Attwell's asset pool and available for distribution by the Family Court.

2. The Family Court trial commenced on 29 November 2010 but was adjourned the following day.

3. On 26 September 2012, Brian was arrested and subsequently charged with attempting to procure another to murder Michelle Attwell (exhibit 1, tab 20 [18] ‑ [19]).

4. Brian was found guilty on 29 November 2013 following a trial by jury (exhibit 1, tab 20 [4]).

5. On 28 January 2014, Brian was sentenced by Simmonds J to 8 years and 6 months in prison (exhibit 1, tab 4).

6. After Brian's imprisonment Ian continued as head of operations of AD Contractors (exhibit 21 [49]).

7. Brian was originally imprisoned at Albany Regional Prison.

8. On 18 March 2014, he was transferred to Casuarina Prison (exhibit 2, tab 13, page 406).

9. On 3 December 2014, Brian's appeal against sentence was heard (exhibit 2, tab 20).

10. On 30 April 2015, Brian's appeal was dismissed (exhibit 1, tab 20).

11. Brian's criminal law solicitor at the time of trial, and the appeal, was Jonathan Wagenaar of Jonathan Wagenaar & Associates of Albany.

12. On 27 July 2015, the Family Court trial was reconvened by her Honour Justice Crisford (exhibit 1, tab 50).

13. On 30 July 2015, her Honour Justice Crisford completed hearing the family law case and reserved her decision (exhibit 1, tab 50).

14. On Friday, 4 September 2015, judgment was delivered by her Honour Justice Crisford (exhibit 1).

15. In the judgment Crisford J stated:

    …

    [104]... The current Will is dated 7 August 2012 and reflects Brian's sons each receiving parcels of real estate; and a half-share in ADC [AD Contractors] and half of the money owed by ADC … Mr Gilmore says an ongoing concern methodology the value of AD Contractors is in the range of $5,126,000 to $6,402,000.

    [105]The current Will, of 2012, appears to reflect Brian's present intentions.  It reflects the manner in which Brian has treated his sons.  It also reflects the role that the husband has had in ADC in the past and at the present.

16. As is noted below the plaintiffs sought to attach some significance to Crisford J's finding.

Legal principles

1. The legal principles relating to testamentary capacity are conveniently set out in the judgment of Kunc J in Ryan v Dalton; Estate of Ryan[3] (Ryan) as follows:

   [3] Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007.

   There was no dispute between the parties about the applicable legal principles. I summarised them in my judgment in Philips v Philips [2017] NSWSC 280, 129 ‑ 134:

   '129The classic expression of the test for testamentary capacity was stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

   "It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

   130The Court's attention was then drawn to the judgment of Meagher JA (with whom Basten JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285:

   "44.The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a 'free and capable' testator:  Barry v Butlin at 482; 1092; Fulton v Andrew[1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657 ‑ 658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528.

   45.If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent.  That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity.  Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of 'sound disposing mind':  Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97 ‑ 98; [1857] EngR 738; 140 ER 671 at 675 ‑ 676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.

   …

   48.In this context the statements prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44].  They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995."

   131The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275:

   "246It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, 'the mental power may be reduced below the ordinary standard' provided the deceased retains 'sufficient intelligence to understand and appreciate the testamentary act in its different bearings'.

   247In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows:

   '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.'

   248In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will.  An appreciation of the legal effect of every clause in a will is unnecessary.  However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it:  Nicholson v Knaggs at [97].

   249Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will:  Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295.

   250In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries:  Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 571, per Isaacs J.

   251I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said:

   'A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.'

   252A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it.  The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.

   253As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]:

   'Mr Willmott referred in this context to the three 'R's' adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason:

   He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them.

   Mr Willmott emphasised that his Honour went on to say:

   "It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." '

   254In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2004 Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Ms Zlatevska prior to that time):  Smith v Tebbitt (1867) L.R. 1 P&D 398, at 436 ‑ 437. Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3P&D 64 at 67."

   132Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that "[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this". To that I would respectfully add his Honour's observations at [54] that:

   "In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses."

   133In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased's memory. That is not this case.

   134Finally, I have also relied upon Lindsay J's recent summary in Estate Stojic, Deceased [2017] NSWSC 168:

   "84.The concepts of 'testamentary capacity' (classically explained by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565) and 'knowledge and approval' are distinct. A testator might have the capacity (ability) to understand but not, in fact, understand a Will and its effect. Nevertheless, an application of each concept to particular facts generally draws upon a common factual matrix because a court's determination must be made on the whole of the available evidence. That is so, particularly, where, as in these proceedings, the parties have not adduced expert medical evidence on the specific question of 'capacity'.

   85.In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way:  King v Hudson [2009] NSWSC 1013 at [50] ‑ [51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53] ‑ [70]. Decisions about 'testamentary capacity' and 'knowledge and approval' are necessarily fact‑sensitive.

   86.The ultimate question, on the facts of the particular case, is whether the Court is satisfied that a particular testamentary instrument represents the last Will of a free and capable testator:  Woodley‑Page v Symons (1987) 217 ALR 25 at 35. The proponents of a Will bear the onus of proving that fact on the balance of probabilities, taking into account the nature of the case and the gravity of matters alleged: Evidence Act 1995 NSW, section 140; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. The effect of an initial doubt about the validity of a Will is to require a vigilant examination of the whole of the evidence which the parties place before the Court; that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last Will of a free and capable testator: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 452 ‑ 453." '

1. In Veall v Veall[4] (Veall), Santamaria JA set out the following passages explaining the shifting evidential burdens of proof in testamentary capacity and knowledge and approval of a will as follows:

   [4] Veall v Veall [2004] VSCA 204 [166] ‑ [171].

   Capacity, knowledge and approval

   Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder.  The propounder must prove that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution.  By contrast, where fraud or undue influence is alleged, the onus of proof lies on the party alleging it.

   In Kantor v Vosahlo, Buchanan and Philips JJA (with whom Ormiston JA agreed) said:

   '… a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.

   The 'relevant time' is the time at which the will is executed.  The ability of a testator to make a will may fluctuate.  A testator who is aged and infirm may suffer from dementia or some other form of impairment.  But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.'

   If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity.  The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent.  If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity:  that is that the testator was of 'sound and disposing mind'.

   Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will.  As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them.  The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.

   The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof.  The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder.  But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will's legitimacy.

   In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate.  A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face.  The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator.  In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:

   (1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

   (2)This onus means the burden of establishing the issue.  It continues during the whole case and must be determined upon the balance of the whole evidence.

   (3)The proponent's duty is, in the first place, discharged by establishing a prima facie case.

The relative weight of the evidence

1. As a general comment it should be noted that Brian's mental state fluctuated significantly over the period between early 2015 and his death on 13 July 2017.

2. During the relevant period Brian was an inmate at Casuarina Prison.

3. The records relating to Brian's mental state comprise, amongst others, the 'Encounters Notes' kept by the staff at Casuarina Prison (exhibit 2).  These notes are a contemporaneous record of Brian's physical and mental condition made by persons with no interest in the outcome of these proceedings.

4. In the course of the evidence various lay witnesses led evidence as to Brian's physical and mental state when they visited him in prison.  None of those witnesses kept a note of their visits.  In effect, they were trying to recall events from two to four years ago simply on the basis of their memory.  The Court does not believe that any of those witnesses were doing other than trying to give an honest account of their visits.  Whilst their evidence may be of some value as a general indicator of Brian's health they cannot compare to the weight of the Encounters Notes.

5. Whenever there is a discrepancy between the lay witnesses and the Encounters Notes the Court has preferred the Encounters Notes.  Any demonstrated discrepancy between the lay witnesses and the Encounters Notes is also relevant to assessing the overall reliability of the evidence of that lay witness.

6. In that respect the observations in the Encounters Notes from staff who observed Brian on a daily basis are of particular significance (despite the comments of Dr Arenson below).

7. It is important to bear in mind that:[5]

   The evidence of those with experience in dealing with elderly people, and who have personally observed the testator at and around the relevant time, is of considerable significance, often more than the opinions of others, medically qualified or not, who have not personally observed the testator at relevant times (Ridge v Rowden, 50 (citing Kirby P in Easter v Griffith, NSWCA, unreported, 7 June 1995)).

   [5] Tobin v Ezekiel [2011] NSWSC 81 [32] (Tobin).

8. It is also important to bear in mind what Vickery J stated in Nicholson v Knaggs:[6]

   The parties called expert neuro‑psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case.  In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first‑hand.  The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents.

   Consistently with the approach of Judd J in Foster & Ors v Mellor [2008] VSC 350 [145], I respectfully adopt what was said by Windeyer J in Revie v Druitt [2005] NSWSC 902 [34]:

   'As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.'

   In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity.  In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times.  The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils.  The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.

   [6] Nicholson v Knaggs [2009] VSC 64 [39] ‑ [41].

