Burgess v Leech - [2007] NSWSC 700

CITATION: BURGESS v LEECH [2007] NSWSC 700

HEARING DATE(S): 14-18/05; 21/05/2007

JUDGMENT DATE :
19 July 2007

JURISDICTION: EQUITY. Probate List

JUDGMENT OF: Bryson AJ at 1

DECISION: see para [109]

CATCHWORDS: WILLS PROBATE and ADMINISTRATION - testamentary capacity - testator aged 83 - inofficious dispositions and indications of irrational hostility towards son, Managing Director of testator's family company - medical evidence did not clearly establish definable mental illness but suggested possible early dementia - extended consideration of evidence of testator's conduct, beliefs and attitudes - finding against testamentary capacity - probate to be granted of earlier will - decision on facts.

CASES CITED: Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Derrett v Hall (Unreported. High Court, 4th February 1942)
Romano v Romano & Anor [2003] NSWSC 436
Romano v Romano [2004] NSWCA 37
Shaw & Anor v Crichton (CA Unreported 23 August 1995)
Timbury v Coffee (1941) 66 CLR 277

PARTIES: Damian Burgess - Plaintiff
Robert Clive Leech - Defendant

FILE NUMBER(S): SC 120756/2004

COUNSEL: Ms J. Needham SC and T. Saunders - Plaintiff
A. Hill and P. Jeffriess - Defendant

SOLICITORS: Burgess Lawyers - Plaintiff
Palmers Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE DIVISION

BRYSON AJ

THURSDAY 19 JULY 2007

120756/04 DAMIAN BURGESS v ROBERT CLIVE LEECH The Estate of EDGAR ROBERT LEECH

JUDGMENT

1 The parties dispute which will of the testator should be admitted to probate. The late Edgar Robert Leech died on 21 September 2004 at Maclean District Hospital: the causes of death recorded were “(a) Myocardial Infarction (b) Ischaemic heart disease.” He was domiciled in this State and all his known assets are situated here. He was born on 15 January 1921 and was 83 years of age on 15 March 2004 and when he died. He was survived by his widow Mrs Emily Josephine Leech, who is still alive but did not give evidence in the proceedings; and by his son the defendant Mr Robert Leech and his daughter Mrs Joan Leader. The plaintiff Mr Burgess, who is a solicitor practising in Newcastle, propounds a document dated 15 March 2004 for probate as the last will; this document was executed and attested in Mr Burgess’ office in a way which met every formal requirement. The events of that day were described in the evidence of Mr Burgess and also of his secretary Ms Elisabeth Coates, who was one of the attesting witnesses, and on that occasion the testator’s behaviour was unremarkable and did not indicate lack of capacity to make a will, or any misunderstanding at all, so far as appeared to Mr Burgess and Ms Coates or was shown by what he said and did.

2 The pleadings and agreed statement of issues establish that the sole issue for decision is whether the testator had testamentary capacity when he executed this document. Mr Robert Leech cross claims that a will executed by the testator on 26 June 2000 should be admitted to probate. The parties have agreed that if the document of 15 March 2004 is found to be invalid, the will of 26 June 2000 should be admitted to probate; and on the evidence this is clearly correct. The earlier document also appointed Mr Burgess as the executor, and was prepared by him on the testator’s instructions. The testator made earlier wills; all earlier wills were revoked by one or other of these. Mr Burgess’ application for probate has been duly advertised.

3 It could not be disputed on the basis of the medical evidence, and it was not disputed that as at 15 March 2004 the testator was able to understand the nature of the act of making a will and did not suffer from insane delusions.

4 The estate assets were of considerable value; I am not concerned to make findings now which establish what the assets were or their value, but Mr Burgess’ inventory included:-

§ Real estate – a house property at 32 Acacia Circle, Yamba and another house property at Nabilla Court, Yamba, each said to be worth $500,000;

§ sums on deposit at banks said to total $1,679,212.26;

§ 101 Management shares and 4693 ordinary shares in Edgar Leech Holdings Pty Ltd (the company) said to be worth $2,825,000;

§ 4,100 shares in Telstra said to be $19,229;

§ shares in Edgar Leech Pty Ltd said to be worth $60;

§ furniture said to be worth $10,000.

5 The inventory also shows that the testator owned 9586 ordinary shares in Edgar Leech Holdings Pty Ltd as co-owner with his wife Mrs Emily Leech; said to be worth $2,824,419. There were several assertions by or on behalf of the testator during his lifetime that these shares were assets of a family trust; however Mrs Emily Leech is not shown by evidence ever to have acknowledged this.

6 The significant dispositions in the document of 15 March 2004 are to these effects. Mrs Emily Leech was given a right of sole use during her life of the principal place of residence (which is the house at Acacia Circle, Yamba), with rights to substitute another residence. The remainder interest in that house after her life was given in equal shares to Mr Robert Leech and Mrs Joan Leader. Of the testator’s 101 management shares in the company the document gave 50 management shares to Robert Leech and 51 to Joan Leader. Of the testator’s ordinary shares in that company the document gave one half to Robert Leech and one half to Joan Leader. The document gave the residue of the estate to Mrs Emily Leech. The residue includes the house property at Nabilla Court, Yamba, the money in banks and other less valuable assets. The document also according to its terms appointed Mrs Emily Leech to be Governing Director of the company.

7 The dispositions in the document of 15 March 2004 were different in significant ways from those in the will of 26 June 2000. Under the earlier will Mrs Emily Leech had sole use of the principal place of residence during her life, but the later document somewhat enhanced this right. The remainder interest in the principal place of residence after Mrs Emily Leech’s lifetime was given as to 75 per cent to Mr Robert Leech and as to 25 per cent to Mrs Joan Leader. 51 of the management shares were given to Mr Robert Leech and 50 to Mrs Joan Leader. (The later document gave him 50 and her 51). All the testator’s ordinary shares in the company were given to Mr Robert Leech. The residue of the estate was not given to Mrs Emily Leech; 60 percent was given to Mr Robert Leech and 40 percent to Mrs Joan Leader.

8 The testator was the Governing Director from formation of the company in 1960 for the rest of his life. As Governing Director the testator was very fully empowered by the Articles of Association. The holders of management shares have, for practical purposes, complete control; there are many more ordinary shares, but the rights attached to them have slight effect. As Governing Director with 101 management shares the testator was during his lifetime in a position of complete control of the affairs of the company. He could override other directors; and after 1995 Mr Robert Leech was the only other director.

9 When the company was formed in 1960 there were 103 management shares. Now there are 104. The testator acquired one under the Memorandum of Association and 100 by allotment soon after. Mrs Emily Leech and Mr David Mansfield (an accountant) each acquired one under the Memorandum of Association. Mr Mansfield’s one management share was transferred to Mrs Joan Leader in December 1967 and she still holds it. One more management share was issued on 3 July 1986 and allotted to Mr Robert Leech. Mr Robert Leech and Mrs Joan Leader appear in the share register only as the holders of one management share each. If the will of 15 March 2004 takes effect Mr Robert Leech will have 51 management shares, Mrs Joan Leader will have 52 and Mrs Emily Leech will have one. There could easily be deadlocks.

10 The pattern of shareholdings, established many years ago, is a little difficult to follow. The testator owned 4693 ordinary shares and 101 management shares. Mrs Emily Leech owned 4793 ordinary shares and one management share. If it is right to think of the 9586 co-owned shares as held on trust for Mr Robert Leech and Mrs Joan Leader in equal shares, each of them is the equitable owner of 4793 ordinary shares, and each has one management share. Adding ordinary shares and management shares together, each family member has 4794 shares, but there is less symmetry about this than might be supposed, because management shares have voting dominance and rights which are not attached to ordinary shares.

