Brown v Wade - [2010] WASC 367

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BROWN -v- WADE [2010] WASC 367

CORAM: SIMMONDS J

HEARD: 2-4, 6, 9-13, 27 NOVEMBER 2009

DELIVERED : 9 DECEMBER 2010

FILE NO/S: CIV 1967 of 2006

MATTER :Probate of the wills of WILLIAM JAMES WADE late of 'Greenville Stud', Wickepin Road, Narrogin, Western Australia, Deceased

BETWEEN: MICHAEL BROWN As Executor of the Will of WILLIAM JAMES WADE
Plaintiff
AND
KATHLEEN IVY WADE As Executor of the Will of WILLIAM JAMES WADE
First Defendant
KATHLEEN IVY WADE
Second Defendant

Catchwords:

Wills - Probate - Whether testator had testamentary capacity - Testator an elderly person in frail condition - Medical and non-medical evidence - Proper approach to evidence

Wills - Probate - Whether testator knew and approved of contents of will

Wills - Probate - Whether testamentary undue influence - Standard of proof for case resting on circumstantial evidence - Whether standard met

Wills - Probate - Revocation of will - Whether capacity to revoke will - Medical and non-medical evidence - Proper approach to evidence

Legislation:

Wills Act 1970 (WA), s 15, s 36

Result:

Plaintiff's claim for probate of will in solemn form made out

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley & Ms M Van Der Kwast
First Defendant            :     Mr A Metaxas
Second Defendant        :     Mr A Metaxas

Solicitors:

Plaintiff:     Dwyer Durack
First Defendant            :     Cooper Legal Pty Ltd
Second Defendant        :     Cooper Legal Pty Ltd

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

Bailey v Bailey [1924] VLR 294; (1924) 34 CLR 558
Banks v Goodfellow (1870) LR5QB 549
Barndon v Chelvanayagam [2006] WASC 118
Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152
Birmingham v Renfrew [1937] VLR 327; [1937] ALR 520; (1937) 57 CLR 666
Bool v Bool [1941] St R Qd 26
Boyse v Rossborough (1857) 6 HL Cas 1; (1857) 10 ER 1192
Briginshaw v Briginshaw [1938] ALR 334; (1938) 60 CLR 336
Brown v McEnroe (1890) 11 NSWR Eq 134
Bull v Fulton [1942] ALR 221; (1942) 66 CLR 295
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Fisher v Kay [2010] WASCA 160
Grainger v Williams [2009] WASCA 60
Hall v Hall (1868) LR1P&D 481
Hayden v Bond [2003] WASC 96
Jones v Dunkel [1959] ALR 367; (1959) 101 CLR 298
Kantor v Vosahlo [2004] VSCA 235
Kerr v Badran [2004] NSWSC 735
Le Cras v Perpetual Trustee Co Ltd; sub nom Re Resch's Will Trusts [1969] 1 AC 514; [1967] 3 All ER 915; [1968] 3 WLR 1153
Luxton v Vines [1952] ALR 308; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170
Nicholson v Knaggs [2009] VSC 64
Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
O'Donnell v Reichard [1975] VR 916
Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204
Public Trustee v Till [2001] 2 NZLR 508
Re Richards [1911] VLR 284
Revie v Druitt [2005] NSWSC 902
Robertson v Smith [1998] 4 VR 165
Roebuck v Smoje [2000] WASC 312
Ryan v Public Trustee [2000] 1 NZLR 700
The Public Trustee v Elderfield; Re Estate of Poole (Unreported; NSWSC (Young J); Lib No 118125 of 1994; 26 April 1996)
West Australian Trustees Ltd v Poland (Unreported, WASC (Kennedy J), Library No 7000, 6 January 1988)
Wingrove v Wingrove (1885) 11 PD 81; (1885) 50 JP 56
Winter v Crichton (1991) 23 NSWLR 116
Worth v Clasohm (1952) 86 CLR 439; (1952) 26 ALJR 626

Table of Contents

Introduction
Background: Mr Wade and his estate
Background: Mr Wade's family
Background: Mr Wade's eight wills prior to the Will of 21 February 2006

The first will: 15 August 1995
The second will: 20 August 1996
The third will: 28 November 1997
The fourth will: 11 November 1999
The fifth will: 17 April 2000
The sixth will: 5 February 2001
The seventh will: 19 March 2001
The eighth will: 24 January 2002

Background: the Will of 21 February 2006
Background: the purported Will of 6 June 2006
The general principles applicable to admission of a will to probate
Testamentary capacity in this case: the law applicable
The evidence of those present at the execution of the purported Will of 6 June 2006
The evidence of Mr Wade's exchanges with the solicitor on 24 May 2006
The medical evidence
The nature of the changes made to previous testamentary arrangements
Other matters
Conclusion on testamentary capacity
Knowledge and approval of the purported Will of 6 June 2006
Testamentary undue influence and the purported Will of 6 June 2006
Revocation of the purported Will of 6 June 2006: background
Revocation of the purported Will of 6 June 2006: law applicable to capacity
Revocation of the purported Will of 6 June 2006: the evidence and my finding as to capacity

Conclusion

SIMMONDS J:

Introduction

These are the reasons for judgment in the trial of an action for probate of a will. William James Wade died on 18 July 2006. His widow is Kathleen Ivey Wade.
Mr Wade had made a will dated 21 February 2006 (the Will of 21 February 2006). It is not contested that this was, when made, a valid will.
Subsequently, Mr Wade signed a document dated 6 June 2006 purporting to be a will which revoked all of his 'former wills and testamentary dispositions' (the purported Will of 6 June 2006). Michael Brown is the husband of Kaye Lynette Brown, the eldest daughter of Mrs Wade by a previous marriage, and he is named as one of the executors of the February 2006 will, but not of the purported Will of 6 June 2006. In that capacity he brings the present proceedings. I refer to Mr Brown as Mr Brown or the plaintiff. Mrs Brown is one of the beneficiaries under the Will of 21 February 2006 and the purported Will of 6 June 2006, but has a substantially lesser beneficial interest under the latter.
Mrs Wade is named as one of the executors of the purported Will of 6 June 2006, but not of the Will of 21 February 2006. She is also one of the beneficiaries under the Will of 21 February 2006 and the purported Will of 6 June 2006; however, she has a substantially greater beneficial interest under the latter. Mrs Wade in her capacity as an executor of the purported Will of 6 June 2006 is the first defendant in these proceedings, and as one of its beneficiaries is the second defendant. I refer to Mrs Wade as Mrs Wade or the defendant.
The plaintiff brought this action seeking probate of the Will of 21 February 2006. He says Mr Wade did not know and approve of the contents of the purported Will of 6 June 2006 and lacked testamentary capacity at the time he executed it. Even if he had such knowledge, gave such approval and had such capacity, the plaintiff says the purported Will of 6 June 2006 should not be admitted to probate because Helen Elaine Lewis, another daughter of Mrs Wade by her previous marriage, together with her husband, Ray Lewis, procured the execution of the document by their undue influence. The plaintiff further says that in any event on 13 July 2006, Mr Wade revoked the purported Will of 6 June 2006 and revived the Will of 21 February 2006.
Mrs Wade seeks probate of the purported Will of 6 June 2006. She denies the lack of testamentary capacity and the lack of knowledge and approval Mr Brown asserts. She also says that on 13 July 2006, Mr Wade lacked the capacity to revoke the purported Will of 6 June 2006.
There are the following issues in this trial.
The first issue is whether or not the purported Will of 6 June 2006 should not be admitted to probate on the basis that Mr Wade lacked testamentary capacity at the relevant time, or did not know or approve of its contents.
The second issue, arising only if the resolution of the first issue is 'No' is whether or not the execution of the purported Will of 6 June 2006 was procured by the undue influence of Mrs Helen and Mr Ray Lewis.
The third issue arises only if the resolution of the second issue is 'No'. The issue then is whether or not the purported Will of 6 June 2006 was revoked.
I will first provide a background to these issues. That background represents facts and circumstances that are not in contest.
Then I will deal with each issue in turn, setting out the applicable law, considering the relevant evidence, and describing my findings and the reasons for them.

Background: Mr Wade and his estate

Mr Wade was born on 24 May 1920. Throughout most of his life he was a farmer in the Narrogin area in Western Australia.
Mr Wade farmed two properties, each made up of lands under a number of titles. Both farming properties were on the Williams‑Kondinin Road. There was in evidence (exhibit 50) a coloured plan that showed the two farming properties and dealings with portions of them over the period beginning at about the time Mr Wade made a will in August 1995, and ending at the date of his death, in July 2006. There were no additions to the farming properties over that period, but a number of dealings sold portions of them. One farming property was called Merribah and all of the sales were of portions of that farming property. The evidence indicates that Mr Wade's two farming properties were the bulk of his assets at all material times.
During at least a part of that period, Mr Wade was a partner in a farming partnership with Mrs Wade, named WJ & KI Wade, which was in respect of all or a part of his farming business at the relevant times.
Mr Wade's farming business had run at a loss for the 10 years ending with his death.
Mr Wade also owned, for a period at least, a brood mare and stud sheep.
Merribah, at its largest extent, comprised a number of Williams Locations or portions of them in a number of titles and forming an area of land around a School Reserve, all to the north of the Williams‑Kondinin Road, except for one piece of land running south from it.
In mid‑1997, Mr Wade sold the piece of Merribah running south from the Williams‑Kondinin Road to persons who do not feature in these proceedings.
In or about November 2000, Mr Wade completed the sale of another piece of Merribah, forming the western-most portion of that farming property, to Leslie Gordon Gambrell and his wife, Rhonda Nicole Gambrell. The Gambrells were referred to by some of the witnesses in these proceedings as, respectively, Les and Nikki. Mr Gambrell had worked for Mr Wade on his farming properties beginning at least 10 years earlier. Mrs Gambrell did the books for Mr Wade's farming business in the period up to his death. In 1994 or 1995, Mr Wade had approached the Gambrells, offering to build a house for them on a portion of Merribah. He provided the money for the house, and the Gambrells contributed labour and material to the project. Thereafter the Gambrells lived rent free in that house and the portion of land on which it was built remained at all material times part of Merribah.
Mr Wade's final sale of a part of Merribah over the period in question was of pieces of land surrounding the School Reserve to the north and east, and extending south to the Williams‑Kondinin Road. The sale was in February 2005, and was to Mr and Mrs Brown. In February 2006 the Browns sold most of their farmlands, not including the pieces of land they had bought from Mr Wade in February 2005.
The other farming property was called Greenville. Greenville was mostly to the south east of Merribah, on both sides of the Williams‑Kondinin Road. Greenville comprised a number of Williams Locations in a number of titles. The house in which Mr Wade lived with Mrs Wade after their marriage was located in Greenville.
Mr Wade's estate at his death included Greenville and the balance remaining of Merribah.

Background: Mr Wade's family

Mr Wade had a sister, Patricia Shipley. Mr Wade was married twice. The first marriage was to Jean McGellin, who died in or about 1990. There were no children of this marriage.
On 6 February 1993, Mr Wade married Mrs Wade, then a widow. At that time she had three daughters from her previous marriage: Mrs Brown; Dale Lorraine Bergin (Mrs Bergin) who is married to Rex Bergin; and Mrs Lewis. There were no children of Mr Wade's second marriage.

Background: Mr Wade's eight wills prior to the Will of 21 February 2006

Mr Wade made or purported to make ten wills from 15 August 1995 to 6 June 2006, leaving aside the effect of the purported revocation of the purported Will of 6 June 2006. I deal with the first eight wills here. I deal separately with the Will of 21 February 2006 and the purported Will of 6 June 2006. For all of the wills I only outline the dispositive and closely related provisions. For each, I will briefly summarise the principal effects of the will and then outline its provisions in more detail.
As will be seen, counsel for the plaintiff laid particular emphasis on what he described as patterns in the first nine wills made by Mr Wade.
All the wills described revoked all previous wills of Mr Wade.