9. The evidence of those who took instructions for and were present at the signing of the 2015 Will and the 2017 Codicil will be of particular significance.  It is also important to note that their evidence was, in effect, unchallenged.

Is each of the 2015 Will and the 2017 Codicil rational on its face?

1. The parties agreed that the 2015 Will and the 2017 Codicil were each rational on their face and had been duly executed.

2. In accordance with the principles set out above, a rebuttable presumption arose that Brian had testamentary capacity when executing the 2015 Will and the 2017 Codicil.[7]

Is there a doubt in relation to the 2015 Will and/or the 2017 Codicil?

[7] Veall [168].

1. Whilst the legal burden of proving the 2015 Will and the 2017 Codicil remains with the first and second defendants, a presumption having arisen that Brian had testamentary capacity in relation to the 2015 Will and the 2017 Codicil, the evidentiary burden shifts to the plaintiffs to raise a suspicion, ie. a doubt, that Brian was not mentally competent (Veall).  This requires a close analysis of the documentary evidence and the evidence given by the witnesses.

Brian's health during his imprisonment

1. The plaintiffs submitted that the Encounters Notes (exhibit 2) show:

   (a)Brian showed decreasing capability to perform Activities of Daily Living [ADL's] from 2014 onwards.

   See, for example, 24 March 2014 'Assistance required with ADLs' Exhibit 2, tab 13 at page 403, 13 March 2015 'Doesn't appear to be showering in the morning.  Requests shower, but has come out for the last 2 days dry and odorous. Smells strongly of sweat and urine.  Carers advised may need more supervision with ADL's and some continence management, ie continence pads overnight' 216 to 217, 20 May 2015 'Pt is declining with age since incarceration … requires full assistance with ADLs now … remains in the infirmary'.  178, 30 May 2015 'Pt showered with full assistance this am strong smell of urine noted to clothing' 72, 22 June 2015 'Showered by assistant - author advised Attwell that as a trial he will be showered at 0700 prior to breakfast on week days'.  58, 10 July 2015 'Unable to manage urinal while in bed - ends up spilling it over himself.  Managing to walk a bit with the walking frame but requires constant supervision.  When he goes to the toilet he is passing urine but misses the toilet - urine all over his clothes, in his shoes and on the floor.  Unit laundry man has washed his shoes and his boots are on his feet - refuses to remove footwear off even in bed.  Attwell remains unaware that he is missing the toilet and is causing a hazard both for himself and his cell mate as the toilet floor is getting wet'.  146 to 148, 19 July 2015 'patient 2 x assist by staff to stand and transfer from bed to chair, required full assistance with all stages of the showering process, incontinent of urine +++, using incontinence pads day and night now, Patient unable to sequence the steps of the showering process, relying on the carer at all times to prompt and assist with each activity'140 to 141, 2 August 2015 'showered with full assistance, mobilizing with zimmer frame' 133, 4 August 2015 'Patient redressed by carer, unable to assist at all with any part of the procedure.  Patient either 3 x person assist for transfer from bed to chair/chair to chair or full hoist sling' 132, 5 August 2015 'deteriorating ADL last 2 days (although patient denies this flatly)' 131, 'acute deterioration in ADLs in the last 4 days …' 128 to 129;

   (The Court has inserted the relevant extracts from the Encounters Notes identified in this part of the plaintiffs' submissions.)

   (b)A narrative of worsening condition throughout 2015.

   See, for example, exhibit 2, tab 13 at pages 242 to 243 (19 January 2015), 251 to 252 (12 February 2015), 216 to 217 (13 March 2015), 202 to 203 (11 and 12 April 2015); exhibit 2, tab 13 at pages 200 to 201 (13 April 2015), 197 (18 April 2015), 180 (18 May 2015), 178 (20 May 2015), 173 to 174 (28 May 2015); 169 to 170 (3 June 2015), 163 to 164 (12 June 2015), 161 to 162 (15 June 2015), 161 (16 June 2015), 159 (19 June 2015), 154 to 155 (29 June 2015), 153  to 154 (30 June 2015), 146 to 148 (10 July 2015), 145 (11 July 2015), 144 (12 July 2015), 143 (14 July 2015), 141 (18 July 2015), 135 (29 July 2015), 131 (5 August 2015), 134 (6 August 2015), 128 to 129 (7 August 2015); and

   (c)Incontinence.

   See, for example, exhibit 2, tab 13 at pages 216 to 217 (13 March 2015), 215 (15 March 2015), 200 to 201 (13 April 2015), 190 (29 April 2015); 178 (20 May 2015), 174 (28 May 2015), 172 (30 May 2015), 171 (1 June 2015), 168 (5 June 2015), 166 (9 June 2015), 161 to 162 (15 June 2015) 159 to 160 (18 June 2015), 158 to 159 (20 June 2015), 158 (22 June 2015), 155 to 156 (27 June 2015), 154 to 155 (29 June 2015), 151 to 152 (2 July 2015), 150 to 151 (4 July 2015), 150 (5 July 2015), 146 to 148  (10 July 2015), 140 to 141 (19 July 2015), 140 (20 July 2015),  139 to 140 (21 July 2015), 137 (25 July 2015), 133 (2 August 2015), 132 (4 August 2015).

2. It is generally correct to submit, as the plaintiffs do, that Brian experienced a decline in his ADLs, that his condition declined and that he became progressively more incontinent over the course of his imprisonment.

3. However, the plaintiffs' broad submissions need to be treated with caution.  Brian's condition did not decline in a linear fashion.  For example, his ADLs declined and improved from time to time.  The Encounters Notes for 17 December 2015 record 'attending to ADLs with minimum assistance (exhibit 2, page 420) (see also 19 January 2016, exhibit 2, page 523).  Similarly, his incontinence varied from time to time.

4. Brian was originally reluctant to acknowledge his incontinence and the measures necessary to control it (see pages of Encounters Notes, exhibit 2 referred to above).  It would appear that by about mid‑August 2016 his issues with his incontinence aids had resolved.  There are no further records of his refusing to use incontinence aids.

5. Illnesses per se, even serious illnesses, or old age are not of themselves sufficient to demonstrate a lack of capacity:  Bailey v Bailey.[8]  As Kirby J said in Re Griffiths, 'many wills are made by people of advanced years.  In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent. … But these are not ordinarily sufficient … to disentitle the testator of the right to dispose of his or her property by will' (cited in Ryan [131]).

   [8] Bailey v Bailey (1924) 34 CLR 558.

6. An assessment of Brian's testamentary capacity requires a much more granular and careful analysis of his actual condition at and around the time that he made the 2015 Will and the 2017 Codicil rather than relying on broad submissions about his condition over the term of his imprisonment.

7. A granular analysis is required because, even if there is incapacity, a lucid interval will permit a testator to make a valid will:  Perpetual Executors Trustees & Agency Co (WA) Ltd v Deacon.[9]  The fact that a testator may not have been competent to make a will at one point in time, does not mean he is always unable to make a will.  This is so because the time to judge capacity is when the will is executed.  However, if instructions have been given when the testator is of sound mind and the will is later executed when the testator knows it to be a will, it should be admitted to probate:  Bailey v Bailey.[10]

   [9] Perpetual Executors Trustees & Agency Co (WA) Ltd v Deacon (1936) 38 WALR 31.

   [10] Bailey v Bailey [572] (Issacs J); Laws of Australia [36.1.810].

8. As appears from the records below, Brian had sustained periods of lucidity and relatively short periods of incapacity.  For example, the Court notes that the records indicate that Brian suffered from delirium in early August 2015 but that he had substantially recovered from it by mid to late August 2015.  The details are set out in the reasons below.

The records

1. The Encounters Notes for 2015 commence on 1 January at exhibit 2 page 253.

2. The Encounters Notes record at 10.46 am on 19 January 2015 that Brian was reviewed by Dr O'Gorman (exhibit 2, page 243).  On that occasion Brian refused treatment for investigation:

   Discussed need for further investigation by way of reference to gastro with a view to OGD and colonoscopy.  Outright refuses to go for appointment - any investigations even though he realises we may be missing a diagnosis/more sinister problem e.g. cancer which could shorten his lifespan etc.

   …

   Not clear what patient's reasoning is for any of the above advice from not likely going to hospital or under anaesthetic.  He is aware of the repercussions to his health through failure to investigate and treat the above issues and in this respect has capacity to make these decisions.

3. Dr O'Gorman's notes are evidence that in early 2015 Brian had capacity to make decisions about his health care.  His decision to refuse treatment was accepted by Dr O'Gorman.

4. The test for testamentary capacity is different to the test for informed consent.  Nevertheless, the fact that the doctor accepted Brian's decision to refuse treatment indicates that the doctor accepted that Brian was capable of making decisions about his own health care.

5. On 12 February 2015, Brian again refused medical treatment (exhibit 2, tab 13, pages 231 ‑ 232).  The Encounters Notes record:

   12/02/2015 10:46 am, Dr Princewill Chuka MBBS FRACGP, Medical Officer

   (review appointment)

   Subjective:

   Booked for multiple issues, refusing to go to Hospital for appointment.