11 The testator had a long early business career carrying out construction and engineering projects. From 1960 onwards the company was the vehicle for his business ventures. The Nandewar Motor Inn on the Newell Highway at Narrabri was constructed about 1968 on land owned by the company: there have been several construction projects since in which the Motor Inn was extended and renovated and a Dining Room and a Bar were constructed. The company constructed a Service Station and Truck Stop on other land on the Newell Highway Narrabri, and acquired Westpac Bank premises in Moree in 1994 for $337,500, and the Westpac building in Narrabri in March 1996 for about $415,000. These were purchased as investments and the properties have been leased out. Mr Robert Leech left school in 1962, and since 1963 has spent his whole working life in the testator’s enterprises: working at the Motor Inn from 1975 onwards, always involved in the company’s other ventures, and as Managing Director since 1986 when the testator retired. The Motor Inn is central to the company’s business and the family’s affairs. The company has other assets, including the dwelling occupied by Mr Robert Leech and his family.

12 After 1986 the testator and Mrs Emily Leech lived in retirement well away from Narrabri, at Soldier’s Point and elsewhere near Port Stephens for some years: then for the last years of the testator’s life they lived at Yamba. The testator continued to be fully interested and active in the affairs of the company, and in major decisions such as the purchase of investments: less so in the last few years. Decisions were shared with Mr Robert Leech, notwithstanding the overwhelming power of the testator’s position as Governing Director. The testator and Mrs Emily Leech came to the Motor Inn several times each year. Their last extended stay at the Motor Inn began early in October 2003 and ended with their precipitate departure on 15 January 2004. They were at the Motor Inn again for a short period in April 2004. The conduct and events which give rise to doubt about the testator’s testamentary capacity began during their stay in late 2003 and early 2004. Conduct and events at earlier times were brought under consideration by evidence, and for reasons which will appear I do not regard them as of high importance.

13 Although Mrs Emily Leech held a management share and one quarter of the ordinary shares on issue from the company’s earliest days and at times did some work in the motel business, she did not ever function in any way as a manager or take part in the management of the motel business; and she had no part at all in the company’s other enterprises. She has never been a director of the company.

14 The testator appointed Mr Robert Leech as director on 3 July 1986, the day his management share was allotted to him, and appointed him Managing Director on 4 July 1986. Mrs Joan Leader was a Director for many years until the testator removed her from office on 27 November 1995. She also held other offices which were terminated on that day: but she was never actively involved in directing the company. So from 1995 on the testator and Mr Robert Leech were the only directors. Since the testator died Mr Robert Leech has been the only director: the testator did not appoint anyone else, and (as Mr Burgess told him before he executed the will) the appointment of Mrs Emily Leech as Governing Director was not effective.

15 Clause 4(a) of the document of 15 March 2004 purported to appoint Mrs Emily Leech Governing Director of the company. However this provision did not take effect, because Article 83(4) of the Articles of Association was not complied with. Article 83(4) authorised the testator to appoint a Governing Director after his death, but the person appointed was required to hold or be entitled to at least 101 management shares, and the testator did not give Mrs Emily Leech his 101 management shares. The only management share Mrs Emily Leech has ever owned is the one she acquired on formation in March 1960, and this did not qualify her for appointment as Governing Director.

16 On 11 May 1995 the testator resolved to appoint Mr Robert Leech as his successor as Governing Director. His power in Article 83(4) to appoint a successor could be exercised only by will or codicil, not by resolution, but the resolution says that an appointment had been made by a will also on 11 May 1995: “which also bequeaths to him my one hundred and one (101) management shares .…”. These arrangements did not take effect. Under the 2000 will Mr Robert Leech was appointed Governing Director; however this appointment would not have been effective because he would not have held 101 management shares.

17 The testator’s decision not to appoint Mr Robert Leech as Governing Director can be seen as supporting the view that he had hostile feelings towards Mr Robert Leech, but cannot be seen as irrational. Most companies function without a Governing Director. In 1995 the testator had made arrangements for appointing Mr Robert Leech to be Governing Director, and in 2000 he had departed from those arrangements. The other side of the decision, the appointment of Mrs Emily Leech as Governing Director in circumstances where he knew that the appointment was ineffective, was an irrational thing to do; no less so because he had done something similar a few years earlier when he ineffectively appointed Mr Robert Leech.

18 The issue of competency to make a will has traditionally been expressed as whether the testator was of sound mind, memory and understanding when he made the will. Another formulation which is sometimes encountered is “of sound and disposing mind and memory”. This is a question of fact.

19 The following passage in the judgment of Cockburn CJ for the Court of Queens Bench in Banks v Goodfellow (1870) LR 5 QB 549 at 567 has often been cited: -

“… that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring abut a disposal of it which, if the mind had been sound, would not have been made.

Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. But what if the mind, though possessing sufficient power, undisturbed by frenzy or delusion, to take into account all the considerations necessary to the proper making of a will, should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational proper will is the result; ought we, in such case, to deny to the testator the capacity to dispose of his property by will?”

20 In this passage Cockburn CJ referred to the effects of mental disease or insanity. His Lordship went on (565-566) with observations to the effect that mental disease may exist yet not affect testamentary capacity. Cockburn CJ went on (566) to speak in terms which show that he contemplated that testamentary capacity might be lost through an influence which he did not include in his references to insanity, as follows:

“It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause – namely, from want of intelligence occasioned by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such a defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standards, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, “the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done”. (1) Williams on Executors, 6th ed. Vol. 1 p.37, n.x.”

21 Although they do not refer to Cockburn CJ’s judgment in terms, the arrangement in their reports of the matters the medical witnesses considered show that they addressed, in order, the subjects which Cockburn CJ stated, in the first paragraph I have cited, as essential to the due exercise of testamentary power. That paragraph places “disorder of the mind“ and ”insane delusion” in apposition with ability “… to comprehend and appreciate the claims to which [the testator] ought to give effect”, and the medical witnesses addressed whether there was “disorder of the mind” and “insane delusion”. The passage from Banks v Goodfellow at 566 which I have last cited shows Cockburn CJ’s view that the possible causes of want of capacity included conditions which do not seem to fit well into what his Lordship referred to as “disorder of the mind” and “insane delusion”, and extended to “…want of intelligence occasioned by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinct from mental derangement…”. It would be an error to confine attention to conditions which could be classified, in the language of 1870, as disorders of the mind and insane delusions.

22 Judgments in the High Court in Timbury v Coffee (1941) 66 CLR 277 (which relates to alcoholism), shows that the judges did not regard the question of testamentary capacity as tied to a finding of some identifiable condition of mental disorder or insanity. Rich ACJ at 280 gave the following summary of the issues:

“Was then the evidence such as to justify the jury in finding, as in effect they did, that the delusions overmastered his judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will…”

Bull v Fulton

as a fixed and incorrigible false belief which the victim could not be reasoned out of

23 I have emphasised the valuable definition of an insane delusion taken from Derrett v Hall (Unreported. High Court, 4th February 1942). See too Williams J at 341-343.

24 In Romano v Romano & Anor [2003] NSWSC 436 at 11, I said, with references to authority "It is not essential that there be insanity or any disorder of the mind, or that there be delusions, for it to be found that a person did not have testamentary capacity. For a person to have testamentary capacity he must be able to call to mind and consider the property that he has available to dispose of, and the persons who have natural claims for consideration as objects of his bounty; and he must be able to do that without his consideration being affected by hostility which is not rationally based." I also said at 12: "A person who is of sound mind, memory and understanding can make any testamentary dispositions he wishes, no matter how inofficious or eccentric; but if dispositions are eccentric or do not recognize obvious claims, those facts may be relevant to capacity. Where a document is expressed and executed in circumstances of regularity the person propounding is usually taken to have discharged the onus of proof of capacity; but all relevant facts in evidence must be taken together." There was no adverse observation on these views in the judgments in the Court of Appeal which affirmed this decision: Romano v Romano [2004] NSWCA 37. My view on there being no need, in principle, to show insanity or mental illness in an attack on capacity was also expressed in Shaw v Crichton and approved on appeal in the judgment of Cole JA in that case at pp8-12: Shaw & Anor v Crichton (CA Unreported 23 August 1995).