The first will: 15 August 1995

The earliest will, that of 15 August 1995, provided that Mrs Wade and Mr Brown would be the executors. It gave certain farmlands (apparently being Merribah) to the Gambrells, if they survived Mrs Wade, with a life interest in her favour. Mrs Wade was also given certain other interests, including, if she survived Mr Wade, the remainder of his farmlands. Provision was also made for Mrs Lewis, Mrs Bergin and Mrs Brown, if they survived Mr Wade.
The 15 August 1995 Will provided for a life interest for Mrs Wade in the lands the subject of three specified Williams Locations, being respectively the lands in three specified certificates of title, apparently comprising Merribah as it was at that time. The Gambrells were given a right of first refusal if it were decided to lease those farmlands. Those farmlands were given to such of the Gambrells as should be living at the time of Mrs Wade's death, and, if both survived her, in equal shares. The remainder of Mr Wade's farmlands, apparently Greenville, was given to Mrs Wade, but if she predeceased Mr Wade, to his sister, Mrs Shipley. The Gambrells were given a right of first refusal if it were decided to sell or lease those remaining farmlands. Certain persons named as friends were given a named brood mare and Mr Wade's interest in her progeny; and certain other named persons, not members of Mr Wade's family or the Gambrells, were given Mr Wade's interest in any other racing horses.
From his residuary estate, Mrs Wade was given his farming partnership interest or interests. The Gambrells were given a right of first refusal if it were decided to sell assets of that partnership or those partnerships. Also from Mr Wade's residuary estate, such of his stepdaughters (Mrs Lewis, Mrs Bergin and Mrs Brown) as should survive him, and, if more than one, in equal shares, was given the beneficial interest in $30,000. The balance then remaining of the residuary estate was given to Mrs Wade.

The second will: 20 August 1996

The 20 August 1996 Will, like the 15 August 1995 Will, provided that Mrs Wade and Mr Brown would be the executors. The 20 August 2006 Will made reduced provision for the Gambrells and greater provision for Mrs Wade. The same provision was made for Mr Wade's stepdaughters as under the 15 August 1995 Will.
The 20 August 1996 Will provided that portions of two named Williams Locations, respectively being parts of two specified certificates of title, representing a total area of approximately 200 acres, apparently part of Merribah as it was at that time, together with 200 flock ewes, were given to such of the Gambrells as should survive Mr Wade, and if both survived him in equal shares. This bequest appears to have included lands on which the house the Gambrells occupied stood.
The remainder of Mr Wade's farmlands was given to Mrs Wade without any express requirement for her to survive Mr Wade and without provision for Mrs Shipley. The Gambrells were given a right of first refusal if Mrs Wade decided to sell or lease those remaining farmlands.
There were the same provisions as in the 15 August 1995 Will for the brood mare, her progeny, and Mr Wade's interest in any other racing horses. The provisions for Mr Wade's residuary estate were the same as in the 15 August 1995 Will, for his stepdaughters and for Mrs Wade, but without separate provision for his farming partnership interest or interests.

The third will: 28 November 1997

The 28 November 1997 Will, like the 15 August 1995 Will and the 20 August 1996 Will, provided that Mrs Wade and Mr Brown would be the executors. The 28 November 1997 Will made similar but further reduced provision for the Gambrells, and similar provision for Mrs Wade as the previous two wills, and the same provision was made for Mr Wade's stepdaughters.
The 28 November 1997 Will provided that portions of the same two specified Williams Locations, respectively being parts of the same two specified certificates of title as in the 20 August 2006 Will, but described as representing a reduced total area of approximately 80 acres, together with 200 flock ewes, were to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. This area appears to have included lands on which the house the Gambrells occupied stood.
The remainder of the dispositions of the 28 November 1997 Will, including provisions for disposition of the brood mare, her progeny and Mr Wade's interest in any other racing horses, a right of first refusal for the Gambrells and the dispositions in respect of the residuary estate, were in the same terms as the corresponding dispositions in the 20 August 1996 Will.

The fourth will: 11 November 1999

Unlike the two previous Wills, the 11 November 1999 Will provided that Joseph Leong and Mr Brown would be the executors. Mr Leong was in an accounting practice in Narrogin and, after the retirement in 1993 of his partner in that practice, received instructions from Mr Wade on accounting and taxation matters with respect to his farming activities and the farming partnership. Unlike any of the previous wills, the 11 November 1999 Will made separate provisions for the Merribah and Greenville farmlands. Larger provision was made by the 11 November 1999 Will for the Gambrells and similar, but not identical, provision was made for Mrs Wade. Substantially different provisions were made for Mr Wade's stepdaughters, with different provision for Mrs Bergin compared with those for Mrs Lewis and Mrs Brown.
The 11 November 1999 Will provided that portions of the same two specified Williams Locations as in the corresponding provision in the previous two wills, now referred to as being together comprised in a specified lot in a specified plan (Lot 7 on Plan 23298) and without any reference to total area, were to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. It may be noted that, on the uncontradicted evidence of Mrs Gambrell, at about this time, Mr Wade had subdivided the land on which the house the Gambrells occupied, telling Mrs Gambrell that this was to facilitate the transfer of the land to them following his death.
The 11 November 1999 Will also provided that specified parts or portions of Williams Locations, being respectively parts or the whole of the lands comprised in specified certificates of title, together specified as representing the balance of Merribah, other than the part disposed of to the Gambrells as I have just indicated, and a part disposed of as I will shortly indicate, were to go to Mrs Wade for her life and, after her death, to Mrs Shipley for her life if she survived Mrs Wade and, after the death of the survivor of Mr and Mrs Wade and Mrs Shipley, to such of the Gambrells as should then be surviving, and if, both survived, in equal shares.
The Gambrells were given an option to lease the balance of Merribah during the lifetimes of Mrs Wade and Mrs Shipley if they survived Mr Wade; and if the Gambrells exercised that option they were to be given 200 flock ewes.
The 11 November 1999 Will also provided that Mr Wade's real estate known as Greenville, described as specified Williams Locations and a portion of another, respectively being lands comprised in specified certificates of title, as well as a part of Merribah being specified Williams Locations and being the land comprised in a specified certificate of title, were to go to Mrs Wade for life or until the sale of Greenville, whichever was the earlier. During Mrs Wade's lifetime if she survived Mr Wade, Mrs Bergin was to have the option to lease Greenville excluding the residence, yard and outbuildings occupied by Mr and Mrs Wade and subject to the stud sheep, until they were sold, being run on Greenville. If Mrs Bergin exercised the option she was to be given 200 flock ewes.

If Mrs Wade sold Greenville then 40% of the proceeds were to go to Mrs Wade, 40% to Mrs Bergin, 10% to Mrs Lewis and 10% to Mrs Brown. If Greenville was not sold during Mrs Wade's lifetime, then on the death of the survivor of Mr Wade and Mrs Wade, Greenville was to go to Mrs Bergin subject to her paying $25,000 to each of Mrs Lewis and Mrs Brown.
The 11 November 1999 Will provided that within six months of Mr Wade's death, his interest in the stud sheep was to be sold and, after payment of debts and expenses, the balance was to go to Mrs Wade. There was the same provision as in the previous three wills for the brood mare and her progeny. The residuary estate was given to Mrs Wade without the other provisions in respect of the residuary estate found in the previous will.

The fifth will: 17 April 2000

The 17 April 2000 Will, like the 11 November 1999 Will, provided for the appointment of Mr Leong and Mr Brown as the executors. Compared with the previous will, similar, but not identical, provisions were made for the Gambrells and for Mrs Wade and Mr Wade's stepdaughters. The 17 April 2000 Will, unlike any of the previous wills, also provided for the children of the stepdaughters.
The 17 April 2000 Will provided that the same lot as in the corresponding provision in the 11 November 1999 Will (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. However, this was subject to payment of a weekly sum to Mrs Wade for the rest of her life, and the Gambrells were not to sell the land before her death.
The 17 April 2000 Will provided that the balance of Merribah, described as the same Williams Locations and portions of Williams Locations that was described as the balance of Merribah in the 11 November 1999 Will, with the exception of one Williams Location and a portion of another, was to be given for life to Mrs Wade. After the death of the survivor of Mr and Mrs Wade, specified Williams Locations and portions of Williams Locations from the balance of Merribah were given to such of the Gambrells as should then be surviving, and if, both survived, in equal shares, to Mrs Brown and to Mrs Lewis (including a portion of a Williams Location omitted from the description of the balance of Merribah).
The Gambrells were given an option to lease the balance of Merribah during the lifetime of Mrs Wade if she survived Mr Wade, and if they exercised that option, they were to be given 100 flock ewes.
The 17 April 2000 Will provided that the Williams Location omitted from the description of the balance of Merribah, was to be sold and the proceeds used to pay the debt owing to Elders at Mr Wade's death and the balance, if any, was to be an accretion to his residuary estate.
The 17 April 2000 Will provided that Greenville, described as the same Williams Locations and portions of Williams Locations as in the 11 November 1999 Will, was to go to Mrs Wade for life, and on the death of the survivor of Mr and Mrs Wade, to Mrs Bergin subject to her paying $25,000 to each of Mrs Lewis and Mrs Brown. During Mrs Wade's lifetime if she survived Mr Wade, Mrs Bergin was to have the same option to lease Greenville as in the 11 November 1999 Will, and if she exercised it she was to have 100 flock ewes.
The 17 April 2000 Will provided for the sale of the stud sheep and the disposition of the proceeds in very much the same terms as the 11 November 1999 Will, except that Mr Gambrell was given the organisation of the sale.
The 17 April 2000 Will provided that any sheep remaining after the other dispositions referred to, as well as farm plant and equipment in any partnership of which Mr Wade was a partner at his death, was to go to Mrs Wade for life with the Gambrells and Mrs Bergin to have options to lease one half each if they exercised their respective options to lease the balance of Merribah and to lease Greenville. On the death of the survivor of Mr Wade and Mrs Wade, the sheep and the farm plant and equipment were to go as to one half to such of the Gambrells as should then be surviving, and, if both survived, in equal shares, and the other half to Mrs Bergin.
There was the same provision in the 17 April 2000 Will as in the previous four wills for the brood mare and her progeny.
The 17 April 2000 Will gave the residuary estate to Mrs Wade in the same terms as the previous will.
Finally, the 17 April 2000 Will provided that if any of Mr Wade's stepdaughters died before him or before attaining a vested interest then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.

The sixth will: 5 February 2001

The 5 February 2001 Will, the first of two in that year, like the previous two wills, provided for the appointment of Mr Leong and Mr Brown as the executors. However, the 5 February 2001 Will was much simpler than any of the previous wills. By comparison with the previous two wills, it made lesser provisions for the Gambrells and Mrs Wade, and equal provisions for the stepdaughters.
The 5 February 2001 Will provided that the same Lot as in the corresponding provisions in the 11 November 1999 Will and the 17 April 2000 Will (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without provision for any payment to Mrs Wade or direction not to sell.
The 5 February 2001 Will provided that the residuary estate was to go to Mrs Wade for life, and then to such of Mr Wade's stepdaughters as should then be living and, if more than one, in equal shares. There was the same provision for the children of the stepdaughters as in the 17 April 2000 Will.

The seventh will: 19 March 2001

The 19 March 2001 Will, the second of 2001 like the previous three wills, provided for the appointment of Mr Leong and Mr Brown as the executors. The 19 March 2001 Will, like the 5 February 2001 Will, was relatively simple, but made greater provision for the Gambrells, correspondingly lesser provision for Mrs Wade, lesser provision for Mrs Lewis and correspondingly greater provisions for Mrs Bergin and Mrs Brown.
The 19 March 2001 Will provided that the same lot as in the corresponding provisions in the previous three wills (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without provision for any payment to Mrs Wade or direction not to sell. However, there was also a bequest to the Gambrells in the same terms in respect of the other parts of Merribah that had been given to them by the 17 April 2000 Will, but not by the 5 February 2001 Will (Lots 5 and 6 on Plan 23298), and with the addition of another Williams Location (Williams Location 295) referred to in the 11 November 1999 Will as forming part of the balance of Merribah, but not given them by any previous will, but not including one Williams Location that the 17 April 2000 Will had given them (Williams Location 235).
The 19 March 2001 Will provided that $50,000 was to go to Mrs Lewis, and the residuary estate to Mrs Wade for life and on her death to such of Mrs Brown and Mrs Bergin as should then be living and, if more than one, in equal shares. The 19 March 2001 Will also provided that if Mrs Brown or Mrs Bergin died before Mr Wade or before attaining a vested interest, then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.