   Patient presented reporting no problems today, except that he wants appointment to see the podiatrist.

   Says he was told appointment has been made for him.

   Asked about referral to hospital, he says the author should not boter[sic] about that, that he wont[sic] want to go to the Hospital for any reason, Informed that he has low Iron levels, and that needs investigated to ensure that he does not have serious concerns as cancers.

   He says the food here is horrible, and that if he is home eating alright the Iron levels would be okay.  He says he was better off with his food while Albany but has to come up here because of balance issues with him.

   He also decline proposal to sse[sic] the vascular surgeons as proposed to him by Dr O'Gorman.  He stated that he has had the pains in his foot for 20 years.  I have been asking them to give me circulation booster which he has at home or at work, but the[sic] was asked to get a certificate from the doctor to have it.  If I could have that I will be okay.  What point to be shackled to hospital and you come back bleeding? He querried[sic].

   He also turned down the offer by the writer to have blood test for Hba1c, FBR, ACR, UECR, says he does not want any investigations for anything.

   Objective:

   Stable clinically, walks recument[sic] on walker, Blood Pressure:  110/70 mmHg

   Assessment:
   Declines Appointments

   Does not want blood Investigations

   Plan:

   Author to find out more about Circulation Booster- No promises he will have have it

6. There is no suggestion in Dr Chuka's notes that Brian lacked the mental capacity to refuse treatment.  Brian's refusal is consistent with his response to Dr O'Gorman on 19 January 2015.

7. On 4 April 2015, Brian wrote to Phillip about Phillip's business (exhibit 13, page 86).  The letter is rational (ts 39 ‑ 40, 8 April 2019).  There is nothing to suggest that Brian lacked mental capacity at this time.

8. On 11 April 2015, Brian suffered a fall.  He went to hospital the following day (exhibit 2, tab 13, pages 202 ‑ 203; exhibit 2, tabs 66, 67, 68; exhibit 2, tab 77).

9. The Encounters Notes record:

   12/04/2015 8:27 am, Melanie Shahien CN, Clinical Nurse (blood pressure problem)

   Assessment
   Pulse Rate:  39 units
   Blood Pressure:  85/40 mmHg
   Respiratory Rate:  16 min↑-1 normal rate and rhythm
   patient appears frail and smelling of urine this morning
   given ensure x1, water 250mls.

   placed in wheelchair for safety

   Patient fell to floor last night, Nurse observed nil obvious injury, patient landed on his buttocks and assisted back to bed.

   last seen by MO 12/02/15 Patient reviewed as he has been refusing to go to hospital due to shakeling[sic] which caused bleeding

   Patient taken minimal diet as he will not eat prison food.  Patient has finally agreed to go to hospital for investigation and further management.

1. The reference to 'shakeling' should be 'shackling'.  The shackles caused bleeding, presumably due to rubbing, on Brian's skin (see for example, 11.8.15: 'sent back [from FSH] with shackle injuries' (exhibit 2, page 126)).

2. On 18 May 2015, Brian fell again (exhibit 2, page 180).

3. The Encounters Notes for 20 May 2015 record:

   20/05/2015 7:49 pm, Elizabeth Smith EN, Registered Nurse

   Objective:

   care plan

   Assessment:

   care plan reviewed and updated
   pt is declining with age since incarceration
   Is more accepting of his incontinence
   Requires full assistance with ADL's now
   Is still awaiting outcome of appeal

   remains in the infirmary

4. On 28 May 2015 (after suffering a fall on the night of 27 May 2015 - exhibit 2, tab 13, pages 173 ‑ 174), Brian again refused medical treatment (exhibit 2, tabs 81, 82, 80, 83).  He signed a release from medical liability.  This indicates that the staff thought he had the mental capacity to make such a decision (exhibit 2, page 173).

5. On 10 June 2015, Brian wrote to Wendy (exhibit 13, page 88).  The letter is rational.

6. On 12 June 2015, Brian was taken to FSH (exhibit 2, tab 85).  He later discharged himself against medical advice (exhibit 2, tab 96; exhibit 2, tab 13, pages 163 ‑ 164).

7. The Encounters Notes record:

   12/06/2015 9:49 am, Hayley White CN, Registered Nurse

   (Transfer to Acute Facility)

   Subjective:

   pt reviewed by Dr Chuka

   Objective:

   to be sent to hospital via ambulance

   Assessment:

   hospital and ambulance conctacted[sic]

   paperwork enclosed

   Plan:

   to go via priority 3

   12/06/2015 11:10 AM, Dr Princewill Chuka MBBS FRACGP, Medical Officer

   (review appointment)

   Subjective:

   Added to the list to bee[sic] seen today by the nurse.  Worried about patient's low blood pressure and that the patient has been having difficulty moving.
   Seen iin[sic] INF in his room, patient stated that he feels alright and there is no problems with him.
   All the nurses present noted he has not been himself, unable to ambulate as he normal[sic] does, like presenting for his medication, food etc.

   Previously patient patient[sic] has had some falls with mild laceration at the vertex of the head, which he refused to go to Hospital when author attended'

   Objective:

   Mr Brian was quite oriented in person, place and time.

   BP lying down was 130/70mmHg, sitting Blood Pressure:  90/50 mmHg, patient had difficulty standing to take some steps

   Assessment:

   Low blood pressure (Orthostatic)

   Plan:

   Refer to Hospital for further assessment via Ambulance

8. Brian refused treatment.  His discharge summary for FSH (exhibit 2, page 1055) noted:

   Patient wished to d/c at 15.30 against medical advice, demonstrates capacity as witnessed by RN.  Orientated to time, place and person, able to relay risks explained back to me.

9. Once again, the fact that the doctor accepted Brian's decision to refuse treatment indicates that the doctor accepted that Brian was capable of making decisions about his own health care.  Further, Brian was able to explain the risks to the doctor.

10. The Encounters Notes for 12 June 2015 (exhibit 2, page 163) record:

    12/06/2015 6:00 pm, Hayley White CN, Registered Nurse

    (post‑hospital return)

    Subjective:

    return from hospital

    Objective:

    pt has arrived in wheelchair after refusing to be treated at FSH

    pt informs author that the hospital wanted to admit him and treat with with[sic] a drip with 'some rubbish in it'

    pt proceeded to inform author that he was not having any of that #@$% put in him, they can shove it .. 'I signed a waiver'

    pt was not happy at all about being sent to to[sic] hospital.  Wanted to get up and walk with zimmer.  Advised to wait until staff were with as increased risk of falling

    nil paperwork arrived back with pt therefore unsure of what has occurred at the hospital other than bloods being taken.  This was varified[sic] by officers who attended with pt

    Brian was issued his medication, he declined an evening meal as he had eaten at the hospital

    Assessment:
    bp on return was approx. 80/60 via m annual
    pt alert, orientated, Glasgow Coma Scale:  15
    wanting to talk on the phone to someone he calls daily

    wheeled over to the phone to make call then settled into cell for the night.

    Plan:

    brian[sic] to be monitored - high falls risk of reoffending

    Advised to use bottle during the night, but declined this also.

11. Despite low blood pressure and difficulty moving, Brian remained alert and orientated upon his return from hospital.

12. On 18 June 2015, Brian wrote to Phillip about his business (exhibit 13, page 87).  The letter is rational (ts 41 ‑ 42, 8 April 2019).

13. On 19 June 2015, Brian suffered a further fall (exhibit 2, tab 13, page 159).  It is notable that there is very little in the Encounters Notes in 2015 up to this point that records any issues with Brian's mental capacity.  Brian's correspondence during this period was rational.

Brian's instructions to prepare a new will

1. On 24 June 2015, Jonathan Wagenaar met with Brian at Casuarina Prison to discuss a potential High Court appeal.  His notes appear at exhibit 2, pages 33 – 35, as follows:

   Visited Brian in Casuarina Prison to discuss potential High Court Appeal.

   Discussed Memorandum of Advice from Tim Game SC at length.

   Based on Senior Counsel's advice I informed Brian that there were no reasonable prospects of success to a Special Leave Application to the High Court.

   Brian appeared unimpressed and said 'Well that's pretty useless then.  So there is nothing else I can do?'

   I told Brian that he is always entitled to seek further advice from other Counsel but that in my view it would be a fruitless exercise to pursue further opinions from Counsel as the end result is likely to be the same.

   Brian said 'Well looks like I'm going to be here for a while then.  Can I go back to Albany Prison?'

   Told Brian that Principal Officer Albany told me in Albany Prison when you were on remand that they didn't have the case facilities in Albany to help and care for you physically.

   Brian 'Why don't they fix it up then?'

   Me 'I don't know Brian.'

   Brian then went on to say that if he was staying in Casuarina he wanted to sort out his affairs.

   I asked Brian what he meant.

   Brian 'I've got no idea what's going on AD's.  Ian's running this show.'