25 Many reported cases contain judicial expositions of competency, and references in them to insanity, mental illness and delusions reflect the understanding of judges and in turn medical opinion which change from age to age. It is not, in my understanding, central to the inquiry to establish whether or not delusions, if the testator is shown to have suffered from delusions, had their origin in one particular mental disorder or in another; what is under consideration is whether delusions existed, not whether delusions had an origin in some definable mental disorder. Whether there were delusions, mental disease, infirmity, want of intelligence, defective organisation, decay of advancing age or some similar concept, described in the language of medical science of the present time or in archaic language, is not the ultimate object of proof but means of proving whether the testator had testamentary capacity.

26 On their face the dispositions made in the document of 15 March 2004 do not seem inappropriate; the testator made provision for his widow’s housing and gave generous gifts of property to her which would carry with it ownership of another house and large investment funds; and also made significant dispositions for his adult children. When these gifts are considered in the context of the circumstances of the testator’s life over some decades, and of his relationships with his wife and his children, both his personal relationships and his business relationships and the course of Mr Robert Leech’s life, and of commitments which he had made to Mr Robert Leech, the dispositions of March 2004 are markedly inofficious, in a way which cannot be said of the 2000 will. In this context “inofficious” refers to the dispositions’ not conforming with what the testator might be expected to provide in his will so as to meet the personal and moral claims which in the circumstances he owed to his son. The evidentiary onus or forensic burden placed on the defendant by the apparent regularity of the terms of the will and the circumstances of its execution was displaced by a large body of evidence which clearly brought testamentary capacity into issue.

27 No medical practitioner who has been identified made a diagnosis in the testator’s lifetime that he suffered from dementia or any other medical condition which would adversely affect his testamentary capacity. Early in the extended stay at the Motor Inn which began in October 2003 the testator told Mr Robert Leech “The doctors have told me that I have the early stages of dementia”. Extensive enquiries have been made, but no indication has been found that any doctor in fact had told him this; the evidence of Dr Edward McCarthy makes it very unlikely that he had been told this. On other occasions he made a strange observations to the effect that he thought he was being poisoned. There are references in hospital notes made in the last weeks of his life to dementia and to confusion; but these are not fully or clearly expressed medical opinions and they relate to a time when the testator, at an advanced age, was hospitalised and had undergone surgery, and it is not remarkable that there were episodes of confusion. Each side called the evidence of a highly qualified medical specialist who, on the basis of quite full briefs of relevant facts, expressed opinions on the testator’s condition at the time he made the disputed will, and also opinions on the ultimate question of his testamentary capacity. While I value the evidence of these medical practitioners, they speak with the disadvantage (shared by me) of never having seen or examined the testator. It is not enough for me simply to adopt one or the other of the medical opinions, but I must come to my own conclusion on the issue of fact which I am to decide.

28 Mr Robert Leech has claimed that he is entitled to 4793 of the 9586 ordinary shares of which the testator and Mrs Emily Leech are co-owners according to the share register, and that they should be transferred to him under a family trust. Whether he is so entitled is not before me for decision now. If he is, it follows that Mrs Joan Leader is entitled to the other 4793 ordinary shares. If the 9586 co-owned shares are not trust assets, ownership seems to depend on whether the co-owners were owners in common or joint owners. Mr Robert Leech put forward this claim during a period of estrangement between his parents, who were the trustees, in 1986; correspondence from lawyers on behalf of Mrs Emily Leech did not accept that the shares were a trust asset. During the testator's separation from Mrs Emily Leech, for about 12 months in and around 1986, their relationship was sufficiently adverse for them both to be represented by solicitors who conducted correspondence about a prospective property settlement. Some family court proceedings were commenced: those proceedings may not ever have been actually decided, and the separation ended after about a year.

29 The testator was at some times of the view that Mrs Joan Leader had behaved inappropriately in not transferring to him a 25 percent shareholding in the company which he had given to her. She has never appeared on the share register as the owner of a 25 percent shareholding, and the reference can only be to her entitlement under the family trust. The testator’s views about this are referred to in several forms of statutory declaration prepared for him to complete on occasions when he made wills. There is evidence that he signed one in 1995 and that he did not sign one prepared in 2004. No complete statutory declaration, signed by him, is in evidence; several drafts are. I am not concerned to resolve entitlement to the 9586 co-owned shares in this judgment.

30 Mrs Joan Leader worked in the Motor Inn from about 1975 until about 1979. Her husband Mr Peter Leader worked there full-time from 1968 until about 1979. In 1979 they moved to Gunnedah and conducted their own business, and they have now retired. For a significant period the testator took a very adverse view of Mrs Joan Leader. During their severe estrangement the testator and Mrs Joan Leader did not speak to each other for some years. This estrangement ended in 1997. Her evidence shows that there was not a basis of fact for suggestions he made to the effect that he had paid her for shares in the company but had not got the shares. Mrs Joan Leader’s evidence, which is the only evidence on the subject which I regard as useful, shows that he had no basis for that grievance; there was no arrangement about transferring shares, there was no payment of money for transferring shares, and the only share to which she had a completely clear entitlement was the one management share for which her name stood on the share register. I cannot see what can have been the basis of a feeling that she had somehow failed to deal with shares in some expected way. The testator made a will on 23 January 1996 which did not give any benefits to Mrs Leader; the will he made on 26 June 2000 gave her significant benefits, and so did the document of 15 March 2005.

31 The facts and the circumstances call for careful consideration of the credibility of the evidence of Mr Robert Leech. In effect, he is claiming a large entitlement, worth several million dollars, against the deceased estate, and on important matters he gives the only significant evidence. Cross-examination showed some respects in which his evidence was inaccurate and his recollections of relevant events at different times were not entirely consistent. To my observation his manner in the witness box showed he had a considerable sense of the importance of the controversy to him personally. Indications of some strength of feeling are commonplace in the appearance of witnesses in disputes about relationships within families, in which feelings can run high, and to my observation Mr Robert Leech’s demeanour showed some influence of feelings like these, although not to an unusual or marked degree. I have seen no sound reason why his sincerity as a witness should be mistrusted, but I have taken a careful approach to his evidence, particularly when he attributes strange or unusual behaviour to the testator or to Mrs Emily Leech. Having done so, I regard his evidence as reliable. Mrs Joan Leader’s manner also, to my mind, showed some influence of a sense of involvement and interest, again not to a degree unusual in litigation about family property. It is also appropriate to take a cautious approach to her evidence.

32 Mr Robert Leech’s evidence gave a picture of the personal and business relationship between him and his late father which was very good and very strong, not disturbed by any serious conflict over many years. Until about 2002 he always had a very good relationship with his father, and disagreements on business affairs were rare. He says “After that, there was a shift in my father’s personality and there were occasions when we disagreed, particularly about expenditure on the company’s business. Notwithstanding that, any disagreements which we had seemed to resolve themselves quite quickly up until the events of 24 December 2003” (which refers to the dismissal of Ms Price). In the last year of the testator’s life, serious complaints, grievances and discontentment appeared in the testator which were not there before, accompanied by the testator taking positions which were very adverse to Mr Robert Leech and which were, in varying degrees, strange or bizarre.