The eighth will: 24 January 2002

The 24 January 2002 Will, like the previous four wills, provided for the appointment of Mr Leong and Mr Brown as the executors. The 24 January 2002 Will, like the previous three wills, was relatively simple, but made lesser provision for the Gambrells than the 19 March 2001 Will, but greater provision for them than the 5 February 2001 Will. Compared with the 19 March 2001 Will, the 24 January 2002 Will made correspondingly greater provision for Mrs Wade, no provision for Mrs Lewis and correspondingly greater provision for Mrs Brown and Mrs Bergin.
The 24 January 2002 Will provided the same bequest to the Gambrells as the previous will, but not including Williams Location 295 (that is, it provided a bequest to them of Lots 5, 6 and 7 on Plan 23298).
The 24 January 2002 Will made no bequest to Mrs Lewis.
The 24 January 2002 Will made the same provisions for the residuary estate and for the children of Mrs Brown and Mrs Bergin as in the previous will.
Mr Wade did not make another will until the Will of 21 February 2006.

Background: the Will of 21 February 2006

As I have indicated, it was not in contest that the Will of 21 February 2006 was valid when made. It was also not in contest that, if the Will of 21 February 2006 was not effectually revoked by the purported Will of 6 June 2006, or it was revived on 13 July 2006, it should be admitted to probate.
The Will of 21 February 2006, like the previous eight wills, revoked all previous wills of Mr Wade, and like the previous five wills it provided for the appointment of Mr Leong and Mr Brown as the executors.
It will be seen that in its dispositions to the Gambrells, Mrs Wade and Mr Wade's stepdaughters, it more closely resembles the 5 February 2001 Will, the earlier of the two wills of that year, than it does any of the other previous wills.
The Will of 21 February 2006, like the previous five wills, made a bequest of Lot 7 on Plan 23298 to such of the Gambrells as should survive Mr Wade, and if both survived him in equal shares, but like the previous three wills, without any provision for payments to Mrs Wade or a direction not to sell. The Will of 21 February 2006 also provided that of Mr Wade's interest in the partnership WJ & KI Wade, one half of the poll merino sheep in the partnership was given in specie to the Gambrells, with the balance of the partnership interest forming part of Mr Wade's residuary estate. There was no further provision for the Gambrells.
The Will of 21 February 2006, like the previous three wills, provided that Mrs Wade took a life interest in Mr Wade's residuary estate. There was no further provision for Mrs Wade.
The Will of 21 February 2006 provided that on Mrs Wade's death, there was to be a gift of $100,000 to Mrs Lewis; lands being the whole of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, apparently representing the balance of Merribah as it was then, were to go to Mrs Brown; lands being the whole of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, apparently representing Greenville, were to go to Mrs Bergin; and the residue of the estate then remaining was to go to such of Mrs Lewis, Mrs Bergin and Mrs Brown as had survived Mr Wade and were then living and, if more than one, in equal shares.
The Will of 21 February 2006, like the previous two wills, provided that if Mrs Brown or Mrs Bergin died before Mr Wade, or before attaining a vested interest, then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.

Background: the purported Will of 6 June 2006

I will describe the events following the Will of 21 February 2006, culminating in the execution of the purported Will of 6 June 2006, as well as some further events occurring before the execution of the Will of 21 February 2006 when I consider, in later sections of these reasons, the parties' submissions and the evidence relating to the matters of the capacity of Mr Wade to make the purported Will of 6 June 2006. For now I will describe the principal provisions of that document.
The purported Will of 6 June 2006, like the previous nine wills of Mr Wade, revoked all of his previous wills.
Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided that Mr Leong and Mrs Wade would be the executors.
Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided for a bequest of $10,000 to a named granddaughter of Mrs Wade, who it was common ground was a daughter of Mrs Lewis.
Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided that after only that one disposition, the residue of Mr Wade's estate went to Mrs Wade, if she survived him.
Unlike any of the previous wills, the purported Will of 6 June 2006 provided that in the circumstance that Mrs Wade did not survive Mr Wade, the remaining dispositions were made:
(1)a bequest of Lot 7 on Plan 23298 to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without any provision for payments to (the estate of) Mrs Wade or a direction not to sell. There was no further provision for the Gambrells. This was the first will under which provision for the Gambrells was made contingent on Mrs Wade pre-deceasing Mr Wade.
(2)a bequest to Mrs Bergin of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, corresponding to what appears to be the balance of Merribah that had been bequeathed to Mrs Brown by the Will of 21 February 2006.
(3)a bequest to Mrs Lewis of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, corresponding to what appears to be Greenville that had been bequeathed to Mrs Bergin by the Will of 21 February 2006, but with one lot so bequeathed to Mrs Bergin not included in that bequest to Mrs Lewis, being Lot 1 on Diagram 7088. It is not in contest that a codicil to the purported Will of 6 June 2006 was subsequently prepared to bequeath Lot 1 to Mrs Lewis; however, the codicil was never executed.
(4)the residue then remaining was to go to such of Mrs Lewis, Mrs Bergin and Mrs Brown as had survived Mr Wade, and, if more than one, in equal shares.
(5)Finally, in the circumstance that Mrs Wade did not survive Mr Wade and any of Mr Wade's stepdaughters died before him or before attaining a vested interest, then the purported Will of 6 June 2006 provided that such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.
I will consider the events following the execution of the purported Will of 6 June 2006, culminating in the purported revocation of that will on 13 July 2006, later in these reasons.
I turn now to the issues in this case. I begin by outlining the general principles applicable to admission of a will to probate.

The general principles applicable to admission of a will to probate

I did not understand the applicable principles discussed in this section of my judgment, to be in issue.
To be admitted to probate as the last will of an alleged testator, an instrument must be shown to be the will of the alleged testator. This entails the party propounding the instrument as the alleged testator's will establishing that the alleged testator had capacity at the relevant time to make a will, that the alleged testator had the intention by the instrument to make a will, and that the alleged testator knew and approved of the contents of the instrument. See Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2^nd ed) (1989) [301]; Bailey v Bailey [1924] VLR 294; (1924) 34 CLR 558, 570 (Isaacs J); Le Cras v Perpetual Trustee Co Ltd; sub nom Re Resch's Will Trusts [1969] 1 AC 514; [1967] 3 All ER 915; [1968] 3 WLR 1153, 547 (PC NSW); and Fisher v Kay [2010] WASCA 160.
Presumptions that there was such capacity, such intention and such knowledge and approval, arise from due execution of the instrument as a will: Fisher [85] (Owen JA, Buss and Murphy JJA agreeing) and authorities there cited. There is a presumption of due execution if a will, regular on its face, bears the signature of a testator and two witnesses: Fisher [83].
It was not in contest that the purported Will of 6 June 2006 gave rise to the presumption of due execution. In any event, I consider due execution was established on the evidence as to execution of the purported Will of 6 June 2006 that I review below.
There was no issue on the pleadings or otherwise as to testamentary intention, and in any event in my view the evidence as to the execution of the purported Will of 6 June 2006 established that intention.
In addition, the assent to the instrument may be vitiated by undue influence of another on the alleged testator or by any fraud. The burden in relation to these issues, as opposed to the preceding ones, lies on those seeking to impeach the instrument as a will. See Hardingham, Neave & Ford, (2^nd ed) [301], [312] and [314]. There was no issue on the pleading or in submissions as to fraud, although the plaintiff in submissions pointed to the form of the purported Will of 2006 as, it was submitted, masking the changes the instrument made to the pattern of provisions in the previous wills. However, I understood this submission to be pressed as going to testamentary capacity and knowledge and approval of the instrument, and I will return to it briefly in those contexts.
I consider first the law applicable the issue of testamentary capacity before turning to the evidence and making my findings on that evidence.
I then deal with the issues of knowledge and approval and undue influence.

Testamentary capacity in this case: the law applicable

I did not understand the applicable principles to be in issue.
I take the following, from Roebuck v Smoje [2000] WASC 312 [87] (Hasluck J) to be a sufficient general statement of the law as to the meaning of testamentary capacity:
In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said at 565 that in order to exercise the power of disposition by the execution of a Will a testator must understand the nature of the act and its effects; understand the extent of the property of which he is disposing; 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 delusions 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. The mere fact that the testator was eccentric or was subject to one or more delusions is not, of itself, sufficient.
This statement draws on Banks v Goodfellow (1870) LR5QB 549, 565 (Cockburn CJ), which is the 'classical exposition' (Hardingham, Neave & Ford, (2^nd ed) [306]); and see Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204 [15] (Beech J). All four aspects must be present for there to be testamentary capacity: see Public Trustee [15].
In the case of the plaintiff, the first and second aspects of testamentary capacity were said to be of particular significance.
In relation to the first aspect, that of understanding the 'nature of the act and its effects' (Roebuck [87]), I note the following, from Nicholson v Knaggs [2009] VSC 64 [97] (Vickery J):
However, in comprehending the nature of what the testator was doing, and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
I take from that passage that it is not sufficient an alleged testator was capable of understanding the nature of the act of making a will. The alleged testator must be capable of understanding the 'practical effect' of the 'central clauses' in the instrument propounded as his will.