   Brian 'Ian told me work is slowing down, but we are getting closer to winter.'

   Brian then said that Ian had suggested on a number of occasions that I should update my Will to protect AD's.  Brian 'You know make sure Ian's got the assets to protect the Company AD's'.

   Brian asked if his will can be changed.

   Told Brian Will can be changed but I don't want to draft his new Will.

   Too complex and I would prefer someone else drafted it.

   Brian said 'Do you know anyone?'

   Told Brian I have a Colleague in Perth who is very capable who could help - Jade Lattimore.

   Brian 'Righto can you have a chat with her see if she can help?'

   Me 'Yes I'll give her a call soon.'

   Brian 'No rush.'

   'Can you stay involved - I don't know this sheila.'

   Me 'Yes Brian I'll get Jade to send out what you want and I can still stay involved.'

   Brian 'Righto'.

2. Jonathan Wagenaar had attended at Casuarina Prison to discuss the prospect of a High Court special leave application.

3. Brian's reaction to Tim Game's advice is entirely logical and very much as one would expect.

4. Brian's response to the prospect of having to serve his full term is again logical.  He enquires about going back to Albany to serve the balance of his term.

5. Having been told that, in effect, he would have to stay in Casuarina, Brian then states that he wanted 'to sort out his affairs'.  Again, that is entirely logical.

6. Brian queries whether his will can be changed.  The suggestion to change his will comes from Brian, not Jonathan Wagenaar.

7. The plaintiffs submitted that Brian moving away from his long‑term solicitor, David Moss (who was familiar with his complex affairs) to trust Jonathan Wagenaar in regard to his personal affairs demonstrated a decline in Brian's mental ability to make sound judgments and that Brian's dementia had increased to a level where it was affecting his ability to make sound decisions and judgments.

8. The Court notes that Brian had previously had a long break (between 2000 and 2011) from using David Moss as his solicitor.  Brian clearly trusted Jonathan Wagenaar.  Brian wanted him to be involved even though Jonathan Wagenaar suggested that another solicitor draft the will.  There is no basis for concluding that engaging Jonathan Wagenaar demonstrated a decline in Brian's ability to make sound decisions and judgments.

9. There is nothing in Jonathan Wagenaar's notes of 24 June 2015 that indicate that Brian's mental capacity was impaired at that time.  The notes are consistent with Brian continuing to think rationally.

10. The plaintiffs submitted that Ian was aware of the 2015 Will.  Ian's evidence was that he was not aware of Brian making the 2015 Will (exhibit 21 par 66; ts 281 ‑ 282, 10 April 2019).  Although Ian suggested Brian should update his will to protect AD Contractors, the Court does not accept that Ian was aware of the 2015 Will until after it was executed.  The Court accepts that Ian was a reliable witness.  There is a difference between suggesting a change, whenever that change might have been suggested, and causing and/or knowing that that suggestion had been carried into effect.

11. The Encounters Notes for 30 June 2015 record:

    30/06/2015 10:15 am, Claire Ann CN, Nurse

    (memory problem)

    Subjective:

    Objective:

    concerns raised by carer

    Assessment:

    1.painful hernia in scrotum

    2.forgetful of daily routine with care staff, also forgetful of carers[sic] name, this is unusual for this man discussed with OP1 who will discuss with MO

    30/06/2015 11:02 am, Dr Richard Wee MD. Medical Officer

    present issue:  see 30 june[sic] nursing entry -- increasing forgetfulness
    denies depression

    Objective:

    alert and cheerful, appropriate in his responses
    not cachetic[sic]
    good eye contact
    compos mentis

    speech clear, not dysarthric or slurred

12. Although the nurse recorded some forgetfulness problems at 10.15 am, when checked by Dr Wee at 11.02 am, Brian was lucid:  'alert and cheerful, appropriate in his responses'.

13. On 10 July 2015, Brian suffered a fall (exhibit 2, tab 13, pages 146 ‑ 148).

14. On 13 July 2015, Brian refused to attend a medical appointment at FSH (exhibit 2, tab 98; exhibit 2, tab 13, page 143).

15. From 14 July 2015 Brian began to exhibit problems with cognition.

16. On 14 July 2015, the Encounters Notes record (exhibit 2, page 143):  'conginition [sic] appears to be losing short term memory - familiar names he would normally remember he is forgetting, pleasant, polite and amicable with nursing staff'.

17. The Encounters Notes for 19 July 2015 record:

    19/07/2015 9:13 am, Melanie Shahien CN, Clinical Nurse

    Assessment:

    Patient 2 x assist by staff to stand and transfer from bed to chair.

    required full assistance with all stages of the showering process.

    Incontinent of urine +++, using incontinence pads day and night now.

    Patient unable to sequence the step of the showering process, relying on the carer at all times to prompt and assist with each activity.

18. On 29 July 2015, Brian suffered a fall (exhibit 2, tab 13, page 135).  He was noted as being 'responsive alert on our arrival'.

19. The explanation for Brian's problems with cognition appear to arise from a urinary tract infection (UTI) diagnosed on 5 August 2015 (exhibit 2, page 131).

20. On 7 August 2015, Brain was diagnosed with 'early mild delirium'.  Dr Wee's notes of 7 August 2015 record:

    Kleb UTI
    D3 augmentin df
    refused bloods
    appetite sig diminished
    acute deterioration in ADLs in the last 4 days - requires 2 ‑ 3 person assist (premorbid:  independent with walking frame)
    continues to deny feeling unwell
    cognition - not as alert, more sleepy

    lower abdo discomfort - this is determined on palpation, patient however denies but winces on examination

    Objective:

    less reactive than usual
    able to recognise the author but not the nurses
    did not know name of Prime Minister
    blood Pressure 165/95 mmHg (usually low) Pulse Rate:  105 units glucose test:  22.4 mmol/l
    H/L clear

    tender lower abd / inguinal hernia

    Assessment:

    imp:  UTI sepsis - early mild delirium

    :  uncontrolled DM

    Plan:

    refer ED - ambo

21. On 7 August 2015, Brian was admitted to FSH suffering a UTI and sepsis.  Brian's record on admission states 'cognition - not as alert - more sleepy' (exhibit 2, page 1064).

22. During this admission, a CT scan was conducted on 7 August 2015 to determine whether Brian was suffering from cognitive decline.  The clinical question to be answered was:  '?intercranial pathology as cause cognitive decline'.  The imaging report also noted 'UTI sepsis' (exhibit 2, page 1095).

23. The results of this CT scan were examined by Dr Matthew Brookes on 7 August 2015, who recorded no intracranial haemorrhage and no features to indicate intercranial space occupying lesions.  He noted bilateral generalised cerebral atrophy in keeping with patient age (exhibit 2, page 835).

24. The Encounters Notes from 8 August (exhibit 2, page 129) record:

    09/08/2015 1:50 pm, Heather Darley CN, Nurse

    (hospital inpatient update)

    Assessment:

    Nurse coordinator states he is alert now.

25. Brian returned to Casuarina on 11 August 2015.

26. The Encounters Notes from 11 August 2015 (exhibit 2, page 127) record:

    11/08/2015 5:24 pm, Melanie Shahien CN, Clinical Nurse

    Assessment:

    Patient returned from hospital at 1700hrs, nil visual improvement in patients condition

    Patient lethargic and weaker than prior admission to FSH

27. Dr Fitzclarence's response at 6.22 pm on 11 August 2015 includes 'Mo [Medical Officer] review first thing in am.  Any deterioration overnight please send straight back to FSH.  Will need formal cognitive assessment as soon as over delirium' (exhibit 2, tab 145).

28. The Encounters Notes record (exhibit 2, page 124):

    11/08/2015 9.34 pm

    Pt has answered questions appropriately, however he is less verbal than usual and appears exhausted

29. The Encounters Notes (exhibit 2, page 125) further record:

    12/08/2015 12:30 pm, Dr Jose Omotoso MBBS FWACS, Medical Officer

    (age care assessment)

    Subjective:

    Seen at Infirmary.
    Told would like to change his Will a Mental State assessment for Testamental capacity required by his lawyer.

    Patient has co‑morbidities - Renal failure, BPH, Diabetes mellitus, cataract and hypertension

    Objective:

    Met on his bed with nursing staff attending
    Fully aware of his environment and well orientated in place and time.

    Recognises writer with a little help.

    MMSE - 27/30

    Assessment:

    I can confirm that Brian is free on any delusions

    Assessment of TC depends on the complexity of decision to be taken.

    Plan:

    certificate given with above caution

30. Dr Omotoso said in his witness statement that the score should have been 26/30 (exhibit 15 [16] ‑ [18]).

31. The medical experts agreed that 'with respect to the brief cognitive screening instruments administered to Mr Attwell in 2015 and 2016 there is insufficient evidence to evaluate Mr Attwell's level and judgment and insight from the findings obtained using these measures' (exhibit 14, page 3).  In cross‑examination Dr Arenson stated 'none of the tests that Mr Attwell had to assess his cognitive capacity at this point provided conclusive evidence' (ts 158, 9 April 2019).  Dr Arenson also agreed that any screening test performed while Brian had delirium would not have allowed anyone to draw any long term conclusions about his capacity.  He also agreed that the effects of a developing, but unmanifested, UTI might have some impact on the capacity to deal with screening tests (ts 158, 9 April 2019).