33 Mrs Emily Leech and Mr Robert Leech have a very longstanding estrangement, going back to an event in or about 1984 or 1985 when she claimed and reported to the Police that he had assaulted her. The estrangement originated before the separation between Mrs Emily Leech and the testator. Mr Robert Leech entered the office at the Motor Inn and found Mrs Emily Leech enraged and shouting, abusing Mr Terry Munsie an employee. Mr Robert Leech saw Mrs Emily Leech pick up a sharp steel paper spike and raise it above her head as if she was about to stab Mr Munsie. He took the spike from her and evicted her from the office. There was a scuffle between him and Mrs Emily Leech, and she claimed that her arm had been broken and complained to the Police, who charged Mr Robert Leech with assault. The testator did not support Mrs Emily Leech or her position; he did not rebuke Mr Robert Leech and he did not dismiss Mr Munsie. At this time, indeed at all times, Mrs Emily Leech had no management authority, and she had no standing to rebuke an employee in the office.

34 After their separation ended, the testator and Mrs Emily Leech lived together for the rest of his life; about 17 years. The total of the periods during which they lived together approaches 60 years.

35 Mrs Emily Leech’s behaviour was at times wildly erratic and strange, even dangerous. It has been known of her that she pointed a loaded gun at the testator’s head; that she damaged his car with an axe; that she damaged two boats which he owned with an axe. Her behaviour towards Mr Munsie appeared to Mr Robert Leech to be threatening. In more recent years her eccentric behaviour usually took the form of making false accusations about the testator’s association with other women; remarkably bizarre behaviour, such as accusing him of keeping prostitutes in the house, or berating motel guests about their imaginary association with the testator. The testator’s toleration of her behaviour, over many years, is remarkable. There were incidents of strange and troublesome behaviour on her part during the visit which began in October 2003, beginning about four weeks after arrival. She spoke strangely or aggressively to motel guests and to staff.

36 Mr Judd Leech, who worked at the motel since starting about 1995 as a general hand and became the accounts manager, gave evidence that he was present just before Christmas Eve 2003 in the motel office; Mrs Emily Leech came in and said to Ms Joanne Price who was working in the office “You’ve double booked one of the rooms.” Ms Price replied that she had not and explained the booking system using the computer. Mrs Emily Leech became angry and started shouting abuse at Ms Price, using offensive language and accusing her of having a sexual relationship with the testator. She then said that Ms Price’s employment was terminated. Later that day the testator obtained Ms Price’s telephone number from Mr Judd Leech. Mr Judd Leech spoke to the testator and said to the effect that he could not sack people without any reason, that he had to give warnings and state the reasons for termination in a letter, and said “Joanne Price is an excellent employee.” The testator became angry and shouted at Mr Judd Leech.

37 Miss Amber Leech was present and heard the testator say to Ms Price, on the telephone, “Don’t come in for your shift. If you come to the motel there will be a murder.” At a later time, in early January 2004 she heard an exchange between Mr Robert Leech and the testator in which Mr Robert Leech said “You can’t go around threatening to murder people”; the testator denied having done so but also said “You better watch what you say or you’ll get a bullet next.” Later, on 8 January, the testator told Miss Amber Leech that she was to lose her job.

38 It is established clearly that the testator said to Ms Price to the effect that “There will be a murder if you come back to that motel”. However I do not regard this as an intended threat to her life; it was not treated that way at the time: if it was understood as a serious threat to life the response would have been to report it to the Police. In my interpretation it was a vernacular statement that there would be very bad situation; along the lines of vernacular references to “blue murder”.

39 On 9 January 2004 Miss Amber Leech came into the motel office and found her grandparents in Mr Robert Leech’s office. She saw that the power cord to the computer had been severed and that the cord to the modem had been severed. Mrs Emily Leech said to her “I know you have had us under surveillance. We will put an end to that.” And the testator said “You have been watching us through the computer and you’ve bugged our flat”. He spoke angrily to Miss Amber Leech saying “You lying little bitch”. On 9 January he said to her “strange things are going on around here and you know it. You’ll end up in court”. Miss Holly Leech gave evidence which confirmed the evidence of Miss Amber Leech about a conversation in which the testator accused her of lying.

40 Mr Judd Leech found his grandparents in Mr Robert Leech’s office at the motel. The power cord to the motel computer system and the cords to the modem had both been severed. Mrs Emily Leech said “We know you have been using the computer as a surveillance device to watch us.” The testator said “I know that that is a spy device. You have been using it to watch us and intercept our phone calls – but we fixed it.” Mr Judd Leech gives 15 January 2004 as the date of this event: but there is no doubt that it is the same event as that described by Miss Amber Leech.

41 Mr Judd Leech overheard an argument between the testator and Mr Robert Leech, shortly before 10 January in which the testator said “You and your family will be out on the street with nothing”.

42 The testator published this notice in the Classifieds section of the Courier Newspaper, circulating in Narrabri, on 13 and on 15 January 2004.

NOTICE is hereby given that Robert Clive Leech no longer has permission to write cheques drawn on Edgar Leech Holdings P/L Account or Nandewar Motor-Inn account. Signed Edgar Robert Leech, Governing Director of both companies.

43 The testator gave Mr Judd Leech, Mr Robert Leech's son, authority to sign the company’s cheques at about this time.

44 The testator published this notice in the classifieds section of the North West Magazine on 26 April 2004

45 The good relationship which existed for many years between the testator and Mr Robert Leech does not mean that the testator did not have concerns about the manner in which Mr Robert Leech conducted the business of the company and its Motor Inn. The management of the Motor Inn day by day and hour by hour has entirely been the responsibility of Mr Robert Leech since 1986. He has done a great part of the administrative work and also the physical work of conducting the motel and its restaurant and maintaining and renovating the motel units. Mr Robert Leech’s evidence shows that throughout his life he has borne a heavy burden of work, including much physical work, in enterprises associated with the testator, including building work, the conduct of the Motor Inn, several projects of extending the Motel and renovating the motel units and other business enterprises, with assurances of ultimate benefits from the testator. A large body of evidence supports him and shows that he has borne a very heavy burden in this way, and in particular that since 1986 he has incurred the burden of all practical work associated with the management of the motel.

46 At some time in or around 2000 the testator felt and expressed concern about the decision of Mr Robert Leech to purchase a recreational vessel. The price which Mr Robert Leech agreed to pay for the boat was $420,000. At earlier times the testator owned expensive vessels. Mr Robert Leech's evidence shows that he suggested to the testator in 1999 that he should buy a larger boat than the boat of the testator then had, move it to Yamba and use it for fishing and said "I'll buy it in lieu of my superannuation from the company". The testator agreed. After consulting the company's accountant Mr Robert Leech negotiated for and agreed to buy a large ocean-going boat for $420,000; and paid a deposit by a cheque on the company's account. A few days after he told the testator of this the testator telephoned him and expressed concern about Mr Robert Leech’s safety if he took the boat to sea. Mr Robert Leech then decided to end negotiations for the purchase, and obtained a refund of the deposit.

47 Mr Mather, a chartered accountant now retired who acted as the company's accountant between June 1997 and June 2002, gave evidence that he came to know the testator reasonably well as a result of business contacts, several times each year, and that there was an occasion when the testator was critical of the purchase by Robert Leech of an oceangoing vessel. Mr Mather’s evidence is that he can recall only one occasion when the testator was critical of any decision taken by Mr Robert Leech in relation to the company's affairs; and this is significant because Mr Mather’s contact with the testator for purposes relating to the company's business extended over about five years. In Mr Mather's evidence, the testator indicated to Mr Mather that he strongly disagreed with Mr Robert Leech's action in paying a deposit of $25,000 to secure the purchase of an oceangoing vessel. Mr Mather gives the date of this event as "about 2002" but it is probable, indeed fairly certain, that it is the same proposed purchase of which Mr Robert Leech speaks. Mr Mather's oral evidence shows that in his interpretation the testator was upset about the cost of the boat; and not as the evidence of Mr Robert Leech shows, about Mr Robert Leech's safety. There are other references in evidence to the testator's having spoken of the purchase of the boat in terms of dissatisfaction.