In relation to the second aspect of testamentary capacity, that of understanding 'the extent of the property of which he is disposing' (Roebuck [87]), I note the following from Nicholson [99], quoting from Kerr v Badran [2004] NSWSC 735 [49] (Windeyer J) as follows:
As to understanding the nature and extent of a testator's property, a recent statement by Windeyer J in Kerr v Badran is instructive in the contemporary context:
'In dealing with the Banks v Goodfellow test it is, I think necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at an advanced age, problems which arise with age such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing 'the extent' of the estate is considered. This does not necessarily mean knowledge of each particular assets or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.'
I take from this that it is not necessary an alleged testator with substantial real estate assets had sufficient mental capacity to understand the detail as to them, such as their addresses or values; but his uncertainty as whether or not he still owned the substantial real estate assets of which the purported will disposed would point to lack of testamentary capacity.
As to the date as at which testamentary capacity must have existed it is established that if the testator had capacity at the time he gave instructions for his will to the solicitor, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see Hardingham, Neave & Ford (2^nd ed) [308]; and Roebuck [86]. Where, however, the instructions were not given by the testator directly to the solicitor, the law appears to be that the relevant date is that of the execution of the will, unless the court can be satisfied there is no ground for suspicion, and there are unambiguous instructions to the intermediary clearly understood by that person and faithful reporting of the instructions correctly understood by the solicitor: Hardingham, Neave & Ford, (2^nd ed) [308]; and Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152, 168 ‑ 169.
In this case it is common ground that Mr Wade did not give such instructions, but rather they were given by Mr Lewis. In respect of Mr Lewis, there is the ground of suspicion that, about one month after the execution of the purported Will of 6 June 2006, he approached a solicitor to attend to the implementation of an agreement for Mr Lewis to take a transfer with Mrs Lewis from Mrs Wade of certain of the farmlands she was to take under that will. I return to that approach and related evidence later in these reasons. It further appears to be common ground that Mr Lewis gave the instructions for the purported Will of 6 June 2006 on or about 2 June 2006 (see exhibit 45, a record of a meeting which Mr Lewis attended with the solicitor who took his instructions).
However, there is no clear evidence as to when Mr Wade communicated his wishes to Mr Lewis on which those instructions were based, nor of the terms in which those wishes were expressed, other than what had been reported by Mr Lewis himself, that Mr Wade believed he had made a 'mistake' in his previous will and he wished to 'correct it by bequeathing this land' to Mrs Wade (see exhibit 95, an email to the solicitor from an officer in the firm of accountants used by Mr Lewis). On that evidence, it does not seem to me that I am in a position to refer to any other date than the date of execution of the purported Will of 6 June 2006 as that for the establishment of Mr Wade's testamentary capacity. Nor was the contrary strongly pressed on me.
I have said that there is a presumption of testamentary capacity that arose from the due execution of the purported Will of 6 June 2006. However, when the evidence as a whole is sufficient to throw a doubt upon the alleged testator's testamentary capacity, then there is no room for the presumption to operate and 'the question is whether, on the whole of the evidence, the plaintiff has discharged its onus as to the testator's capacity': Public Trustee [19] referring to Bull v Fulton [1942] ALR 221; (1942) 66 CLR 295, 343 (Williams J).
In this case, as I will indicate, the evidence as a whole is sufficient to throw a doubt upon the alleged testator's capacity. That doubt arises in particular from the following evidence:
(1)the evidence of those present at the execution of the purported Will of 6 June 2006, other than Mrs Wade, being the attesting witnesses to the purported Will of 6 June 2006, and of Mr Leong, who summarised to Mr Wade its central clauses;
(2)the evidence of Mr Wade's exchange with the solicitor who had prepared a number of his previous wills for him, and who saw him on 24 May 2006, when he indicated a wish make a new will;
(3)the evidence of the medical experts; and
(4)the nature of the changes to Mr Wade's previous testamentary arrangements when considered with the other three bodies of evidence.
Further reason to doubt is supplied by the change in the way Mr Wade made the purported Will of 6 June 2006, when that change is considered with the evidence in (4).
I conclude that on the evidence referred to, considered with the relevant evidence as a whole, the defendant, as the proponent of the purported Will of 6 June 2006, has not discharged her onus as to Mr Wade's capacity.
In arriving at these conclusions, I note the guidance from the following authorities.
In Nicholson [41], Vickery J said this:
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.
In Roebuck [92], Hasluck J said this referring to the judgment of Isaacs J in Bailey:
Isaacs J said further that in order to displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was, in fact, exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. While the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions. Where instructions for a Will are given on a day antecedent to its execution, the former is by long established law the crucial date.
Finally, as to the terms of the purported Will of 6 June 2006, I note the following from Brown v McEnroe (1890) 11 NSWR Eq 134, 138 (Owen J, CJ in Eq):
Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide. When once the Court is satisfied that the testator was of sound and disposing mind, and understood the contents of his will, it will not consider the nature of the dispositions made, nor take into consideration any injustice or cruelty that may be apparent. Such injustice or cruelty is only a circumstance to be considered in ascertaining the soundness or unsoundness of the testator's mind, but is no ground for setting aside the will of a capable testator.
I consider that the reference in Brown v McEnroe to 'fuller and clearer evidence' should be understood, not as one to a 'particular species of proof to satisfy the onus', but rather to the need, when the doubt as to capacity arises such that the presumption of capacity can no longer be relied upon, to establish by 'clear and satisfactory proof' that the testator had capacity. See Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J, on the presumption of knowledge and approval, returned to below). The standard of proof is the ordinary civil standard of the balance of probabilities. However, in approaching the question whether that burden is discharged, the court must exercise the 'caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence': Kantor v Vosahlo [2004] VSCA 235 [22], quoted in Nicholson [92]: see also [93] ‑ [94] (on testamentary capacity) and Roebuck [93] (on knowledge and approval).
I also note the following, from Bool v Bool [1941] St R Qd 26, 39 (Full Ct, Macrossan SPJ) quoted with approval in Nicholson [573]:
A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.
I consider those two authorities indicate that a great change of testamentary disposition that is unexplained, particularly where the departure is from a pattern of prior testamentary dispositions which indicates those for whom the testator considers himself morally bound to provide, requires fuller and clearer evidence of testamentary capacity.
I turn now to the evidence of the four kinds referred to, as well as other evidence to which the parties drew my attention as bearing on Mr Wade's testamentary capacity.

The evidence of those present at the execution of the purported Will of 6 June 2006

In the late afternoon of 6 June 2006, the purported Will of 6 June 2006 was executed at the office of Mr Leong in Narrogin. At 4.30 pm, Mrs Lewis had brought Mr and Mrs Wade to that office and had left. Mr Leong had in the presence of two employees of his practice, who served as the attesting witnesses, as well as of Mrs Wade, provided an explanation of the instrument to Mr Wade. Mr Wade had then signed the instrument on all of its pages after Mr Leong had corrected a misspelling of his name in it, and each of the two attesting witnesses then added their signatures to that of Mr Wade.
The only persons present during these events, apart from Mr Wade, were Mrs Wade; Mr Leong; and the two attesting witnesses, Leonie Marie Holtfreter and Philip Kiam Beng Ong. All of those last four gave evidence at the trial.
For reasons which will become apparent, I leave aside for the time being Mrs Wade's evidence as to those events.
I note in particular the evidence of Mr Leong, Ms Holtfreter and Mr Ong, as to the nature of Mr Leong's explanation of the purported Will of 6 June 2006; as to the response of Mr Wade when he was told that the Gambrells might miss out on the lands provided for them under that instrument; and as to whether Mr Wade showed any sign of uncertainty concerning the extent of the estate of which the instrument would dispose.
I find the evidence establishes that Mr Leong had read out word‑for‑word some, but not all, of the contents of the purported Will of 6 June 2006.
Mr Leong's evidence was that he explained the instrument 'on a clause‑by‑clause basis of the main provisions' but 'did not read each clause word‑for‑word'; however, he 'explained each clause to Bill and sought his confirmation that it was what he wanted' (witness statement, exhibit 85 [19]; see also [22] and [36]). In the course of so doing he read some clauses out word‑for‑word while for others he provided a 'general outline' (cross‑examination, ts 585). His evidence was also that he did not read out or summarise the rest of the instrument coming after the clause for the substitution, for any of Mr Wade's stepdaughters who predeceased him, of their children; this was other than to say to Mr Wade that the clauses 'provided various powers to the trustees' (exhibit 85 [35], [36]; see also ts 589).
Mr Ong, when asked in cross-examination whether or not Mr Leong read out every clause of the instrument or 'read out' a summary of each one, replied:
‑ ‑ ‑ The relevant section, not every one.
Not every clause ‑ ‑ ‑ Not every clause but only the relevant section to explain to ‑ what that clause mean (ts 557).
Mrs Holtfreter's evidence was that Mr Leong 'read through the main provisions of the new will' (witness statement, exhibit 43 [18]).
I also find the evidence establishes that, in the course of describing to Mr Wade the contents of the instrument, Mr Leong explained to Mr Wade the possibility that the Gambrells might not get farmlands from Mr Wade's estate if he predeceased his wife, to which Mr Wade reacted with some concern. I further find that Mr Wade presented to the three witnesses as not having understood that possibility, despite repetition by Mr Leong of that explanation.
Mr Leong's evidence was that, when he explained to Mr Wade that if Mrs Wade died before him certain farmlands would go to the Gambrells, Mr Wade replied with words to the effect he 'always wanted to give them that land', adding the land consisted of '73 acres and a building' and the Gambrells had 'been loyal and good employees for many years and I always wanted to reward them' (exhibit 85 [24]). Mr Leong then said to Mr Wade that if he died before Mrs Wade 'the Gambrells may not get the 73 acres because Kath's will decides who gets what', at which 'Bill looked concerned', and Mrs Wade said words to the effect that 'The Gambrells are only employees and have been well paid and well looked after' (exhibit 85 [25]).
Mr Leong then asked Mr Wade three times if it was his intention to leave everything to Mrs Wade except for $10,000 to Ms Lewis, to which Mr Wade responded 'Yes', after which Mr Leong said to Mr Wade that 'everything was left to [Mrs Wade] she could deal with all of the properties in her own will', to which he responded by saying 'Yes' (exhibit 85 [26] ‑ [28]).
In his cross‑examination, Mr Leong testified as to this final exchange as follows (ts 588):
And did you repeat what you'd said that if everything went to Kath that the Gambrells might miss out?---Yes, I repeat that question to him the Gambrells may still not get the land, right, if everything go to Kathleen and she can deal with all the land - or not (indistinct) that she can deal with everything. All the problems, whatever associated with it.
And what if anything did Mr Wade say to that?---He thought about it, and he still a bit confused, but I ask again, right. Eventually he nodded his head.
And you took a nod to mean what?---To mean that it's a yes. Whether or not he comprehend it I don't know.
While Mr Leong's evidence was that Mr Wade 'seemed to be very clear in his mind that he would leave everything except $10,000 to [Mrs Wade]' (exhibit 85 [32]), his evidence was also that 'I could not tell whether Bill understood fully that the Gambrells may miss out on the 73 acres' (exhibit 85 [33]).
His evidence was also that he returned to the topic on going through the instrument 'a second time' (exhibit 85 [37]), again telling Mr Wade 'that everything would go to [Mrs Wade] and that there was a possibility the Gambrells won't get any land' (exhibit 85 [38]). Mr Wade's response to that was on Mr Leong's evidence as follows (exhibit 85 [39]):
Bill hesitated and said words to the effect of 'I want to give the Gambrells some land as they are long‑term employees'.
Mr Leong's evidence of the ensuing exchange was as follows (exhibit 85 [40] ‑ [41]):
I again explained to Bill that Kath may deal with the land as she wishes and it is up to her to decide. Bill responded by saying 'Yes' or nodding his head.
I then said to Bill word [sic] to the effect of 'Do you want to proceed with signing the will?' Bill said 'Yes'.
In cross‑examination, Mr Leong was asked to state whether he was concerned that Mr Wade at the point of signing the purported Will of 6 June 2006 was still concerned in relation to the possibility that the Gambrells might miss out and, if so, what was the basis for Mr Leong's concern. Mr Leong testified as follows (ts 592):
- ‑ ‑ Concern that what he say ‑ the first thing he say about it is it's Gambrell's land that he was concerned about, that he wanted Gambrells to get the land and he didn't expect the will can preclude Mr Gambrell from getting the land.
When did he say that?---When I mention that if he die first everything will go to Kath and Mrs Kath Wade's will will decide who will get what and the Gambrells may not get the land.
Did he say that again at about the time he signed the will?---No, because he probably didn't remember.
I took from this evidence that Mr Wade's repeated reference to the Gambrells getting the farmland, notwithstanding him repeatedly being told that they might not, gave rise to Mr Leong's concern that he testified to, a concern that existed at the point of Mr Wade signing the purported Will of 6 June 2006. That concern existed even though Mr Wade had not said, or otherwise indicated, anything further on the matter at the later point.
Mr Ong's evidence was of Mr Wade saying 'that Les Gambrell had been a very good employee all of the time and he wanted to reward him', and when Mr Leong explained to Mr Wade that 'if he signs the will he will be giving all of the farms to Mrs Wade and it may not go to that employee', Mr Wade was 'showing concern' (witness statement, exhibit 82 [14]). Mr Ong testified in cross‑examination that, when Mr Leong said that, Mr Wade showed 'confusion' by indicating 'just that he wanted to mention something about the rewarding to this worker' (Mr Gambrell) (ts 557). Mr Ong also testified that Mr Wade signed the purported Will of 6 June 2006 notwithstanding that confusion, as well as his confusion with respect to his lands, to which I come next. Mr Ong so testified as follows, after he had had his attention drawn to the file note dated 6 June 2006 (exhibit 83) which he had prepared following the signing of the instrument (ts 568 ‑ 569):
How can you say in your notes that he was very clear in his mind to leave everything, except 10,000 to Emma Lewis, to Kathleen, if he's confused about the ‑ ‑ ‑?---Because of all the confusion he still signed the will.
He still signed ‑ ‑ ‑?---I mean I'm sure he's clear in his mind to ‑ ‑ ‑
Your last sentence in your note?---Yes.
Says, 'He probably did not understand the implications of the 73 acres that the Gambrells may miss out'?---Yes. Probably he doesn't understand, that's why he still signed the will.