32. On 12 August 2015, Dr O'Gorman conducted a review appointment post‑hospital and gave Brian an Abbreviated Mental tests/Hodgkinson's Test (AMT).  Brian scored 6.5/10 (exhibit 2, tab 162).  Dr O'Gorman's entry in the Encounters Notes (exhibit 2, tab 13, pages 123 ‑ 124) included:

    Principal diagnosis of UTI with delirium and decrease conscious level … Discharge summary noted … Prior to admission patient noted to have decreased ADLs, requiring frequent assists, and increased fatigue.  … CT Head - nil acute but generalised small vessel disease. …  Patient seen in Infirmary with [Nurse] Alesha Turpin.  Was lying upright in a portable bed in common area, alert and observing TV.  Moved to side room. … Abbreviated MMSE performed.  …  Overall score of 6.5 out of 10 - half-mark as only managed to count backward from 20-1 as far as low teens.

    Observations as per Alesha Turpins entry below:

    BP normotensive - I advise withholding ACEi.  Alert - oriented to place in person but not time.  Aware of recent admission to hospital.  States feels well. No pain or discomfort … Assessment: Recovering from UTI and acute chronic renal failure.

33. On 12 August 2015, Jonathan Wagenaar sent an email to Health Communications attaching an authority to release medical information for Brian (exhibit 2, tab 159).

34. Although the plaintiffs sought to make much of Jonathan Wagenaar's attempts to obtain Brian's medical records, the Court does not see those attempts as in any way sinister.  Jonathan Wagenaar made a number of efforts to obtain those medical records but the bureaucratic hurdles seem to have defeated him.  There is a certain incongruity in the plaintiffs' criticism of his attempts to obtain the records and his failure to require sufficient medical information when taking instructions for and witnessing the 2015 Will.

35. On 13 August 2015 at 1.57 pm, the Encounters Notes stated:  'Was not orientated to time/day or simple memory - lunch, thought he walked this a.m. etc' (exhibit 2, tab 13, page 122).

36. From 14 August 2015 the Encounters Notes record a recovery in Brian's mental capacity.  Brian's Encounters Notes (exhibit 2, page 121) recorded:

    14/08/2015 10:29 am, Dr Richard Wee MD, Medical Officer

    Objective:

    much more alert today.

37. On 14 August 2015, Brian's Encounters Notes (exhibit 2, page 120) recorded:

    14/08/2015 2:04 pm, Renee Hillman, Clinical Nurse

    Assessment:

    Seems to be much more alert and orientated.

38. Phillip and Wendy both gave evidence that they visited Brian in the infirmary on 16 August 2015.  They stated that they found Brian in a poor physical and mental state (Phillip:  exhibit 3 [26] ‑ [36]; Wendy:  exhibit 8 [28] ‑ [34]).  There is no record in the Encounters Notes that Brian was experiencing cognition problems but, given that, over this period his mental state appeared to fluctuate, he may well have been in a poor mental state when Phillip and Wendy visited him.

39. The Encounters Notes (exhibit 2, pages 117 ‑ 118) recorded:

    17/08/2015 10:48 am, Dr Richard Wee MD, Medical Officer

    Objective:

    cheerful and cooperative
    alert
    orientated to time, place and person
    moves all 4 limbs
    speech clear

    no facial weakness

40. On 18 August 2015, a Montréal Cognitive Assessment (Basic) (MoCA‑B) was conducted by Dr Richard Wee:  Score 12/30 (167).  In his medical notes, Dr Wee recorded (at page 116):

    18/08/2015 12:14 pm, Dr Richard Wee MD, Medical Officer

    (Assessment Outcome)

    Subjective:

    Montreal Cognitive assessment (MOCA) performed today 12/30 (moderate cognitive impairment)

    remains clinically stable

    Plan:

    Problem:  New Diagnosis: moderate cognitive impairment

41. In cross‑examination Professor Foster questioned the marked disparity between the MMSE score and the MoCA.  His opinion was that the disparity was more likely to be due to co‑morbidities (ts 205 ‑ 206, 9 April 2019).

42. In the joint experts' report (exhibit 14) the experts state:

    The experts agree that there is some evidence as per the hospital and other clinical records of some variation in Mr Attwell's lucidity, with delirium being one potentially relevant consideration (i.e. 'a number of delirium episodes' described).  This appears to be consistent with the somewhat discrepant cognitive screening test findings obtained in August 2015.

43. The Encounters Notes (exhibit 2, pages 117 ‑ 118) recorded:

    18/08/2015 12:31 pm, Dr Jose Omotoso MBBS FWACS, Medical Officer

    Subjective:
    Brian at Moderate level of Cognitive decline.
    Objective:
    No patient contact
    Assessment:
    It is doubtful if Brian has testamentary capacity to effect change in his wil (sic) because he is moderately demented.
    A neuropsychiatrist/neurologist may be required to effect Testamental Capacity depending on complexity of the decision
    Plan:

    This new Medical certificate invalidates that of 12/8/2015

1. It is not a requirement of the test for capacity that there be explicit evidence concerning explicit monetary values cognitively worked through and justified by Mr Attwell with respect to the value of his assets and the relative apportionment of monetary values to his beneficiaries.  In effect, the experts have set the bar for assessing testamentary capacity way too high.

2. The report continued:

   (vi)The experts agree that there is some evidence as per the hospital and other clinical records of some variation in Mr Attwell's lucidity, with delirium being one potentially relevant consideration (ie. 'a number of delirium episodes' described).  This appears to be consistent with the somewhat discrepant cognitive screening test findings obtained in August 2015.

   (vii)The experts are agreed that there is insufficient evidence to determine retrospectively the precise cause of any brain‑related changes with respect to Mr Attwell's clinical status at the time.  The experts also agree that the cause of the cognitive impairment per se does not influence directly the issue of testamentary capacity other than with respect to the question of reported fluctuation in the test scores and likely progression in functional status over time (e.g.  In other respects, the experts are agreed that the aetiology in this context is not central to the matters under consideration with respect to testamentary capacity cf. Mr Attwell's functional status, which is the key consideration.

   (viii)The experts are agreed that with respect to the brief cognitive screening instruments administered to Mr Attwell in 2015 and 2016 there is insufficient evidence to evaluate Mr Attwell's level of judgement and insight from the findings obtained using these measures.  This consideration notwithstanding, it is agreed that Mr  Attwell 'in certain ways probably functioned  quite well' (as evidenced by an MMSE score of 27/30 as late as 12.08.15, notwithstanding Associate Professor Clarnette's valid concerns about some elements of the MMSE scoring; if applied to derive a corrected score, Professor Foster believes the outcome nevertheless locates Mr Attwell in the traditional 'no cognitive impairment' 24‑30 range 5 (see:  for a comprehensive review of the MMSE).  However, Associate Professor Clarnette does not agree that a score in this range necessarily indicates the absence of cognitive impairment.  It is agreed that other findings indicate cognitive impairment; in particular, with respect to the MOCA‑B screening score reported in August 2015 and the QMCI screening score reported in August 2016.

   (ix)It is agreed that neither legal practitioner (Ms Lattimore, Mr Wagenaar) fully assessed testamentary capacity as per the guidelines of which the experts are aware* (see above).  Nevertheless, there is consensus that some value and weight should be ascribed to the contemporaneous notes from these legal practitioners, notwithstanding other caveats noted herein which are considered to 'diminish the integrity of the interview' undertaken by Ms Lattimore somewhat.  It is also agreed that Mr Attwell was capable of holding conversations and expressing opinions about his Will, with coherent discussions and related conversations regarding his Will taking place between Mr Attwell and his lawyers.  There is agreement that the information in letters from Mr Attwell and interview notes indicated fluency in some aspects of his financial matters.  It is further agreed that from the file materials there is evidence of awareness of the apportionment of assets of the Will on the part of Mr Attwell, but without evidence of an explicit justification worked through from first principles (ie. with respect to Mr Attwell's reasoning and judgement) or explicit knowledge of the value of Mr Attwell's assets demonstrated by him.

3. As stated above, the experts misstated the test.  Accordingly, their comments on the integrity of the interview by Jade Lattimore are misplaced.  Again, there is no requirement for evidence of an explicit justification worked through from first principles (ie. with respect to Mr Attwell's reasoning and judgement) or explicit knowledge of the value of Mr Attwell's assets demonstrated by him.