48 While there may have been some grumbling, there was not in my finding any ground for serious continuing dissatisfaction nor was there any actual serious continuing dissatisfaction with Mr Robert Leech's conduct and his use of company money to pay the deposit. The testator had approved the purchase of a boat. The testator's later disapproval prevailed and the deposit was recovered. There was no reason for this to be a source of serious concern after the deposit had been recovered, and in my finding events relating to the purchase of the boat did not have continuing significance. It is significant however that Mr Mather's evidence shows that while he was at the accountant, until June 2002, there was no other serious concern expressed by the testator about Mr Robert Leech's dealings with the company’s affairs or property. If there were any serious concerns or difficulties, Mr Mather would have known of them. If there was anyone to tell it was the company’s accountant.

49 There is evidence of serious expressions of concern which should be attributed to periods later than June 2002. Mrs Joan Leader, the testator's daughter, gave evidence that until about 2000 the testator and Mr Robert Leech seemed to have a good relationship, that she observed them work together closely prior to that time and they seemed to her to get on well. In her observation the relationship seemed to deteriorate from about 2000. She gave evidence of the testator complaining to her, a number of times from about 2000, that Mr Robert Leech was spending too much of the company's money, was wasting company money, and was not giving him information in relation to the Motor Inn in answer to requests. She said that in about 2001 the testator complained to her that Mr Robert Leech had built a gazebo at the motel, that it cost "a bloody fortune" and that he was spending too much of the company's money. She also said that in about late 2002 or early 2003 he spoke to her complaining in forceful language about Mr Robert Leech's purchase of the boat and paying the $25,000 deposit using the company's money; he told Mrs Leader that he had required Mr Robert Leech to get the deposit back.

50 I do not attribute significance to complaints to Mrs Leader about Mr Robert Leech not giving information in relation to the motel. The testator was the Governing Director and was very fully empowered. He had contact with the company's accountant Mr Mather. He was in a position to get information about company affairs from the accountant, but he was also in a position to take much more effective action in support of any serious concern than to grumble to Mrs Leader about it. It is not surprisingly that an elderly director who lived at a distance and had far less to do with affairs than he formerly had should grumble to his daughter, but plainly if he had any serious concerns about information not being available to him there was far more effective action he could have taken, and would have taken; he had all the necessary power.

51 Events relating to the boat purchase illustrate this. The testator expressed his dissatisfaction, his wishes prevailed, the boat was not purchased and the deposit was recovered. It is unlikely that the conversation which Mrs Leader speaks of took place as late as late 2002 or early 2003, and it is unlikely that the testator saw himself as having any real cause for continuing dissatisfaction.

52 Mr Robert Leech's evidence shows that the gazebo was built about 2001 at a cost of about $15,000. It is illustrated by photographs in evidence. It is an unremarkable small amenity for guests to take their ease outside their motel rooms, and its cost cannot have disturbed the economics of the Motor Inn. It would not be reasonable to feel serious or continuing dissatisfaction over the construction of the gazebo, and in my finding it had no more than minor significance.

53 There was a significant difference of view about the Service Station and Truck Stop after the expiry of the lease to Mobil. The company owns land, also on the Newell Highway in Narrabri, on which the Service Station and Truck Stop were constructed in 1985. When completed the premises were leased to tenants, first as a Shell Service Station; and later to Mobil Oil Australia Pty Ltd by a lease for five years from 1 December 1996. Mobil continued in occupation after the lease expired. Mobil had repair obligations under the lease which obliged it to keep the property in repair, and to surrender it at expiration in repair having regard to the condition of the premises at the commencement of the lease and with a number of exceptions including reasonable wear and tear. When Mobil gave up possession Mr Burgess advised the testator that the company should engage professional consultants to examine and report on the work required under the repair covenant, specifically for the bitumen pavement of the forecourt which had not been maintained or made good. The testator said that it may be worth taking the matter further with Mobil and that an expert report could be obtained and shown to Mobil. Later in mid-2003 the testator told Mr Burgess that Mr Robert Leech had ignored the recommendation: “He has arranged for the company to do the necessary work to restore the premises. This means that I will not pursue Mobil to make good the premises."

54 Mr Robert Leech's evidence gives the date of vacation as early 2002. Elsewhere it is said to have been about May 2003. His evidence shows that the premises were in need of repair; the pavement had become worn and pitted with potholes from heavy vehicles and the building needed refurbishment. It was his evidence that he discussed with the testator the need for a substantial amount of repair work which he expected would cost in a range of half a million dollars. The testator seemed uninterested in discussing the subject and said "Just put another tenant in there,” and after some more discussion about the need to do improvements if there was to be another tenant said "I will leave it up to you. It will soon be your company anyway." In a later affidavit Mr Robert Leech said that he was unaware of Mr Burgess's advice, and spoke of a further conversation which took place before restoration work began on the truck stop in which the testator expressed the view that the company should sue Mobil for the costs of repairing the truck stop, and Mr Robert Leech said "It would not be worth our while" and gave reasons - that the bitumen pavement had simply been worn out and needed to be replaced. There was some further discussion and Mr Robert Leech said that it was not worth their while to get into a lawsuit with Mobil over a small amount of money. The testator agreed with going ahead with the repair work.

55 Evidence about this discussion shows that the amount of money involved was in the order of half a million dollars. Senior Counsel for Mr Burgess made observations about whether this could be spoken about as a small amount of money. Whether or not the sum of money under consideration was a small amount should be addressed in the context of the prospects and risks of suing Mobil alleging breach of the repair covenant, the value of the Service Station and Truck Stop property overall, and the need to have the repairs carried out if there were to be continuing successful operations and another good letting.

56 Mr Burgess in fact wrote to Mobil on behalf of the company asserting that Mobil had liability for repair. Mr Robert Leech’s evidence (t.100) shows that he saw Mobil's response, that Mobil made a very forceful response and he was not prepared to consider bringing proceedings against Mobil for damages. The testator held on to the idea of claiming damages from Mobil longer than Mr Robert Leech did, but did not take the matter to litigation, as he was in a position to do as Governing Director. It was the testator who instructed Mr Burgess that he would not pursue Mobil. (I interpose that counsel and also myself questioned Mr Robert Leech on the assumption that his evidence did not show that he had told the testator that a cost in the order of $400,000 to $500,000 was involved. Counsel and I were incorrect in this (t.102). I overlooked the passage "I expect it will cost in the range of half a million dollars" in Mr Robert Leech's affidavit of 27 June 2005 paragraph 98. This led the cross-examination of Mr Robert Leech on this subject off course.)

57 I observe that going ahead with repairs to the truck stop did nothing to injure the claim that Mobil had incurred liability under the repair covenant. Once Mobil gave up possession Mobil was no longer in a position to carry out repairs itself, and the only practical course, short of leaving the forecourt and buildings unrepaired, was to repair and consider whether damages should be claimed.

58 There is in my judgment no basis for thinking that it was not good business sense to repair the truck stop and let it out, and to spend $500,000 on doing so. Mr Burgess’s evidence shows that in February 2004 the testator still entertained some continuing sense of grievance over the affair of Mobil's lease and the repairs to the truck stop. This was not a reasonable or rational position to hold. It was not rational to resent Mr Robert Leech having had the truck stop repaired, and if there was a wish to bring some lawsuit against Mobil, the testator could have required the company to do that. Such a lawsuit would probably be a very difficult one, as in the nature of things a service station forecourt undergoes damage as reasonable wear and tear when used by heavy trucks over five years. To my mind the significance of these events is that the testator was unreasonably aggrieved when he spoke to Mr Burgess about this in February 2004.