At the same time I note that Mr Ong testified that Mr Wade had not said anything at the point of signing the purported Will of 6 June 2006 that caused Mr Ong to say in his witness statement (exhibit 82) that Mr Wade 'probably did not understand the implications of the 73 acres that the Gambrells may miss out' (re‑examination, ts 571). However, in my view, Mr Ong's evidence taken as a whole was of his belief as to Mr Wade's lack of understanding at the point of signature of the instrument, and this belief was because of the terms of Mr Wade's response to Mr Leong's explanation.
Ms Holtfreter's evidence was that when Mr Leong read out the terms of the gift of the land to Mr Gambrell, Mr Wade spoke 'about how he wanted Les to have the land mentioning 70 acres' (witness statement, exhibit 43 [20], [21]). Her evidence was also that Mr Leong then explained 'on a number of occasions' that, if Mr Wade died before Mrs Wade, everything except $10,000 would go to Mrs Wade, to which Mr Wade replied, although Mrs Holtfreter was uncertain whether or not the reply was 'yes' (exhibit 43 [23], [24]). Mrs Holtfreter was cross‑examined as to whether she had any reason to believe Mr Wade did not understand Mrs Wade would get all of the estate except for $10,000 if Mr Wade predeceased her, and her attention was drawn to her other evidence that when Mr Wade said he wanted Mr Gambrell to have the land, Mrs Wade had shaken her head, and said 'quietly' that Mr Gambrell was paid a good wage and his accounts were paid for (exhibit 43 [22]). She testified as follows (ts 297, emphasis added):
You had no reason to believe on that day, 6 June, that Mr Wade did not understand that the effect of the will was that all of his estate would pass to Mrs Wade except for a $10,000 bequest to Emma Lewis?---Yes.
You had no reason to believe that he - he understood that, didn't he? You had no reason to believe that he didn't understand that?---Only that he kept on talking about Les.
Yes, but Mrs Wade made clear that as far as she was concerned Les had been looked after by pay and whatever?---That's what she - I don't think that Bill heard her, Mr Wade heard her, because she didn't say it all that loud.
So what caused you to feel discomfort about what you observed on 6 June was you didn't know if Mr Wade appreciated that if Mrs Wade inherited his entire estate the Gambrells might miss out?---Yes, that's right.
And it wasn't anything to do with Mr Wade's capacity to understand that he was giving everything to his wife save for the $10,000 bequest to Emma Lewis. They were unrelated issues. Isn't that correct?---Yes.
I have noted Mrs Holtfreter's evidence that she did not think Mr Wade had heard Mrs Wade's words as 'she didn't say it all that loud', as well as the evidence from Mr Leong (see ts 585), which might indicate that Mr Wade and Mrs Wade were not sitting directly alongside one another. I also note that Mr Leong's evidence was that he heard Mrs Wade's words, as I have indicated, which might tend to indicate they would have been audible to Mr Wade. However, there was also evidence from a medical report on an examination of Mr Wade on 20 June 2006, by a Dr Clarnette, a medical report to which I return below, that Mr Wade was 'hard of hearing' (exhibit 73).
I understood Mrs Holtfreter's evidence to be to that, because of Mr Wade's repeated references to Mr Gambrell, she did not know if Mr Wade understood the possible implication for the Gambrells of the disposition to Mrs Wade, notwithstanding that Mr Leong had explained to Mr Wade on several occasions that Mrs Wade would get everything after the bequest of $10,000.
Counsel for the defendant in closing oral submissions addressed the repeated references by Mr Wade as to be explained by the fact that provision for the Gambrells had been in his mind for many years. However, counsel submitted, when Mrs Wade had said the Gambrells had been looked after by pay and otherwise, Mr Wade should be seen to have accepted that. On the evidence of both Mr Leong (exhibit 85 [25]) and Mrs Holtfreter (exhibit 43 [22]), I accept that Mrs Wade said words to that effect when the possibility of the Gambrells missing out came up. Counsel put it to me that it was in the natural course of human experience to expect those words to have been directed to Mr Wade, and, given where he was sitting in the room relative to Mrs Wade, it was likely he had heard them.
While I accept that it was likely Mrs Wade directed those words to Mr Wade, and accepting arguendo against the evidence of Mrs Holtfreter above, that Mr Wade heard those words notwithstanding the evidence he was hard of hearing, I note that it was the evidence of Mr Leong that, subsequently in his exchanges with Mr Wade and before he signed the purported Will of 6 June 2006, as I have indicated, Mr Wade said, in response to Mr Leong telling him there was the possibility the Gambrells would not get any land, that he wanted 'to give the Gambrells some land as they are long-term employees' (exhibit 85 [39]).
It seems to me that the evidence of Mr Wade's persistence in making a response of this kind after the repeated advice of Mr Leong, and after hearing what Mrs Wade had to say, if he had heard that, was a matter going to show a lack of understanding of the effect of a central provision in the instrument.
I should add that Mr Wade's persistence, while also nodding after Mr Leong's repeated explanations, might be explained by the structure of the purported Will of 6 June 2006, as put to me by counsel for the plaintiff. That structure had points of similarity to previous wills to the extent it did provide for the Gambrells. I would add that in that respect, it was unlike the proposed will which was discussed with Ms Everett at the meeting of 24 May 2006, under which Mrs Wade would take all of Mr Wade's estate absolutely. I consider this meeting below. The way in which the purported Will of 6 June 2006 provided for the Gambrells was, however, unlike any of the previous wills, as I have indicated and will return to below. Whether or not that was the source of Mr Wade's confusion, it seems to me that the evidence establishes that Mr Wade did not understand that change from his previous wills.
I do not consider that I am in a position to address the possibility, also put to me by counsel for the plaintiff, that the responses by Mr Wade might also be explained by the 'Noddy syndrome' in the elderly. I was referred to the discussion of this syndrome in Nicholson [382], [383], as follows:
Dr Lloyd drew attention to the syndrome of 'gratuitous concurrence' in elderly patients, which he described as the 'Noddy syndrome'. This may arise where an elderly person will agree with questions put to him or her in order to placate, comply with, or ingratiate themselves with a person in authority, in this case the lawyer conducting the interview. It may also occur when the elderly person seeks out of embarrassment to mask their incapacity to understand what to the lawyer appears to be a simple concept, or simply to avoid causing what is perceived by the testator to be a problem.
An analogy may be drawn with the widely recognised tendency for some Indigenous Aboriginal witnesses to adopt this approach. In R v Anunga [(1976) 11 ALR 412 at 414] Foster J explained the propensity in the following terms:
'[M]ost Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman.'
However, in this case I do not have medical evidence of the kind to which Vickery J referred in Nicholson. Nor is it apparent to me that I am in a position to take judicial notice of the syndrome described, as I am not satisfied the syndrome is notorious in the sense required for judicial notice to be taken of it: see Heydon JD, Cross on Evidence (8^th ed, Australia) (LexisNexis 2010) [3015]. Nor is it apparent that the syndrome is part of the teachings of the ordinary experience of life: see Cross on Evidence [3200] ‑ [3285] on such teachings being employed in decision making in the courts.
I should add that I do not give any significant weight to the fact that the three independent witnesses allowed Mr Wade to sign. All of them, it seems to me, had indicated that they had doubts as to his understanding of purported Will of 6 June 2006, in this respect and also the respect I will next discuss. However, it is accepted law that where there are doubts as to the capacity of a testator, the will may still be made, but appropriate records should be kept so that the matter can be determined in the appropriate proceedings: see Ryan v Public Trustee [2000] 1 NZLR 700, 718 (Ellis J); and Public Trustee v Till [2001] 2 NZLR 508 [18], [19] (Randerson J).
As to any signs of uncertainty Mr Wade showed as to the extent of the estate of which the purported Will of 6 June 2006 would dispose, I find that Mr Wade showed persistent confusion as to dispositions of farmlands in that will, as he was uncertain as to whether or not he had previously disposed of the farmlands to which those dispositions related. Those farmlands were the bulk, or at least a substantial part, of his estate.
Mr Leong's evidence was that when he explained to Mr Wade that after the gift of the $10,000 and the payment of debts and expenses by his executors the rest of the estate 'including farmlands' would go to Mrs Wade, Mr Wade 'appeared to be confused as he thought the farmlands had already been transferred but he could not be sure to whom', although when Mr Leong asked him about this, Mr Wade could not remember signing any transfer documents (exhibit 85, [22], [23]). Mr Leong also testified that it was when he summarised the gift that the instrument made to Mrs Bergin of the farmlands which as I have indicated earlier comprised the remainder of Merribah, Mr Wade 'began ‑ seems to be confused, because according to my note he thought that all the land has been sold' (ts 588). The 'note' Mr Leong was referring to was the notes dated 8 June 2006 that Mr Leong prepared concerning the events at the signing of the purported Will of 6 June 2006 (exhibit 86). The matter was pursued in the cross‑examination as follows (ts 588 ‑ 589):
Yes, he thought it had been transferred?---Yes, and I was a bit sort of uncertain that is the case or not, so I asked him if he had signed any documents regarding transfer of land and he couldn't be sure.
He couldn't be sure?---Yes, he couldn't be sure.
What did you do next?---Then I had to check to see if - just refer back to my note there.
Yes?---Yes. On 427, page 427, note number 3, so I said, 'Leave the rest, including farmlands, to Kath?' He nodded his head and then I made a note that he appeared to be confused as he thought the farmlands had already been transferred.
Mm'hm?---So I checked with Bill to confirm that he didn't sign any transfer and sell farmlands, that all farmlands are still in his name.
What, if any, response did he make to that?---I think he was still confused; but then I know that there's no sale because in doing the tax it would have shown up if there was any sale.
I have referred to previous dispositions of portions of Merribah, including a sale to Mr and Mrs Brown in early 2005. I further note Mr Leong's evidence that Mr Wade did not recognise the location numbers mentioned in the purported Will of 6 June 2006 (ts 589). However, in my view, Mr Leong's evidence goes beyond matters of understanding as to the details of the farmland constituents of Mr Wade's estate. Mr Leong's evidence of Mr Wade's confusion arising out of his erroneous belief he had already disposed of the farmland holdings of which the purported Will of 6 June 2006 would dispose goes to show Mr Wade's lack of understanding of the extent of his estate. That belief, on Mr Leong's evidence, did not change when, under further questioning by Mr Leong, Mr Wade admitted he could not be sure whether or not he had signed any transfer documents.
Mrs Holtfreter's evidence as to these matters included the following (witness statement, exhibit 43 [24], [25] and [26]):
Finally, Bill said something to the effect of that he was confused about where certain parcels of his land were, and if they had already been transferred. I can't remember the exact words, but I do remember that this was unexpected in the context of the conversation.
I heard [Mr Leong] ask Bill whether he had signed any transfers of land, and Bill replied 'no'.
After that, they executed the Will.
Mr Ong's evidence was that 'Mr Wade showed some confusion particularly about the farms to go to Mrs Wade and Mr Leong explained to him the effect of the will' and that 'Mr Wade showed some confusion about whether he had sold some of his farmlands' (witness statement, exhibit 82 [10], [11]). Mr Ong elaborated slightly on this evidence in cross‑examination as follows (ts 558):
In paragraph 11 of your statement you've said Mr Wade showed some confusion about whether he had sold some of his farmlands. How did Mr Wade show some confusion in regard to the sale of the farmlands?---He said, 'Oh, has that been sold?' He say - he said, 'Has that land been sold?' That's why he was confused. He thought he ‑ he thought some of the land been sold.
What happened next?---That's why he say ‑ ‑ ‑
And what happened next?---He just - some concern, that's all what ‑ ‑ ‑
Mr Ong's evidence was also that Mr Leong 'asked if Mr Wade remember signing anything regarding the transfer of farmlands' and that Mr Leong 'explained about the farmlands that had been sold' (exhibit 82 [12]). The reference to that explanation is difficult to reconcile with Mr Leong's evidence, which, as has been seen, was that his records showed no sales; indeed, Mr Leong testified that the transfer of portions of Merribah to Mr Brown had not gone 'through our office' (cross‑examination, ts 589). However, Mr Ong maintained his evidence in respect of Mr Leong's explanation as to lands sold while acknowledging it did not appear in Mr Ong's notes dated 6 June 2006 (exhibit 83) (cross‑examination, ts 559 ‑ 563).
At the same time, Mr Ong also testified that Mr Wade's being 'confused in regard to whether some land had been transferred to others' was part of 'all the confusion' to which he was still subject when he signed the purported Will of 6 June 2006 (cross‑examination, ts 568).
In relation to the evidence of Mr Leong, Mr Ong and Mrs Holtfreter, counsel for the plaintiff directed my attention to the evidence of Mr Leong that on 8 June 2006 he had suggested to the other two that they create notes about the signing of the purported Will of 6 June 2006. On 8 June 2006, he had prepared his own note (exhibit 86) when Mrs Holtfreter had stated to him she had concerns about the signing (cross‑examination, ts 592 ‑ 593). He testified that that was the only time he had made such a suggestion in 50 to 100 will signings he had been involved in, and the first time witnesses he had used had prepared notes and 'expressed concern' (ts 593). He further testified that, when he made the suggestion to Mrs Holtfreter, she had indicated she had already made such a note (ts 593): that note dated 7 June 2006 was exhibit 41. I have previously referred to Mr Ong's note (exhibit 83), the date on which, 6 June 2006, which Mr Ong testified was the date on which he compiled that note (examination‑in‑chief, ts 553), is inconsistent with Mr Leong's evidence.
In my view I should not draw anything of significance from Mr Leong's evidence as to the circumstances under which the file notes were prepared. Those circumstances at most indicate that Mr Leong and Mrs Holtfreter had significant concerns as to what happened at the signing of the purported Will of 6 June 2006. However, it is the nature and bases of the concerns on evidence before me that are of significance to me.
That nature and those bases as I have reviewed them above, in my view, at the least tend to throw a substantial doubt upon Mr Wade's testamentary capacity by reference to his capacity to understand the 'practical effect' of the 'central clauses' (Nicholson [97]; see also Roebuck [87]) of the purported Will of 6 June 2006 in respect of the disposition of the farmlands, which under the instrument the Gambrells took only if Mrs Wade predeceased Mr Wade but which otherwise went to Mrs Wade. That nature and those bases, in my view, also at the least tend to throw a substantial doubt upon Mr Wade's testamentary capacity by reference to his capacity to understand 'the extent of the property of which he is disposing' (Roebuck [87]; see also Kerr [72]), being his substantial farmlands.
However, this conclusion must be subject to my evaluation of the evidence of Mrs Wade, who was the other person, present at the time of signing of the purported Will of 6 June 2006, apart from Mr Wade, Mr Leong, Mrs Holtfreter and Mr Ong.
Mrs Wade's evidence was that Mr Leong 'read through all the will with Bill' (witness statement, exhibit 76 [37]), and in her testimony she appeared to state that he did not repeat any of that reading out (cross‑examination, ts 528). This evidence is inconsistent with that of all of the other witnesses
Mrs Wade's evidence was also that Mr Wade 'was very clear about things that day and at the signing of the will' (exhibit 76 [38]), and when she was asked whether or not he showed any confusion 'at all' she responded (cross‑examination, ts 529) 'No, not a bit'. She testified as to any mention to Mr Wade that the Gambrells might not get the farmlands referred to in the instrument, and as to whether Mr Wade showed any confusion as to his farmlands, as follows (ts 529):
When Joseph was explaining it to you, did it come up anywhere that the Gambrells might not get their land, the 70 acres?---No.
It never came up?---No.
…
Did Bill become confused about whether some land had been transferred?‑--No, he didn't say anything to me about it.
He didn't say anything at the signing of the will about not knowing whether some parcels had been transferred to others?---No, he just listened to him and Joseph stopped every now and then. He said, 'Is this right, Bill?' and he says yes.
That body of evidence, as to the lack of any indication by Mr Wade at any point of any confusion in relation to the effects and coverage of the purported Will of 6 June 2006, is also inconsistent with the evidence of all of the other witnesses.
I would not accept Mrs Wade's evidence in these respects in preference to that of the other witnesses, the independence of none of whom is in contest before me. Mrs Wade gave her evidence with confidence; however, I must note that she gave confident evidence that was clearly self-contradictory at one point, concerning whether she was helped by Mr Lewis, as follows (cross‑examination, ts 497):
Did Bill Wade ever say to you that Ray Lewis exerted too much influence?---I don't - well, Ray's never helped me.
But did Bill ever say words of that kind to you, that Ray exerted too much influence over you?---No, he did not.
Never?---No. And I don't know how I'd get on without him, really.
It became evident to me, from her evidence in the present context, and other evidence I will reach below of a meeting with a solicitor on 24 May 2006, that her evidence could not always be taken as reliable in matters of particular relevance to her case in these proceedings. I have noted for this purpose that on the day before the trial, I appointed a guardian ad litem for Mrs Wade on the finding that she lacked the capacity to instruct her solicitors in these proceedings. That finding was based in part at least on evidence as to her difficulties then in recalling matters, a number of which she was present in relation to the purported revocation of the purported Will of 6 June 2006. While that appointment does not of itself mean her evidence should not be accepted, I am of the view that it is a reason for me to approach her testimony at the trial, including her adoption of her witness statement (exhibit 76), with caution.