4. The report continued:

   (x)The expert agreed that, given his experience in the field over several decades and his awareness of relevant criteria (and reasonably presuming rigorous application of these criteria*), it is likely that Mr Attwell lacked testamentary capacity when Associate Professor Clarnette assessed Mr Attwell in this regard in August 2016 (as per Associate Professor Clarnette's opinion at this time).  It is further agreed that by extrapolation this clinical opinion from Associate Professor Clarnette also casts doubt on Mr Attwell's testamentary capacity at the time of the Codicil in May 2017 in the context of likely gradual deterioration of his functional status, i.e. in the absence of any further informative evidence regarding Mr Attwell's status at this time (eg. any contemporaneous notes available from other source/s).  With respect to the latter, it is agreed that any neurodegenerative clinical condition was not rapidly progressive in the context of all other available evidence.

   (xi)...

5. The criteria referred to in (x) are those set out in the expert's conference report above which are in error.  As stated, the wrong test was applied.  If that is the test Dr Clarnette used when assessing Brian in August 2016 he used the wrong test.

6. The report continued:

   The points of difference which remain among the experts

   (xii)Associate Professor Clarnette and Professor Foster agreed with respect to the quality of the interviews on record undertaken by the legal practitioners (Ms Lattimore, Mr Wagenaar).  By contrast, Dr Arenson expressed the reservation that that the legal team lacked expertise in assessing patients with dementia (despite having done 'a few Wills in their time') and could not assess 'testamentary capacity from a medical assessment point of view'.  (Dr Arenson cited Mr Attwell's medical history, past neuropsychological findings, imprisonment etc. and possible influences that were brought to bear on a 'very vulnerable man').

7. As previously stated this is a testamentary capacity case.  It is not an undue influence case.  There is simply no basis for Dr Arenson to doubt the integrity of the interview on the basis of possible influences that were brought to bear on a 'very vulnerable man'.  It is an irrelevant consideration.

8. Dr Arenson's opinion that Jade Lattimore and Jonathan Wagenaar could not assess testamentary capacity from a medical point of view is misplaced.  Whether a person has testamentary capacity requires a legal assessment rather than a medical assessment.

9. The report continued:

   (xiii)Associate Professor Clarnette and Professor Foster agreed that Ms Lattimore in September 2015 was able to elucidate evidence of coherence with respect to fundamental elements of the Will.  Dr Arenson expressed significant 'doubt' or 'concern' about this interaction, suggesting (from having read the discourse) that redirection took place from Mr Attwell's lawyers with only 'brief interpolations' from Mr Attwell and no 'complex discussion' about what Mr Attwell was 'really thinking', Dr Arenson further raised considerations with respect to Banks vs Goodfellow and whether Mr Attwell 'understood the complexity of the matters that he was dealing with' and whether 'his judgement was of reasonably sound quality' and/or manifested the 'level of expected judgement to execute a Will'.  Specifically, Dr Arenson argued that he was unable to identify record of any conversation in which the value of Mr Attwell's assets was discussed with him, which Dr Arenson considered centrally relevant in the context of marked Will disparities.

10. Dr Arenson's opinion is based on an irrelevant consideration.  There is no requirement to establish the value of Mr Attwell's assets.

11. The report continued:

    (xiv)Associate Professor Clarnette and Professor Foster agreed that the interview with Ms Lattimore showed that Mr Attwell knew 'a large amount about his estate'.  However, Associate Professor Clarnette noted that Mr Attwell was not asked why he had chosen the specific 'breakdown' of his state and why he was 'leaving most of it to one son'.  Professor Foster referred to a letter as recent as August 2016 indicating awareness of the apportionment of Mr Attwell's estate.  Dr Arenson disagreed that the financial matters discussed in this and related letters had any bearing regarding testamentary capacity, and related rather to Mr Attwell's long‑term memory understanding and corporate knowledge. Dr Arenson considers that the information contained in these letters 'tells us nothing about his judgement and his ability to make reasonable decisions with regard to a Will'. Nevertheless, Dr Arenson subsequently noted that 'we are arguing degrees rather than absolutes here', further opining with respect to Mr Attwell's letters and related documents that 'it says something about him and his abilities but ... it doesn't really tell us whether he has testamentary capacity or not'.

12. Although the experts, because they were not properly instructed, did not appreciate it or were unaware of it, there is an explanation as to why Brian left most of his estate to Ian (see above).

13. The report continued:

    (xv)Dr Arenson believes there is evidence of highly deregulated behaviour on the part of Mr Attwell over several years going back to 14.10.12 (as he considers is evidenced by the report of Dr Skerritt and the findings of Dr Vuletich).  Professor Foster and Associate Professor Clarnette remain agnostic on this question in the absence of any documentary or other evidence of deregulated behaviour.  On a related matter, the experts disagree on the extent to which there is evidence of 'poor decisions' being made by Mr Attwell over the preceding few years prior to his death.  Specifically, it was agreed between Associate Professor Clarnette and Professor Foster that there is no evidence that Mr Attwell was making 'bad decisions' in his affairs. Dr Arenson considered that 'there is evidence that he was making bad decisions generally' (with information from Dr Skerritt's report in October 2012 subsequently cited).

14. For the reasons stated there is no evidence to establish that there was highly deregulated behaviour on the part of Brian - apart from the single instance that he attempted to procure the murder of his daughter‑in‑law.

15. The report continued:

    (xvi)There was lack of consensus regarding the opinions expressed by in situ medical staff (e.g. Dr Omotoso, Dr Wee) concerning Mr Attwell's status.  Specifically, Dr Arenson opined that a 'registered nurse has absolutely no qualification whatsoever to assess testamentary capacity or capacity', with a 'very limited statement' provided by this nurse which represents a 'very, very limited piece of evidence' with a 'very limited view' expressed by the nurse concerning Mr Attwell (as a personal opinion was reportedly offered, with no formal assessment undertaken).  The question of potential differences of weight allocated to the matters noted by in‑house clinicians was described as a point that could not be agreed or disagreed upon among the experts by Dr Arenson, as his opinion was that no valid in‑house assessments or evaluations of capacity were undertaken.  Associate Professor Clarnette agreed with Dr Arenson that he did not attribute any weight to the opinions of the registered nurse and in house clinicians at Casuarina.

    (xvii)Professor Foster questions the previously reported neuropsychological findings of Dr Vuletich in 2013.  By contrast, it appears that Drs Arenson and Associate Professor Clarnette appear to wish to accept Dr Vuletich's comments in her report at face value greater weight is placed by Professor Foster than by Associate Professor Clarnette and Dr Arenson on the MMSE test findings obtained in August 2015; specifically with respect to the question of whether these findings represent a 'high watermark' with respect to cognitive capacity in the context of questions related to delirium, variable lucidity and other putative factors affecting Mr Attwell's cognitive status.  To summarise, Professor Foster attributes greater weight to evidence of significant variability in Mr Attwell's cognitive capacity over time as evaluated via screening measures than do Dr Arenson or Associate Professor Clarnette.

    (xviii)Professor Foster considers the observation that no Guardianship or Power of Attorney provision was coordinated and executed by Mr Attwell and/or no State Administrative Tribunal (SAT) applications made to be pertinent with respect to Mr Attwell's ongoing mental capacity.  Furthermore, it appears that no adverse matters or concerns were raised concerning Mr Attwell's ability to provide consent for treatment by any health practitioners with whom Mr Attwell came into contact quite regularly it seems over the several years preceding his death in 2017.  Drs Clarnette and Arenson do not consider these considerations relevant to their opinion concerning testamentary capacity.

    (xix)While all three experts understand that the evaluation of capacity is a legal determination, on the basis of all currently available information all experts consider that the information suggests that loss of testamentary capacity has not been unequivocally demonstrated with respect to matters occurring in September 2015 and there is a paucity of evidence to rebut the presumption of capacity.  Associate Professor Clarnette agreed and stated that he does not know whether there was preserved capacity on 07.09.15 but has 'substantial doubt' whether this was the case.  Dr Arenson agreed with Associate Professor Clarnette.  Inter alia, as has been noted Professor Foster placed greater weight upon differences in test outcomes in August 2015 (interpreted in the context of all other available information) than Associate Professor Clarnette or Dr Arenson.

Is there a doubt?

1. All of the experts agreed that further and fuller testing would be necessary to establish whether or not Brian lacked that testamentary capacity.  All agreed that that testing was never carried out.

2. The plaintiffs submitted that 'on the totality of the evidence there was a doubt about Brian's capacity at the time he gave instructions on 26 August 2015 and on the day he executed the 2015 Will on 7 September 2015'.