59 Another body of evidence related to a proposal to construct a convention centre at the motel. The testator and Mr Robert Leech investigated the prospects of doing this in 1993; it was given active consideration, and an architectural design plan was obtained. There was communication with Narrabri Shire Council the owner of a sewer line which would have to be built over. The design work was not completed, some but not all necessary approvals from Narrabri Shire Council were obtained and the work did not proceed. In 1994 the company made a different investment and purchased Bank premises in Moree, which were leased back to the Bank.

60 Mrs Leader gave evidence that the testator said to her “during about 2003” that Mr Robert Leech wanted to build a conference room, and that he had told him not to do it.

61 In the period from about August 2003 to the end of 2003 the testator had at least two telephone conversations with Mr Burgess and on one or two occasions expressed a concern about Mr Robert Leech’s conduct in managing the motel. Mr Burgess’s evidence is that the testator said (Burgess Aff: 24/4/06, para 28) “I’ve got to do something about Bob. The manner in which he is managing the motel is causing me grief. I can’t trust him. Bob spends money as if it doesn’t matter and won’t tell me what is doing. For instance, he has been buying a lot of merchandise and building materials which I think are surplus to requirements and wasteful”. Other grievances were expressed. The testator expressed these concerns again to Mr Burgess at interviews in February and March 2004.

62 The testator and Mrs Leech visited the motel and stayed about two or three days about March 2004. They may have been present there again about May 2004. Mr Robert Leech says “I noticed that he was very abrasive and very aggressive whenever he spoke to me”. He gave evidence of an event when the testator came into the office while Mr Robert Leech was talking to a building contractor on the telephone about the proposal to construct a conference facility at the motel. When asked what he was doing he told the testator that he was talking to a builder about pricing the construction of the conference facility. The testator asked “What conference facility? What are you talking about?” and Mr Robert Leech referred to the development consent obtained from the Council. He referred to engaging an architect to draw plans and said “You were the one who instigated the development of this application with the Council”; the testator denied this and left. This conversation was probably later than 15 March 2004.

63 This conversation probably has a large part in the testator’s decision to place an advertisement in a local newspaper in April 2004. The testator himself initiated the proposal for a conference facility. In and by 1993 it was taken a certain distance and he did not go on with it. In 2004, and perhaps in 2003 Mr Robert Leech was entertaining the idea of again taking up the conference centre project, and sought a quote from a builder for it. This was not reasonably a matter on which the testator could hold a grievance against him; in all practicality, the project could not proceed unless the testator approved of it. When he heard of it he received the information with hostility and denied ever having had a part in the project. While other means could have been used, the means taken by the testator gave effect to the control over company affairs to which he was entitled, so that it was not practical for the project of building a conference centre to be undertaken against his opposition.

64 Mr Robert Leech’s wife Mrs Gai Leech and their three children Judd Leech, Holly Leech and Amber Leech worked at the Motor Inn. From about October 2003 the testator began to express discontentment at the employment of Mrs Gai Leech and of Mr Robert Leech’s sons and daughters. Evidence of Miss Amber Leech shows that the testator told Mr Judd Leech that Mrs Gai Leech was not allowed on the motel premises and he would be sacked if he let her on the premises again. He also told Miss Amber Leech that she and her brother Judd Leech would not be allowed to work at the motel. However they continued to do so and he did not make further objections.

65 The testator also expressed dissatisfaction with Mrs Gai Leech working in the motel business. Her evidence shows that at about the time of their marriage in 1973 the testator gave her some work to do in the motel office. Throughout her marriage she has had significant family responsibilities but she worked intermittently in the motel office and in the motel laundry and was paid wages for her work. From 2002 on she regularly worked part-time in the motel office; and this continued until the time she gave evidence. Her evidence shows that on 8 January 2004 she was at the motel office at about 5 p.m.; the testator was there, he was very agitated and he shouted at her in a threatening voice, saying "I told you you are not to work her. I am going to get the Police. You are not having anything to do with the Motel. You are all liars and mongrels. Make the best of that old girl. It won't last. You're not entitled to work here and you don't get paid a wage. That lying lunatic husband of yours has no rights - as he will find out next week." On 14 January 2004 when she was working at the motel office the testator walked into the office looking very agitated and said to this effect "You've got no right to be here. Get out of the office. You're not employed by the Company. If you come here again I'm going to get the Police". She told him that she was there to work, was being paid a wage and had a right to be there. The testator continued to speak in threatening terms and said: “Bob is a lying bastard. You won’t be living here any more. I’ll have you all out on the street. You haven’t heard the last of it girl. You haven’t heard the last of it” and then left the motel office. The testator and his wife left the motel the following day, without speaking to Mrs Gai Leech again.

66 Mr Burgess's affidavit shows that at their meeting on 4 February 2004 the testator said to him to the effect that Mr and Mrs Robert Leech were mismanaging the motel, that Mr Robert Leech was being manipulated by his wife, that she should not be working in the business, that he had told her a number of times that she must not work in the motel and "Bob keeps overriding my instructions for Gai not to work in the business". When Mr Burgess pointed out that it was necessary to employ someone to do the bookkeeping if Mrs Gai Leech did not the testator said "There are plenty of people they could get to do the books." In fact Mrs Gai Leech was not the bookkeeper: Mr Judd Leech was the bookkeeper and had been for some years.

67 At no point in the evidence is any sound reason suggested why Mrs Gai Leech should not have been employed to work in the motel; as she had been at times over about 30 years. The closest approach to a reason is the assertion by the testator to Mr Burgess that she was manipulating Mr Robert Leech: there is no evidence which could support this. Nor does any evidence suggest that before his denunciation on 8 January 2004 the testator had ever told her that she was not to work in the motel. Mrs Gai Leech’s employment has not been in management positions. She has not been in a position to make financial decisions or to take part in management of the business. Her evidence that she has not had disagreements with staff members or been a disruptive influence was not challenged.

68 Mrs Gai Leech's employment is not an instance in which Mr Robert Leech failed in any way. Quite otherwise, the testator's wish that Mrs Gai Leech would not work in the motel was part of an array of indications of great hostility towards Mr Robert Leech and those associated with him, which began before 8 January 2004 with the events relating to Ms Price.

69 The testator decided to reduce and reduced the company’s annual contribution to Mr Robert Leech’s superannuation fund in the 2003 financial year to $5,000; in earlier years it had been $50,000. He did this without consultation or discussion. On 15 March 2004 he explained this decision to Mr Burgess by saying that as a result of his loss of trust in Mr Robert Leech he had fixed him up and reduced the usual contribution to the superannuation fund. This is an overwhelmingly clear illustration of the completeness of the testator’s control over the company affairs when he decided to exercise his power. In the absence of any reasonable basis for loss of trust in Mr Robert Leech, it is also an illustration of irrational hostility towards him.

70 Mr Charles J. McCarthy is an accountant who practiced in Tamworth as the principal of McCarthy Management Consultant Pty Ltd, providing accounting services and financial advice. He has professional qualifications, he carried on the practice from 1983 until 30 June 2005 and he has very wide experience advising clients in rural industries and in property. Before and while conducting this practice he had wide experience in business management; and also local government. He has been Mrs Emily Leech's personal accountant for about 20 years but until 12 January 2004 he did not act for the testator, the company or any business associated with the testator. When he first became Mrs Emily Leech's accountant she was separated from the testator. In correspondence during their separation and conflict Mr McCarthy took some firm positions on behalf of Mrs Emily Leech. The testator at times expressed dissatisfaction with Mr McCarthy and his part in Mrs Emily Leech's affairs. On 12 January 2004 Mrs Emily Leech telephoned Mr McCarthy and asked him to speak to the testator. The testator asked him to come (from his office in Tamworth) to the motel at Narrabri and speak to Mrs Leech and himself about an industrial problem in which an employee was claiming unfair dismissal, and about an issue with his son and his wife misusing company funds. An appointment was made and on 13 January 2004 Mr McCarthy went to Narrabri and had a discussion with the testator in a room at the motel for about two hours. Mrs Emily Leech was present but took little part in the meeting.