Here the plaintiff's case is a circumstantial one, in my view. I am unable to see any direct evidence of the exercise of testamentary undue influence in the matter relied upon by counsel for the plaintiff as such evidence, being the evidence of the agreement by Mrs Wade to transfer farmlands to Mr and Mrs Lewis and its background to which I have previously referred. The pleaded particulars from which a more probable inference in favour of testamentary undue influence of Mr and Mrs Lewis on Mr Wade is to be drawn were their care of him prior to his signing the purported Will of 6 June 2006; his age and frailty at that time; the change in the testamentary dispositions relative to those of the Will of 21 February 2006 made by the purported Will of 6 June 2006 in favour of Mrs Lewis and against Mrs Brown; the fact that instructions for the purported Will of 6 June 2006 came from Mr Lewis; the condition of Mr Wade at the meeting with Ms Everett on 24 May 2006; Mr Wade's failure, when he met alone with Ms Everett, to confirm the instructions for the will that were given by Mr Lewis and Mr Wade's description of different provisions; and Mr Wade's conduct, which I reach below, in seeking to revoke the purported Will of 6 June 2006.
The plaintiff's case at the trial rested heavily on the evidence of the position of power Mr and Mrs Lewis had which would have enabled them to overbear Mr Wade's will; on the circumstantial evidence of the exercise of that power I will reach below; and the circumstantial evidence of the obtaining of the execution of the purported Will of 6 June 2006 thereby. A showing of such power exercised with that effect would establish testamentary undue influence: Hayden v Bond [2003] WASC 96 [61] (Barker J), quoting from West Australian Trustees Ltd v Poland (Unreported, WASC (Kennedy J), Library No 7000, 6 January 1988).
As to the evidence of the position of power to overbear Mr Wade's will, the plaintiff relied on the unchallenged evidence from Mrs Gambrell that Mrs Wade and Mrs Lewis were constantly with Mr Wade after his discharge from hospital on 8 May 2006 following Mr Wade's gall bladder operation; and the evidence of Mrs Gambrell, Mr Gambrell and Mr Brown that Mr Wade had become frailer after that operation. It was not in contest that after that operation Mr Wade became increasingly dependent on Mrs Wade and Mrs Lewis, who moved in to live with Mr and Mrs Wade to help look after him. It was also suggested that Mr Wade's dependence on Mr and Mrs Lewis included an economic aspect, and I was directed to evidence Mr Wade was concerned about his financial position at about the time when on 7 June 2006 a cheque shown as a loan from Mr Lewis for $100,000 was banked in the partnership bank account for Mr and Mrs Wade, after Mr Wade had indicated Mr Lewis had provided him with such an amount. See the witness statement of Mrs Gambrell which was her examination‑in‑chief in the trial (exhibit 55 [40]); the copy of the bank statement for the partnership WJ & KI Wade 1 June 2006 ‑ 28 June 2006 (exhibit 56); and the letter dated 6 July 2006 (exhibit 47). I consider this to be evidence that Mr Wade did indeed come to have a measure of financial dependence on Mr and Mrs Lewis.
A position of power sufficient to overbear the will of a person is of course not sufficient for testamentary undue influence. And the nature of the carer relationship in this case might go to explain an increased provision for Mrs Wade and indeed, on the evidence in the instructions of 6 July 2006 (exhibit 47), through Mrs Lewis's provision for Mr and Mrs Wade, as a 'sentiment of gratitude for past services' (Hall (482)).
As to the exercise of the power to overbear Mr Wade's will with the effect of obtaining the purported Will of 6 June 2006, the plaintiff relied on the evidence of the response of Mr Wade to the instructions for a will put forward by Mr Lewis at the meeting with Ms Everett of 24 May 2006, and the contents of the purported Will of 6 June 2006 executed a short time later. These contents reflected a set of arrangements, in their contingent provision for the Gambrells, in their unrestricted provision for Mrs Wade and in their failure to make provision for his stepdaughters if Mrs Wade survived Mr Wade, that were at odds with the sentiments expressed that short time earlier. Further, the $100,000 referred to was paid into the partnership account a day after execution of the purported Will of 6 June 2006 (see exhibit 56).
In assessing this body of evidence to determine whether or not to conclude the inference of testamentary undue influence should be drawn at the civil standard, I have noted the approach for such an assessment referred to in Nicholson where Vickery J considered and quoted from Briginshaw v Briginshaw [1938] ALR 334; (1938) 60 CLR 336, 362 (Dixon J) and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170, 450 (Mason CJ, Brennan, Deane and Gaudron JJ). In Nicholson Vickery J said this at [128] ‑ [130] (footnotes omitted):
To this should be added the approach laid down in Briginshaw v Briginshaw where Dixon J said:
'But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
More recently, the majority (Mason CJ, Brennan, Deane & Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, crystallized the Briginshaw approach in the following statement:
'[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.'
I consider that is the approach I must follow, applied to all of the relevant evidence, including that evidence I have referred to: see Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J), quoted in Nicholson [123]. In doing so I have taken account of the fact that Mr and Mrs Lewis were not present at the execution of the purported Will of 6 June 2006, as counsel for the defendant reminded me. However, I have also noted that Mrs Wade was present at that time, in respect of whom I have referred to the evidence for her provision for Mr and Mrs Lewis; and I have also taken account of the evidence which I will shortly reach that not long after the execution of the purported Will of 6 June 2006, Mr Wade expressed in strong terms his concerns about it, that it was 'not my will'. While that latter evidence needs to be weighed with the evidence which I will also shortly reach that Mr Wade lacked testamentary capacity at that time, I consider that concern so expressed goes to the present issue.
I conclude that the plaintiff has discharged his onus of proof as to testamentary undue influence in relation to the purported Will of 6 June 2006. I have particularly noted for that purpose the evidence on which the case for the plaintiff heavily relied. That conclusion is sufficient to prevent the propounding of the purported Will of 6 June 2006. It was not put to me that if I arrived at such a conclusion there could be a severance of that portion of that will due to the undue influence: see on severance in this context Hardingham, Neave & Ford (2^nd ed) [313]. In any event, it is not clear to me that the purported Will of 6 June 2006 is severable for that purpose.
I turn now to the matter of revocation of the purported Will of 6 June 2006.