3. The plaintiffs submitted that on 7 September 2015, the date of the purported execution of the 2015 Will:

   (a)no medical report about Mr Attwell's capacity had been obtained by Ms Lattimore (or seemingly Mr Wagenaar) despite:

   (i)his age (75 years at the time);

   (ii)the fact that he was residing in a prison Infirmary;

   (iii)Ms Lattimore being aware that Mr Attwell had a Urinary Tract Infection;

   (iv)the fact that Mr Attwell had recently been discharged from hospital suffering from the Urinary Tract Infection and delirium; and

   (v)the fact that instructions had been given by the solicitors for the person who stood to benefit most from the execution of the 2015 Will;

   (b)no discussion had been had by Ms Lattimore (or seemingly Mr Wagenaar) with Mr Attwell's treating doctors regarding his capacity, again, despite the matters noted at (a)(i) to (v) above;

   (c)no discussion had been had by Ms Lattimore with Mr Attwell as to the values of his assets given to Ian and Philip under the 2015 Will.  Whilst Ms Lattimore says that Mr Attwell informed her that Ian was under, the 2015 Will, to receive more than Philip, there was no explanation of this and there is no evidence of any basis on which Mr Attwell could assess the competing claims.

   It is submitted that the circumstances set out above regarding the failing health of 75 year old incarcerated Mr Attwell surrounding the signing of the 2015 Will, are sufficient to place the onus back on the propounder of the 2015 Will to satisfy the court that the testator had testamentary capacity.  The evidence against testamentary capacity is supported by cogent medical evidence and by the observations of the Plaintiffs and other family members who saw Mr Attwell just prior the signing of the 2015 Will.

4. For the reasons stated above the failure to obtain a medical report does not of itself raise a doubt.  Both Jade Lattimore and Jonathan Wagenaar observed Brian on 26 August 2015 and 7 September 2015 and neither concluded that a medical report was necessary.  The same considerations lead to the conclusion that there was no reason for a discussion with Brian's treating doctors.

5. The plaintiffs relied on the reports of Professor Skerritt and Dr Vuletich. They submitted that those reports established that in 2012 there was evidence of dementia.  The problems with the plaintiffs relying on the reports have been identified above.  In any event, even if Brian had early signs of dementia, there is no evidence that it affected his testamentary capacity at the relevant time.

6. Although Ian's family lawyers had provided information to Jade Lattimore there is simply no evidence that Ian's solicitors provided instructions to Jade Lattimore.  The instructions for the will were provided by Brian.

7. It was not necessary to identify the precise value of the assets.  The notes taken by Jade Lattimore and Jonathan Wagenaar establish that Brian had good knowledge of his assets.

8. It is incorrect to submit that there was no explanation of why Ian Phillip were being treated differently.  Ian was effectively receiving AD Contractors by reason of his long involvement in that company. Brian was well placed to assess the competing claims and the notes disclose that he did consider them.

9. In so far as a great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation (Bool v Bool) that explanation is provided by Brian's wish that Ian retain AD Contractors by reason of the fact that Brian wanted Ian to have the assets to protect AD Contractors and to run it.

Was Brian a free and capable testator?

1. The plaintiffs submitted that:

   The plaintiffs' submissions for the reasons set out above are that he was not a free and capable testator.  The contemporaneous medical notes, the difficulties in obtaining an accurate capacity test by the prison medical officers together with the evidence of his family together with the detailed analysis of the prison medical records by Dr Arenson, a geriatrician and an endocrinologist and diabetes expert, and Dr Clarnette, geriatrician, both raise considerable doubt as to Brian's capacity at that time and the onus shifts to the propounders of the 2015 Will.

2. The Court does not accept that Brian was not a free and capable testator for the reasons set out in this judgment.

3. The Encounters Notes evidence that whilst Brian had periods of loss of capacity that loss was not sustained.

4. The 'difficulties in obtaining an accurate capacity test' simply says that one wasn't obtained.  It says nothing about what it might have revealed.  

5. By and large the evidence of family members called by the plaintiffs is inconsistent with the Encounters Notes.  Crucially, those family members were not present on 7 September 2015.

6. For the reasons stated above the expert medical evidence cannot be relied upon.

7. The plaintiffs submitted that:

   … the First and Second Defendants have failed to discharge their onus by reason of at least all of the evidence which supported the finding that there was a doubt, in addition to the following matters:

   (i)A meticulous examination of Ms Lattimore's evidence would not leave the court 'comfortably satisfied' that Brian had capacity;

   (ii)Brian was not given any values of the properties so he could not 'remember', call to mind the asset in question; to 'reflect' to consult with himself on the nature of their claims; and 'reason', so that he can judge, having regard to his assets, how far, if at all, he should give effect to them;

   (iii)In particular, there was no positive evidence that Brian understood the massive change the 2015 Will made compared with the equal division between his two sons in his earlier Wills made in 1996, 1998 and 2012.  In the 2015 Will, Ian receives on the most likely scenario $8,213,231.94 more than Philip.

   As Macrossan SPJ said in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct):

   'A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation;'

   (iv)It is unclear as to who Mr Wagenaar and Ms Lattimore were working for.  They received support from Ian's solicitors, Latro Lawyers of Albany, and Morgan Charter.  The provision of information enabled this extremely complex Will (amongst other documents relating to Brian's complex affairs) to be drafted in a very short time;

   (v)The making of a new Will for Brian overlaps with Ian's Family Court case.  The process of Brian making a new Will commenced after Ian Attwell's Family Court case decision had been reserved in late July 2015.  The decision was handed down on Friday 4 September 2015 and Brian's new will executed on Monday 7 September 2015.  Crisford J's decision was based on the provisions of the 2012 Will continuing, that is, an equal division of Brian's assets between Ian and Philip Attwell;

   (vi)On and from 7 September 2015, Ian Attwell stood to inherit over $8 million worth of assets more than his brother, Philip, but the Family Court had assumed in making its decision that they would continue to receive an equal division of Brian's assets; and

   (vii)Another possible explanation for the significant disparity in the distribution of assets in the 2015 Will can be explained by Brian suffering from a form of dementia.  Dr Arenson favours vascular dementia; Dr Elizabeth Vuletich favoured behavioural variant frontotemporal dementia; Dr Clarnette said Brian's dementia affected his ability to comprehend the Will and its effect in the very short time frame during which instructions were taken. At that time Brian's comprehension may have been diminished from the effects of his recent Urinary Tract Infection with its attendant delirium.  Brian suffered from a cognitive impairment and this could have been accentuated by his recent illness that necessitated moving him from prison to Fiona Stanley Hospital.  His pre-sentence medical reports indicate that Brian was able to mask his cognitive deficits. No detailed capacity test was taken by Mr Wagenaar and Ms Lattimore before the signing of the 2015 Will. If such a test had been carried out it is submitted that Brian's poor cognition would have been evident.

1. The Court has had particular regard to the oral evidence given by Jade Lattimore.  She had no interest in the outcome of these proceedings.  The Court found her to be a reliable and honest witness and has no hesitation in accepting her evidence.  Importantly her evidence as to Brian's capacity on 26 August 2015, when the instructions were taken and 7 September 2015 when the will was signed was not challenged in any meaningful way in cross‑examination.  A meticulous examination of Jade Lattimore's evidence leaves the Court satisfied that Brian had capacity on both 26 August 2015 and 7 September 2015.

2. Further Jonathan Wagenaar was not called to give oral evidence.  Accordingly, the evidence recorded in his notes is unchallenged.  Those notes support Jade Lattimore's assessment of Brian's capacity on 26 August 2015.

3. Neither Dr Arenson nor Professor Foster saw Brian.  Dr Clarnette saw Brian but long after the 2015 Will was executed.

4. As noted above in Tobin the evidence of those with experience in dealing with elderly people, and who have personally observed the testator at and around the relevant time, is of considerable significance, often more than the opinions of others, medically qualified or not, who have not personally observed the testator at relevant times

5. It is not essential to a finding of testamentary capacity that the testator give the value of his assets.  It is clear from the notes and oral evidence of Jade Lattimore and the Notes of Jonathan Wagenaar that Brian did remember the vast majority of his assets.  No question was raised as to any beneficiaries other than Ian, Phillip and Wendy being proper objects of his bounty.  There was a clear explanation as to why he favoured Ian.

6. It is clear that Jonathan Wagenaar and Jade Lattimore were acting for Brian. It appears on the face of his notes taken by Jonathan Wagenaar. Jade Lattimore's oral evidence was that she was acting for Brian in drafting the 7 September 2015 Will.  The fact that they may have received information from Latro Lawyers and Morgan Charter does not mean that they were not acting for Brian. 

7. Brian was not a party to the Family Court proceedings between Ian and his former wife. It is not clear from the judgment whether Brian even gave evidence.  Crisford J's finding as to Brian's intentions regarding the 2012 Will continuing is irrelevant to a determination of Brian's testamentary intention at the relevant times.  The Family Court's conclusion cannot bind Brian or this Court.  The evidence discloses that in August/September 2015 Brian had decided to change his will so as to largely benefit Ian. 

8. Dr Clarnette's evidence as to Brian's capacity on 7 September 2015 does not outweigh the evidence of Jade Lattimore.  Nor does his evidence outweigh the notes of Jade Lattimore and Jonathan Wagenaar of 7 September 2015 which evidence that Brian had testamentary capacity.

9. As noted above, Dr Clarnette's report stated 'I am not sure if there are sufficient grounds to overturn the contemporaneous opinion of Ms Lattimore and Mr Wagenaar in their opinion that he was capable of executing a will'.