71 The testator and Mr McCarthy discussed the unfair dismissal claim for about 30 minutes and then spoke for about 1-1/2 hours about Mr Leech's concerns about Mr Robert Leech and Mrs Gai Leech’s mismanagement of the company's affairs. Mr McCarthy advised in favour of negotiating financial settlement of the unfair dismissal claim. The testator told Mr McCarthy that Mr Robert Leech had been misusing the company's bank account, that he was using money for his own personal use and "is always buying things that are of no use to the business". The testator did not say specifically what things Mr Robert Leech was buying that were of no use to the business. When the testator spoke about what he said was misuse of company's funds he became very upset, stood up and walked around in an agitated way. He said that he had placed an advertisement in the local Narrabri Newspaper to warn people that Mr Robert Leech did not have the authority to sign company's cheques. Mr McCarthy advised to him to see the bank manager and change the signatories on the bank accounts. The testator said that he had done that. He told Mr McCarthy that Mrs Gai Leech was a disruptive influence on the staff, that he had told Mr Robert Leech and Mrs Gai Leech that Mrs Gai Leech was not to work in the office, but they refused to follow his directions. Mr McCarthy advised that placing the advertisement and changing the bank signatories was all that the testator could reasonably do to stop Mr Robert Leech from misusing the company’s bank account. This advice was the only substantial outcome of the discussion. Mr McCarthy made a careful note but did not give written advice. Mr McCarthy's advice responded specifically to concerns expressed by the testator; he did not make a general review of the courses open to the testator.

72 On 16 February 2004 Mrs Emily Leech sent Mr McCarthy by fax a copy of a notice of appointment made by the Industrial Registrar for a teleconference hearing before Commissioner Macdonald on 23 February 2004. On 19 February 2004 Mr McCarthy had a telephone discussion with the testator about the coming teleconference and again recommended that he consider settling the matter. The testator said "I will think about it".

73 Mr McCarthy had considerable experience dealing with clients who were elderly and might not have mental capacity. He saw no issue of mental incapacity in his discussions with the testator, who appeared to him to have no difficulty in following the conversation or in remembering relevant facts or events, discussing his perceived difficulties or dealing with financial affairs.

74 The testator had a very full opportunity, during an interview of two hours with Mr McCarthy to express in specific terms his concerns about expenditure of money, purchase of unnecessary items and the unsuitability of Mrs Gai Leech to work in the office; but what he told Mr McCarthy was not specific about these matters. The practical steps which Mr McCarthy suggested to control company expenditure were steps which the testator had already taken. Consulting Mr McCarthy, a new adviser, and seeking outside advice illustrate the testator’s control over company affairs and understanding of his position. Some time passed and there was considerable trouble before the testator took Mr McCarthy’s advice to settle Ms Price’s claim; he did this in May 2004, and certainly made no move towards doing so at the teleconference on 23 February 2004, notwithstanding Mr McCarthy’s repeated advice.

75 In the teleconference Mr Robert Leech took the position that Ms Price should be reinstated. Senior Counsel for the plaintiff contended that it was inappropriate, and surprising to the testator, that Mr Robert Leech participated in the teleconference. Mr Robert Leech’s evidence is that he told the testator, in advance of the conference, that he would take part in the telephone conference and state the facts as they were; that the testator was in the wrong. The testator said that he expected Mr Robert Leech to make a statement backing him up and Mr Robert Leech refused. As Mr Robert Leech was the Managing Director of the employer company his participation cannot have been surprising, nor should it have been surprising that he showed openness to Ms Price’s position; conciliation is an object and method of the Industrial Relations Commission. Statements made by the testator during the teleconference show confusion or complete misunderstanding about the time and the manner in which Ms Price had been dismissed. The controversy was not resolved at the teleconference and went further, a hearing in the Commission was appointed to take place in Narrabri in May and the testator after first instructing Mr Burgess instructed another solicitor to conduct the proceedings; and reached a monetary settlement at a late stage.

76 Toleration of Mrs Emily Leech’s strange behaviour is one thing; taking any notice of her grievances, and supporting her in a conflict with Ms Price, an employee, to the extent of endorsing a decision which Mrs Emily Leech was in no position to make that Ms Price should be dismissed is quite another thing, and shows that there was a change in the testator’s outlook and evaluation of Mrs Emily Leech’s thinking and conduct for which it is very unlikely that there was a rational basis; none can be seen. Endorsing the dismissal of Ms Price, maintaining this position against Mr Robert Leech’s judgement, and resisting Ms Price’s claim for unfair dismissal, both as to re-engaging her and as to paying her any damages, show in my finding that the testator’s business judgement had failed, and had failed in a respect which brought him into conflict with Mr Robert Leech. Mr Robert Leech had the practical responsibility for running the company and the motel as managing director, his judgement was against dismissal of Ms Price and against resisting her unfair dismissal claim, but this had no influence on the testator, who expressed hostility about Mr Robert Leech’s position. Mr Robert Leech did not want Ms Price to be handled conflictually; he did not want to resist her claim, and he told the testator this and showed this by his participation in the teleconference. Written statements about the event made by Mr Robert Leech’s son and daughter left little room for successfully opposing Ms Price’s claim of wrongful dismissal; these appear to have had no effect on the testator. Mr McCarthy also advised settlement of the claim, on the first occasion when he had an opportunity to give advice; the advice of Mr McCarthy, with wide experience in business consultancy and knowledge of many businesses, should have carried a great deal of weight; and if the testator had had any business judgement at all he would have seen that this was a conflict to be avoided, or to be ended in whatever way would limit the expense; in the circumstances, a happy outcome for the company could not be hoped for.

77 Dr Edward McCarthy is a general practitioner who qualified in 1988 and was consulted by the testator from time to time at the Yamba Medical Centre from about February 2000 until about June 2004. He saw the testator many times, treated him for many significant conditions and prescribed and supervised his medication. Significant conditions included atrial fibrillation, injuries in his motor accident in 2000, angina, asthma, hypertension and several other adverse conditions. Dr McCarthy saw the testator on 14 October 2003 and noted "no change in chronic illness symptomatology, weight constant, appetite normal, bowel habits satisfactory, no new serious symptoms”. He saw the testator again on 16 January 2004, on 13 February 2004 for cardiac failure review, on 26 February 2004 for immunisation, medication review and health assessment and again in March, April and in May (six times) and June (three times). It was his practice to make a note of any concern about a patient's cognitive ability and mental health, but he did not make any note or comment relating to any such matter.

78 A report by Clarence Valley Imaging (Dr Fran Newman) (Ex A p155) reports on a CT brain scan conducted on 27 September 2000. The findings are unremarkable and the report bears a note that the patient was to be informed that the result was normal. The findings are recorded thus: "There was no intra-cerebral nor intra-cranial abnormality identified and in particular no chronic subdural was seen. Moderate cerebral atrophy is present, sucal markings are prominent and there is increased density in the inter hemispheric fissure. Ventricals are minimally enlarged. Orbits, sinuses and skull soft tissues appear normal. No skull structure nor bone injury was detected." Evidence shows that, for a person of the testator's then age, the presence of moderate cerebral atrophy was normal and there is no reason to associate it with any disorder.