Revocation of the purported Will of 6 June 2006: background

In order to deal with the issues in relation to this challenge to the purported Will of 6 June 2006, I need to describe the relevant background to and conduct said to constitute the revocation. The description that follows is not in contest, except as indicated.
On 14 June 2006, eight days after the execution of the purported Will of 6 June 2006, Mr Wade was admitted to Narrogin Regional Hospital following episodes of vomiting. He was discharged and returned home on 26 June 2006.
On 2 July 2006 Mr Wade was re‑admitted to Narrogin Regional Hospital, again following episodes of vomiting. After his admission on this occasion, Mr Brown went to see Mr Wade at the Hospital after Mr Brown had been told Mr Wade wanted to see him urgently. Mr Wade told Mr Brown that he had made a new will, but he had not signed it, and he asked Mr Brown to get the will for him. After ascertaining from Mr Wade where he might find the will, Mr Brown ultimately obtained from that source a copy of the purported Will of 6 June 2006 (the first copy of the purported Will of 6 June 2006). The source was the Narrogin offices of the firm of accountants which Mr Lewis used. Mr Wade took the first copy of the purported Will of 6 June 2006 to Mr Wade. Mr Wade indicated to him that the first copy of the purported Will of 6 June 2006 was not what he wanted. Mr Wade told Mr Brown to write on the final (execution) page of the document 'Please cancel this will' and Mr Wade signed, but did not date, that page so endorsed. There were no endorsements of a witness or witnesses to this signature. The evidence does not clearly indicate the date of this signing.
Mr Brown's evidence was that he obtained advice from the firm of accountants from which he had obtained the first copy of the purported Will of 6 June 2006 that what Mr Wade had done was not sufficient; as a result Mr Brown consulted Ms Everett. Ms Everett's evidence was that when Mr Brown contacted her he said Mr Wade wanted to revoke his new will but did not know where it was kept, and Mr Brown had asked her if she could do a new will for Mr Wade, to which she replied she did not want to do this as she had already taken the view Mr Wade was incapable of making a will. Her evidence was that that view was the result of her view as to Mr Wade's capacity formed at the time of the 24 May 2006 meeting.
However, it is common ground that notwithstanding that view, Ms Everett told Mr Brown that one way of dealing with the will to which Mr Wade objected was to have each page marked as having been revoked and to have this revocation witnessed by independent persons. Mr Brown obtained another copy of the purported Will of 6 June 2006 from the firm of accountants (the second copy of the purported Will of 6 June 2006). Mrs Brown wrote on the second last page of that document, after the final clause, the words 'I do not recall signing this will and it is not what I want, and I confirm that my previous will is still valid' (the legend). There is no contest that a copy of the second copy of the purported Will of 6 June 2006, with the legend and the crossings out and signings I will now reach, was identified as exhibit 42 by Mrs Sally Higgins, one of the two witnesses to the signatures of Mr Wade on the second copy of the purported Will of 6 June 2006, in her evidence.
On 13 July 2006, Mr and Mrs Brown went to visit Mr Wade at his room in the Narrogin Regional Hospital. At about 5.15 pm, Mrs Higgins joined them by arrangement made by Mrs Brown. Mrs Higgins was the Mayor of Narrogin and a Justice of the Peace. Mr Brown gave Mrs Higgins the second copy of the purported Will of 6 June 2006, and she noted the legend, but also that there were no other original markings. After Mr and Mrs Brown had left the room, and Mrs Higgins had had a conversation with Mr Wade, she arranged for Mrs Brown to contact another Justice of the Peace, Mr Michael Harris, to have him come to Mr Wade's room to witness, with Mrs Higgins, Mr Wade sign the second copy of the purported Will of 6 June 2006.
Mr Harris was a retired certified practising accountant who had practised in Narrogin. About 15 minutes after he had been contacted, Mr Harris arrived, and following an exchange between him, Mrs Higgins and Mr Wade, Mrs Higgins drew a diagonal line across each page of the second copy of the purported Will of 6 June 2006 except the last page, which was an inadvertent omission. The last page was the execution page of the purported Will of 6 June 2006.
Mr Wade then signed each of the pages along the diagonal line, and Mrs Higgins and Mr Harris added their signatures alongside his, followed in the case of Mrs Higgins by the initials 'JP' and her Justice of the Peace number, and in the case of Mr Harris the initials 'JP', only. Mr Wade also signed the second last page of the second copy of the purported Will of 6 June 2006, his signature appearing alongside the handwritten word 'signature', which appears beneath the handwritten entry '13^th July 2006' appearing alongside the handwritten word 'Date', which in turn appears under the legend.
Mrs Higgins and Mr Harris each signed beneath Mr Wade's signature, their signatures each appearing alongside the handwritten word 'witness'. There is no evidence as to how the 'Date' word with its entry, and the 'signature' and 'witness' words, were added. Mrs Higgins and Mr Harris about the same time noticed that a diagonal line had not been put across the last page of the second copy of the purported Will of 6 June 2006. Mrs Higgins proceeded to draw such a line across that page, and she and Mr Harris witnessed Mr Wade's signature there.
Following the completion of these signings, Mrs Higgins called Mr and Mrs Brown into the room and handed the second copy of the purported Will of 6 June 2006 to them. Mr Wade thanked Mrs Higgins and Mr Harris for coming and they left the room.
On 18 July 2006 Mr Wade died in Narrogin Regional Hospital.
The contest between the parties in relation to the revocation of the purported Will of 6 June 2006 was whether or not Mr Wade had the capacity to revoke on 13 July 2006. There was no contest that if he had such capacity his witnessed signatures on the second copy of the purported Will of 6 June 2006 were sufficient to work a revocation of the purported Will of 6 June 2006 under Wills Act 1970 (WA) s 15 read, if necessary, with s 36, as that Act was at 13 July 2006. Also, although the matter was argued at the commencement of the trial, it was not finally in contest that if Mr Wade had such capacity the second copy of the purported Will of 6 June 2006 so signed and witnessed was sufficient to revive the Will of 21 February 2006. On the revival of revoked wills, see Barndon v Chelvanayagam [2006] WASC 118 [67] ‑ [69] (E M Heenan J).

Revocation of the purported Will of 6 June 2006: law applicable to capacity

To revoke a will, as a general proposition a person must have the 'same degree of mental capacity' as for the making of a will: The Public Trustee v Elderfield; Re Estate of Poole (Unreported; NSWSC (Young J); Lib No 118125 of 1994; 26 April 1996) BC9601658 at 4, referring to Re Richards [1911] VLR 284, 287 (A'Beckett J), while acknowledging that in Re Richards the proposition applied 'generally speaking'. As I read Poole, the qualification did not apply to a revocation of the whole of the will, as here; in any event the parties appear to have accepted the applicable law in terms corresponding to the terms of the general proposition. I have previously described the required aspects for testamentary capacity.
Further, it was not in contest that the burden of proof of the capacity to revoke was on the plaintiff, as the party seeking to rely upon the revocation.

Revocation of the purported Will of 6 June 2006: the evidence and my finding as to capacity

The evidence relied upon by the plaintiff in relation to capacity was that of Mrs Higgins and Mr Harris, both of whom testified; there was reference also to the evidence of Mr Brown. The defendant particularly directed my attention to the medical evidence, especially that of Dr Warne and Dr De Felice. On the entirety of the evidence, I have concluded that the plaintiff has not discharged his burden of proof as to capacity.
In my view the strongest evidence of capacity came from Mrs Higgins (witness statement, exhibit 59). Her evidence was that she knew Mr Wade 'well', and indeed had known him for 38 years. In her conversation with him before having Mr Harris brought to the Hospital, she had read out to Mr Wade the entirety of the second copy of the purported Will of 6 June 2006, during which he 'appeared to be quite upset'; and when she finished he had said he did not want the will, adding 'it was not my will' and that his solicitor was Ms Everett (exhibit 59 [32] ‑ [33]). Mrs Higgins told him she could see his signature on the will, and he must have signed it, to which he replied he could not remember signing it.
When Mr Harris arrived, she told Mr Harris, in Mr Wade's presence, that the will was not what he wanted and he wanted a previous will to replace it, a will prepared by Ms Everett. Mr Wade said that the will was not his and said he wanted to sign the second copy of the purported Will of 6 June 2006. He did so by way of response to Mr Harris when he asked Mr Wade whether what he wanted was what Mrs Higgins had told Mr Harris. Mr Wade was 'coherent' and 'appeared to understand what [Mr] Harris had told him' (exhibit 59 [51]).
Mrs Higgins had been aware when she came to see Mr Wade that there were 'rumours … going around Narrogin' which caused her to be 'sure that there would be Court action about Bill's will' and which also caused her to 'make very sure that I was satisfied that he understood what he was doing, and that he rationally and truly wished to revoke the Will' (exhibit 59 [64], [65]).
The cross‑examination of Mrs Higgins included the following (ts 409, 412, 415):
Did you know before 13 July 2006 anything about wills Mr Wade may have made that were to confer some benefit upon Mr and Mrs Gambrell?‑‑‑No, only that Mr Wade had always told me he wanted to look after his boy, his boy that had been better than any son could have been to him.
Are they words that he had said to you before 13 July?---Yes.
He had previously said to you - this is well before 13 July?---Yes.
That he wanted to look after Mr Gambrell who was like a son to him?---That's right.
Words to that effect?---That's right.
So when you went to the hospital on 13 July you had the belief that Mr Wade's prior intentions had been that he wanted to make provision in his will for the Gambrells. Is that correct?---Well, I didn't really know that, no. I didn't know the content of any of Mr Wade's wills.
You had the belief that Mr Wade had told you he wanted to do something for the Gambrells?---He said that he wanted to look after his son.
Yes, all right, and you also had the belief that Ray Lewis was trying to get his hands on Bill Wade's property?---Yes, and so did Mr Wade have that belief.
…
The question was, although Mr Wade said to you on 13 July 2006 that he could not remember signing the will, you simply ignored that as relevant to his capacity. Is that correct?---That is correct.
And is that because when you went to the hospital you had a preconceived view that Mr Wade had been railroaded into signing a document some days or weeks before?---No, that is not correct.
Then can you tell me why you ignored that comment?---I had known Mr Wade for 38 years and I made the judgment call that what Mr Wade was saying to me was quite coherent. He knew exactly what he was saying and exactly what he was doing, so I made the call in conjunction with another JP that we would strike out the will and carry out Mr Wade's wishes and to me he was as perfectly normal as he had been every other day of those 38 years that I knew him.
…
Yes, but you were satisfied without making any inquiry of any medical staff. That's correct, isn't it?---I didn't make any inquiries, no.
Mrs Higgins, did you make no inquiry of the medical staff because you didn't want anyone to tell you that Mr Wade didn't have capacity?---No, that's not correct.
Mrs Higgins, can you give me another explanation as to why, in the middle of a hospital on 13 July 2006, with a gentleman who was elderly, you didn't see fit to ask any of the medical staff if he had the capacity to sign a document?---As I said previously, I knew Mr Wade very well, and he was the same Bill Wade that I'd always known, so I didn't deem it necessary to go and seek guidance or advice from medical staff. He was quite coherent and he knew exactly what he was doing.
Mrs Higgins, how could he be coherent when he couldn't remember signing the document he wished to revoke which had been signed on 6 June 2006?---Because he was very angry about that document.