10. No adequate test of Brian's testamentary capacity was carried out.  It is speculative to submit that such a test, if carried out, would have shown that Brian had poor cognition.

Testamentary capacity - the purported Codicil dated 31 May 2017

1. The plaintiffs submitted that:

   Dr Clarnette tested Brian using the Quick Mild Cognitive Impaired Screen Test on which Brian scored 38/100 (exhibit 2, tab 329) [on 19 August 2016]. Dr Clarnette noted that this was an impaired performance with deficits in orientation, working memory, clock drawing work recall and verbal fluency (exhibit 2, tab 331).

   The 2017 Codicil (exhibit 2, tab 12) was signed nine months after Dr Clarnette visited Brian in Casuarina Prison.

   Dr Clarnette has found that, given the clearly documented cognitive impairment that progressively worsened over a number of years, it is very unlikely that Brian had testamentary capacity at the time he made the Codicil dated 31 May 2017 (exhibit 1, tab 121).

   It is submitted that there is sufficient evidence to rebut the presumption that Brian was competent when the Codicil dated 31 May 2017 was purportedly executed.

2. The plaintiffs further submitted that:

   The Codicil (if valid) would have the effect of republishing the Will that is dated 7 September 2015.

   By republishing the 2015 Will, the Will is effective on and from 31 May 2017.

   On 31 May 2017, Brian did not have testamentary capacity as shown by Dr Clarnette's capacity test on 19 August 2016 (as noted in his report of 29 August 2016).

3. The 2017 Codicil was a simple document.  Effectively, it simply replaced Jonathan Wagenaar as executor with two new executors.  There was no complexity inherent in that.  Brian agreed to Stephen Morgan being appointed as one of the suggested new executor and suggested Brian Fuller as the other.

4. The Court finds that the paragraphs above relating to Brian's capacity as at 19 August 2016 and Dr Clarnette's report raise a doubt as to Brian's testamentary capacity on that date.

5. However, the evidence of Stephen Morgan and Ian Attwell relating to Brian's capacity on 31 May 2017 establish that Brian had capacity on the day when he executed the 2017 Codicil and dispels any doubt.  This is particularly so given the fact that neither Stephen Morgan nor Ian Attwell were cross‑examined on their evidence.  Whilst the Court might discount Ian's evidence, Stephen Morgan is essentially a disinterested party.  The Court finds that he is a reliable witness and accepts his evidence.

6. The Court is thus left in the position that there is unchallenged evidence that as at 19 May and 27 May 2017 Brian appeared to be alert and engaged (exhibit 2, [132] ‑ [133]).

7. In addition there are a series of letters referred to above that indicate that Brian was writing logically after Dr Clarnette examined him on 19 August 2016.

Suspicion events v suspicious circumstances

1. In the plaintiffs' submissions they refer to 'suspicious events'.  It is not clear what that phrase is aimed at.  The phrase 'suspicious circumstances' is well known in probate law.  In Vernon v Watson[17] Burchett AJ stated:

   The central question in the case is whether, and if so how, the validity of the will propounded by the plaintiffs is affected by the doctrine of probate law commonly invoked by the use of the expression suspicious circumstances.  The principle relating to suspicious circumstances was stated by a'Beckett J in In re Nickson, deceased [1916] VLRep 274 at 281:

   'There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies.  It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it.  But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will.  They have thrown upon them the onus of showing the righteousness of the transaction:  Fulton v Andrews [1875] LR 7HL 448.'

   [17] Vernon v Watson [2002] NSWSC 600 [2].

2. No such case arises in these proceedings.

3. In any event, the evidence is that Jade Lattimore went through the 2017 Will line by line with Brian.  Her evidence was unchallenged on this point. 

4. When questioned about whether it was an undue influence case counsel for the plaintiffs stated that it was not (ts 257, 10 April 2019).

5. At pars 117 to 146 of the plaintiffs' submissions the plaintiffs alleged that there were a number of suspicious events between the execution of the 7 September 2015 Will and the 31 May 2017 Will.  The date period covering the events identified in this part of the submissions is from 2 November 2015 to 25 October 2016.

6. As noted above the plaintiffs' pleaded case is simply a lack of testamentary capacity.  There is no plea of undue influence nor of suspicious events. This part of the submissions is irrelevant.

7. However, it is perhaps useful to refer to one event, that of 10 November 2015.  The plaintiffs allege that this is one of the suspicious events.  The events surrounding 10 November 2015 are set out above.  Far from demonstrating any lack of capacity the events of 10 November 2015 are evidence capacity for the reasons stated above in the discussion in relation to the events of 10 November 2015.

8. The balance of the submissions in this part largely relate to the execution of documents other than the 7 September 2016 Will and the 31 May 2017 Codicil.  No pleadings relate to these documents and no relief is sought in relation to those documents.

9. If Brian's signing of the Notice of Appointment on 10 November 2015 was a suspicious event then Jonathan Wagenaar should have been required for cross-examination about it.  He was not.

Conclusion

1. The Court is required to assess the evidence as a whole in making its determination as to testamentary capacity.  The opinions of the expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times particularly when the experts have misconceived or misapplied the relevant test of testamentary capacity.  The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw Brian at the time of his making the 2015 Will and 2017 Codicil.  The manner in which he gave his instructions, the content of those instructions, and the failure to challenge the evidence of those who were present when instructions were given and when the documents were executed have all been assessed by the Court in reaching its conclusions about Brian's testamentary capacity on the basis as set out above.

In summary

The 2015 Will

(a)Brian had a good knowledge of his estate;

(b)he appreciated the claims to which he should give effect: Wendy, Ian and Phillip;

(c)it is not suggested that any disorder of the mind or insane delusion affected his will making;

(d)the evidence of Jade Lattimore, and her contemporaneous notes, establish that Brian had testamentary capacity on 26 August 2015 and 7 September 2015;

(e)Jonathan Wagenaar's notes support her evidence;

(f)neither Jade Lattimore or Jonathan Wagenaar's evidence was challenged;

(g)the evidence in the Encounters Notes establishes that, despite some intervals where Brian did not have capacity, for example following his UTI, on the crucial dates he had testamentary capacity;

(h)those dealing with Brian on matters requiring his consent, such as declining medical treatment, accepted that he was able to make such decisions;

(i)Brian's conduct in rejecting the replacement of Wendy as a director on 10 November 2015 is consistent with his continued testamentary capacity.

The 2017 Codicil

(a)The 2017 Codicil was a simple document replacing Jonathan Wagenaar as executor with Stephen Morgan and Brian Fuller.  Brian Fuller was suggested by Brian;

(b)Stephen Morgan and Ian Attwell's evidence supports Brian having testamentary capacity;

(c)neither Stephen Morgan nor Ian Atwell's evidence was challenged;

(d)despite the fact that Brian probably did not have testamentary capacity on 19 August 2016, the subsequent records in the Encounters Notes and Brian's correspondence establish that he was rational and lucid on the relevant dates in May 2017.

1. In relation to both:

   (a)His correspondence was rational;

   (b)Phillip's correspondence with Brian is consistent with Brian being rational;

   (c)the evidence of the plaintiffs and their witnesses is not consistent with the Encounters Notes;

   (d)Brian's conduct in rejecting the replacement of Wendy as a director on 10 November 2015 is consistent with his continued testamentary capacity;

   (e)overall, the expert medical evidence is equivocal. In any event the experts applied the wrong test, or misapplied the correct test; and

   (f)to the extent there was some evidence of dementia it was not sufficient to lead to a conclusion that Brian had lost testamentary capacity at the relevant times. 

2. On the whole of the evidence, insufficient doubt attends Brian's capacity as at 26 August 2015 and 7 September 2015 to shift the evidentiary onus to the defendants.  And, even if there were a doubt, on the whole of the evidence, any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Brian being of sound mind, memory and understanding at the time of execution of the 2015 Will.

3. The Court is affirmatively satisfied that Brian Attwell had testamentary capacity when he executed his will on 7 September 2015.

4. By reason of Dr Clarnette's report after his examination of Brian on 19 August 2016 the Court is satisfied that a doubt arises as to Brian's testamentary capacity at the time of executing the 2017 Codicil.  However, on the whole of the evidence, any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Brian being of sound mind, memory and understanding at the time of execution of the 2017 Codicil.

5. The Court is affirmatively satisfied that Brian Attwell had testamentary capacity at the time he executed his codicil on 31 May 2017.

6. Accordingly the Court pronounces for the force and effect of the 2015 Will and the 2017 Codicil.  Accordingly, both should be admitted to probate.

7. The plaintiffs' application for a grant of probate of the 2012 Will is dismissed.

8. The parties are directed to file an agreed minute of orders, or if orders cannot be agreed respective minutes as to appropriate orders.

9. The Court will also hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MDM
Associate to the Honourable Justice Curthoys

28 MAY 2019