I further note Mrs Higgins's evidence that, in addition to her being 'very aware' of the responsibility of her position as a Justice of the Peace since 1995 not to witness a document which a person lacked the capacity to sign, she felt she was 'there for Bill', for whom she had 'tremendous respect', and she wanted to 'ensure that what he wanted was done' (exhibit 59 [66], [67]).
In my view of her evidence there are the indications in the cross‑examination just quoted and the other evidence just referred to that, while her opinion as to Mr Wade's capacity was honestly held, she regarded the strength of Mr Wade's views of the purported Will of 6 June 2006 as the measure of his capacity. I also note for this purpose the following from her cross‑examination (ts 408, 416 ‑ 417):
When you went to the Narrogin Hospital on 13 July 2006, did you have a belief that Ray Lewis was trying to get Bill Wade's farm?---I probably did believe that, yes.
Yes, and not only did you believe it but you also believed that there was something wrong about it, didn't you?---No, I didn't. I mean, I wasn't a beneficiary. It really wasn't my concern. I was there for Mr Wade, and Mr Wade was concerned.
…
Yes, so he wasn't coherent, was he?---He was coherent, he was very coherent and he knew exactly what he was doing. He was very angry. He was angry that family members had gone behind his back and had another will drawn up and that he'd been made to sign it under duress and he wanted it struck out.
Mrs Higgins, the statement you've just made was full of emotion and reflective of your perception of what occurred. Is that correct?---That is my recollection of what occurred.
What you said then was laden with emotion, wasn't it?---Well, maybe. I was very fond of Mr Wade.
And your perception was and remains that people ‑ family members ‑ some members of his family had gone behind his back and somehow tricked him into signing a will on 6 June 2006. Is that correct?‑‑‑I don't know if it was family members that went behind his back. I don't know who had the will drawn up.
Sorry, I thought you just said family members?---Other people.
Other people?---And I don't know they were. I don't know who instructed lawyers to draw up the will that Mr Wade did not want to stand.
Mrs Higgins, let me put it in other words then. Your perception was, when you went to the hospital on 13 July 2006, that some people had gone behind his back and tricked him into signing a will on 6 June 2006. Is that correct?---Yes.
I'm sorry, I couldn't hear you?---Yes.
Thank you. And that's still your perception, isn't it?---Yes, it is.
And your judgment is that the just outcome of this case is that the will made on 6 June 2006 should be set aside?---That's correct.
Later in Mrs Higgins's testimony she stated she had not gone into Mr Wade's room with the opinion that some people had gone behind his back and tricked him into signing the purported Will of 6 June 2006, but had been told this by Mr Wade in the room. However, she also conceded this was difficult to square with her earlier answer just quoted about her 'perception' at that time.
Mrs Higgins prepared notes of what occurred, from the time on 13 July 2006 she was contacted to come to Mr Wade's room to the end of the visit, and the notes were in evidence as exhibit 60. They indicate that after she read out the second copy of the purported Will of 6 June 2006 Mr Wade told her he was upset that his 'loyal employee', Mr Gambrell, should receive what he had 'previously bequeathed him', and was 'adamant' that a stepson-in-law, Mr Lewis, should not get what Mr Wade had 'worked all his life for'.
Mrs Higgins was not asked any questions as to whether she had made any specific inquiries of Mr Wade to ascertain his testamentary capacity, by asking what he understood the document she read out to provide in respect of Mr Gambrell, what his estate was or who his intended beneficiaries were. However, I have previously referred to her evidence that she did not make any inquiries of medical staff at the Narrogin Regional Hospital as to his condition. Further, there is no indication in her witness statement (exhibit 59), her notes (exhibit 60) or her other evidence that she made any other inquiries, or relied on any other matters than what Mr Wade had said after she read out the second copy of the purported Will of 6 June 2006 and before Mr Higgins came into the room, with his continued strongly put objection thereafter that it was not his will. She relied on those matters, in the light of her prior acquaintance with Mr Wade, as sufficient to reassure her he had capacity.
In view of Mr Wade's condition at the time, including that he could not remember signing the will to which he strongly objected, these matters in my view were not without significance; but they also were not, taken together, a weighty basis for her opinion as to Mr Wade's capacity at that time.
Mr Harris' evidence (witness statement, exhibit 61) was that he did not know Mr Wade well. He had first met Mr Wade in Narrogin some years previously, and would always speak to him if he met him in the street. Mr Harris in his evidence confirmed that he had asked Mr Wade if what Mrs Higgins had explained to Mr Harris in Mr Wade's presence as I have indicated was what Mr Wade wanted, and Mr Wade 'appeared to understand', adding 'it all seems very complicated' (exhibit 61 [25]). Mr Harris witnessed the signing of the second copy of the purported Will of 6 June 2006 as he believed Mr Wade was 'aware of what he was doing at the time', and while Mr Wade was 'obviously very ill' at the same time 'he appeared coherent' (exhibit 61 [39], [40]).
Mr Harris' evidence was that his opinion rested on Mr Wade's response to him as just described; Mr Wade's 'appropriate facial responses' to what Mr Higgins said to Mr Wade; Mr Wade's response 'not what I want' when Mr Harris and Mrs Higgins noticed that none of them had signed any indication of revocation on the last page of the second copy of the purported Will of 6 June 2006 and Mr Harris again asked Mr Wade if he knew by signing he would be effectively revoking his will and requesting that a previous will prepared by Ms Everett apply; Mr Wade's statement he recalled playing tennis with Mr Harris' father; and Mr Wade addressing Mr Harris by his Christian name on three occasions in the room.
However, while I consider Mr Harris, like Mrs Higgins, honestly believed Mr Wade had capacity, I also note that like Mrs Higgins he did not ask any of the medical staff in the Hospital if Mr Wade had capacity. Nor did Mr Harris ask Mr Wade what he did want in his will, what assets he had and who the beneficiaries were who might receive bequests under his will. I consider that the bases on which Mr Harris' opinion as to Mr Wade's capacity rested were, while not without significance, of even lesser weight than those on which Mrs Higgins' opinion rested.
Mr Brown's evidence as to Mr Wade's capacity on 13 July 2006 was of a different kind from that of Mrs Higgins or Mr Harris. Mr Brown's evidence was as follows (cross examination, ts 333 ‑ 335, 343 and 355):
So did you think that Mr Wade on 13 July wasn't capable of making a will as well?---He was up and down a lot and there were times when I think he was and there were times when I think he wasn't.
On 13 July immediately before he signed, as far as you know, the instrument of revocation witnessed by Sally Higgins and Mr Harris did you think that Mr Wade was competent to make a new will?---I thought when I left the room that he was in good form and that he was having a better day.
…
Did you ask any of the medical practitioners around the hospital about Mr Wade's capacity to make a will on that day?---No.
Is there a reason that you didn't ask any of the doctors whether he was capable on that day?---No, I was just operating under what Mr Wade asked me to do.
Did you not ask the doctors about Mr Wade's capacity to make a will on 13 July because you didn't want to know the answer?---Not at all.
Isn't it the case that you didn't ask any of the doctors because the answer they may have given you was that Mr Wade was incapable, so it was easier not to ask the question?---No, I wasn't thinking that way. I knew he was up and down all the time.
…
And wasn't the way to deal with that to ask one of the doctors who must have been about the hospital on 13 July at some time if they could give you any information about Mr Wade's capacity? Wasn't that just something obvious you should have done?---Perhaps it was, but I didn't think of it.
Let me put it to you, Mr Brown, that you thought of it but you decided not to do it because you didn't want to know the answer?---No, no, I knew his capacity was very limited. It was fluctuating.
His capacity was very limited?---It was very limited from time to time, but it was fluctuating.
Mr Wade's capacity was in fact so limited that he couldn't remember making the will?---That is true.
Yes?---No, I beg your pardon, he couldn't remember signing a will. He could remember making a will.
What's the difference between signing a will and making a will, Mr Brown?---I don't know. He just said to me, "I've made a new will but I haven't signed it yet. Could you get me a copy?"
So he couldn't remember signing the will?---That's right.
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So that was a good day for Mr Wade, was it?---No, I didn't say 'day.' I said when I first met him he seemed to be pretty good.
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---We didn't see him for very long.
Mr Brown, isn't it obvious from the nursing notes that Mr Wade was not in a good condition on 13 July and even you knew that?---I knew that he'd been fluctuating and he wasn't ‑ ‑ ‑
You knew he wasn't in good condition and you didn't care. You just wanted this document signed, didn't you?---No, not at all.
…
Mr Brown, isn't it the case that on 13 July you didn't ask any of the doctors at Narrogin Hospital about Bill Wade's capacity to sign a revocation of his will. That's correct, isn't it?---That's correct, yes.
And the reason you didn't do that is because you didn't want to know the answer?---No, I didn't. I was leaving it to the JPs. That was their job, not mine.
Their job to sort out whether he had testamentary capacity?---Yes. They were the ones doing the witness.
So it wasn't an issue where you need medical advice?---I didn't feel it was my position to do that.
Didn't you?---No.
I consider Mr Brown's evidence was at most he did not consider Mr Wade lacked capacity, but that he left the determination of that matter to the witnesses to his signature on the second copy of the purported Will of 6 June 2006. Further, I consider Mr Brown's evidence was that Mr Wade's capacity was 'very limited', and his condition was fluctuating, although on 13 July 2006 when Mr Brown left him in his room he was 'in good form' and he was having 'a better day'.
I turn now to the medical evidence.
Dr Warne agreed with the proposition put to him that as at 13 July 2006, after Mr Wade had been seen by Dr Clarnette, Mr Wade 'in all likelihood was so disabled by illness or infirmity that he wasn't in a proper condition to make a will' (cross‑examination, ts 447). I have previously referred to Dr Clarnette's report compiled after seeing Mr Wade on 20 June 2006 (exhibit 73) and following a request from Dr Seton, the general practitioner who had previously dealt with Mr Wade, in Dr Seton's letter dated 16 June 2006 (see exhibit 72) referring to Mr Wade's 'current state of semi‑dementia'. I have also previously referred to Dr Warne's use of that report and that letter.
Dr De Felice's evidence based on the hospital records for Mr Wade's admission to the Narrogin Regional Hospital on 2 July 2006 (exhibit 91) was as follows, from his report (exhibit 66):
The hospital records of July 2007 [sic] lead me to conclude that Mr Wade probably did not have testamentary capacity at that time. The only entry that leads me to perhaps think that he may have had such a capacity was the 'Falls Risk Assessment Tools' in the hospital records from the bundle dated 13 July 2007 [sic] in which on 2 July 2006 Mr Wade was considered to be 'orientated to time, place and person'. Having said that, the 'General Assessment on Admission' form of the same date concludes that Mr Wade was 'sleepy, not well orientated to time', so this does seem a contradiction. I suspect that through the July 2006 admission Mr Wade was demonstrating evidence of delirium. Not only did he have whatever medical conditions were of relevance, but he also showed evidence of sleep disturbance, fluctuating conscious level, restlessness and confusion, these being probable symptoms of delirium. So, in my opinion, Mr Wade did not have testamentary capacity through his admission in July 2007 [sic], probably because the illness that led to his death on 18 July 2006 was probably present from early July and so was affecting his mental state during his admission.
I also note the evidence of Dr Gildenhuys, who admitted Mr Wade to Narrogin Regional Hospital on 2 July 2006, and who saw him usually twice a day during Mr Wade's ensuing stay, as to Mr Wade's mental state during that stay. Dr Gildenhuys' evidence was that (examination‑in‑chief, ts 542, reading from his witness statement exhibit 79):
While Mr Wade was in hospital I saw him usually twice a day when I did my rounds. Although I never completed a mini mental or other cognitive test with Mr Wade, I recall clearly that he was at all times very confused. I based that conclusion on my observations that on most visits we were unable to manage a meaningful conversation.
Consistently with my recollection the hospital dates show -
Sorry, I will start that sentence again.
Consistently with my recollection the hospital notes show that on 6 July 2006 we attempted but were unable to complete a mini mental test. One or two times Mr Wade demonstrated a limited amount of sense, but even on his good moments he still appeared to be a victim of memory loss and some level of dementia.
I consider this evidence of Dr Gildenhuys, and that in the notes from Narrogin Regional Hospital (exhibit 91) to which Dr De Felice refers to be of considerable assistance to me: see Revie [34].
I have noted, as counsel for the plaintiff urged on me, the evidence that Dr Clarnette in his report recommended Mr Wade no longer receive haloperidol, the possible effects of which on Mr Wade's mental state I have previously considered. I have previously noted that it was common ground that on 20 June 2006 Mr Wade was taken off haloperidol during his stay in Narrogin Regional Hospital for the period 14 to 26 June 2006. However, I also note in the hospital records for the later admission, from 2 July 2006 in exhibit 91, that on 7 July 2006 he appears to have been given that drug, with the entry also for that date 'haloperidol may be given 12/24'. However that may be, I do not draw from the evidence counsel pressed on me sufficient reason to conclude Mr Wade could be expected on that account to have been likely to have greater capacity after Dr Clarnette's report. That is in view of the other medical evidence as to his condition on and following his 2 July 2006 admission to which Dr De Felice refers.
On my consideration of all of the evidence referred to in this section of my reasons, I have concluded that the plaintiff has not discharged his burden of proof that Mr Wade had the required capacity on 13 July 2006 to revoke the purported Will of 6 June 2006. As Nicholson [41] indicates, in the passage I quoted earlier, the evidence of the expert witnesses, 'while not without weight, cannot be decisive'; rather the court 'must judge the issue from the facts disclosed by the entire body of evidence'. That body includes the contemporaneous medical reports and records on which the opinions of Dr Warne and Dr De Felice rested and the evidence of Dr Gildenhuys, as well as the other evidence of Mr Wade's condition at the time, including that from Mr Brown.
I have already referred to the evidence of both Dr De Felice and Dr Warne as to the relevance to Mr Wade's testamentary capacity of his physical condition, in respect of his congestive cardiac failure which it was common ground was present at the time of the admission to Narrogin Regional Hospital on 2 July 2006. In my view, the evidence of these kinds weighs heavily against a conclusion Mr Wade had testamentary capacity as described in the authorities on such capacity I referred to in relation to the capacity to make the purported Will of 6 June 2006. Such capacity was, as I have indicated, what was required for its revocation. I do not consider the opinions of Mrs Higgins and Mr Harris as to Mr Wade's capacity considered with the bases on which they rested outweigh that other evidence.
I therefore conclude that, had the defendant as propounder of the purported Will of 6 June 2006 discharged the burden of proof that Mr Wade had testamentary capacity to make it, the purported revocation of 13 July 2006 would not have been effective.

Conclusion

For these reasons I have concluded that probate should not be granted of the purported Will of 6 June 2006, but should be granted of the Will of 21 February 2006.
I will hear from the parties as to the orders to be made to give effect to these conclusions.