79 A report by Dr Craig Dyer of North Coast Radiology dated 9 August 2004 (Ex A/303) relates to a CT Head scan of the testator conducted on that day at St Vincent's Hospital Maclean. There is a heading "early dementia.? Treatable pathology." The report also says:

There is prominence of the ventricular system and subarachnoid spaces in keeping with the generalised cortical atrophy, commensurate with the patient’s age. There is periventricular low density in keeping with chronic ischaemic change in the deep white matter

Probable old lacunar infarcts demonstrated in the external Capsular regions bilaterally. There is no evidence of acute infarction, haemorrhage or a space occupying lesion

Conclusion

80 Dr Tuly Rosenfeld is a Consultant Geriatrician and Physician whose experience includes important academic and hospital appointments, one of which he still holds, Fellowship of the Royal Australasian College of Physicians and private consultancy practice.

81 In Dr Rosenfeld's opinion there was nothing in the brain scan of 2000 that would point to any brain disease which would have had an effect on testamentary capacity. In Dr Rosenfeld's opinion the cerebral atrophy as reported on the CT scan conducted in 2000 (which refers to shrinkage of the brain) is very commonly reported in brain scans of a person of 79, the testator’s then age, and is commonly reported irrespective of whether underlying clinical problems are present or not. In the brain scan of 2004 cerebral lacunar infarcts were reported. Dr Rosenfeld said that the lacunar infarcts reported were located in the external capsular regions bilaterally, that is, in deep white matter deep in the brain; the infarcts were not in the frontal lobes which are the areas where the executive function is principally located. Executive function refers to a range of brain functions that have to do with thinking, reasoning, logic, consideration and planning; and affect testamentary capacity. In Dr Rosenfeld's interpretation the testator suffered a range of acute medical problems in 2004, later than March; these problems eventually led to his death, and would have caused him to suffer from varying degrees of confusion or agitation, quite commonly occurring in an older person who suffers acute medical problems. Dr Rosenfeld referred to a note in medical records of August 2004 which show “query early dementia”. In explanation of dementia Dr Rosenfeld said that according to strict DSM-IV criteria some very specific matters had to be present before a patient has the syndrome of dementia; the problems had to include memory disturbance and one or more problems to do with cognitive functioning; in addition to memory disturbance there should be, as examples, problems with speech, or problems with planning, or with being able to walk, referred to as the practice of walking. There also had to be problems with getting out and about and functioning in society and with the patient being able to look after himself. Vernacular use of "dementia" includes many people who have very very early stages of dementing illness; with enough time and if the underlying disease progresses far enough these patients would probably get dementia. In Dr Rosenfeld's view the testator did not have dementia as at 15 March 2004, but it was likely that he would get dementia later in the year. Dr Rosenfeld did not feel able to say that the testator definitely did have dementia later in 2004 and observed that if a person had mild underlying cognitive impairment and was sick, it is quite common and usual that the symptoms and clinical signs would become more developed and overt while the patient is sick.

82 In Dr Rosenfeld's interpretation of the medical and hospital records the testator was suffering from a number of chronic and acute medical problems which included congestive heart failure and ischaemic heart disease in the period from about April 2004 leading up to the time of his death, and from June 2004 suffered from some deterioration in his cognitive function, in the context of and as a result of his worsening medical status. Dr Rosenfeld firmly disagreed with observations by Dr Parmegiani which attributed Mr Leech's decisions in making his will to the syndrome of dementia. Dr Parmegiani had said that the medical evidence for dementia, as of March 2004, was scant, but Dr Rosenfeld, in language of some firmness, said that Dr Parmegiani had reached his conclusion inappropriately and incorrectly, and said to the effect that the weighty conclusion that the testator suffered from grossly impaired judgment was based on what was at best unsubstantiated hypothesis that the testator suffered from dementia. Dr Rosenfeld expressed the positive view that on 15 March 2004 the testator was able to comprehend and appreciate the claims to which he ought to give effect under his will and gave the opinion that it was very improbable that the testator was not so able. Dr Rosenfeld gave the interpretation that there appeared to be considerable care and discretion in the manner that the estate was apportioned. In my understanding Dr Rosenfeld was not expressing approbation of the outcome, but referring to the detail as showing that the testator had not simply just made an ad hoc decision to change the will without also addressing matters of detail.

83 In Dr Rosenfeld 's interpretation the Lacunar infarcts observed on the C. T. brain scan of 9 August 2004 were likely to have been changes consequent upon the testator’s deteriorating medical status from April 2004 onwards; this was an interpretation of probabilities and not a statement excluding the possibility that they occurred earlier. The report of the C.T. brain scan performed on 27 September 2000 noted no intra-cerebral abnormality other than moderate cerebral atrophy. In Dr Rosenfeld's interpretation it was reasonably likely that deterioration and lacunar infarcts on the brain scan may have resulted from cessation of Warfarin medication on 16 June 2004. Warfarin is an anticoagulant which prevents clotting of the blood and is used to prevent occurrence of stroke in older patients with atrial fibrillation; as was the case for the testator. Dr Rosenfeld did not offer any criticism of the decision to cease medication with Warfarin. Other evidence shows that Warfarin treatment was suspended on 16 June 2004 because of the risk that confusion on the part of the testator might cause over-dosage. Dr Rosenfeld acknowledged that the infarct could be months or years old. Even if the lacunar infarcts had been present before May 2004 (and it was not possible to establish when they came into existence) their presence did not indicate dementia. Rapid decline began with pneumonia in May 2004. Although the testator had over a number of years been diagnosed with a number of significant conditions, from his admission to hospital in May 2004 onwards there were illnesses and hospital admissions on a number of occasions; the tempo or the degree of illness was increased from May. Dr Rosenfeld was not prepared to accept the suggestion that the decline started about July 2003, with heart failure in July 2003, pulmonary hypertension in 2003, pneumonia in May 2004 and continued throughout about 12 months. In reaching his opinion Dr Rosenfeld did not specifically address the testator's medical history in October 2003 except that he had noted that there was pulmonary hypertension at that time.

84 In Dr Rosenfeld's interpretation it would not be correct to see instances reported by Mr Robert Leech and others of forgetfulness, mood and personality changes and swings as pointing significantly to the presence of underlying cognitive decline, because of observations at other times that the testator was normal and reasonable; Dr Rosenfeld's opinion supported the explanation that forgetfulness, mood and personality changes and mood swings referred to in evidence were accounted for by situational factors, meaning environmental factors, things that were going on around him, stress, upset, anxiety, conflict and worries: external factors impacting upon the testator.

85 Dr Rosenfeld went, at least to some small degree, into appraising the quality of the dispositions and their wisdom, and this he was (in my respectful view) in no way in a position to do. He did not have any real basis for forming a judgment on whether the provision made for Mrs Emily Leech was appropriate, and this view seems to have some effect on the basis for his opinion; although not more than an incidental effect. In Dr Rosenfeld’s interpretation there was altogether adequate indication in the testator's contemporaneous circumstances for the references in medical and hospital records from May 2004 on to confusion, uncooperative behaviour and (in one instance) to possible dementia; these could be quite adequately related to the patient’s then circumstances rather than to some long-standing condition. In particular Dr Rosenfeld observed "A delirium is an acute reversal or response to being acutely unwell, and that does not imply that somebody has dementia".

86 Dr Rosenfeld was referred in cross-examination to the affidavit evidence of Amber Leech and of Judd Leech about events in January 2004 in the motel office when it was found that the power cords to the computer and the cords to the modem had been severed, and Mrs Emily Leech and also the testator made statements to the effect that they had been kept under surveillance; and when Judd Leech later arrived similar statements were made to him, to the effect that the computer was a spy device "… but we fixed it” which in the context referred to cutting the cord. Dr Rosenfeld said that those matters did not affect his opinion relating to the testator's ability to make a will; he explained in these terms (t.218, l.33)

A. Because I take everything as a given and then I need to understand the situation in terms of the history and what I have been provided, and my interpretation of that event, given that that's what happened, is that at that time he was not functioning all that well, that something had either upset him or had made him respond in a way that's clearly not quite normal.

Q. If things upset him, he may react in a way that isn't quite normal. Is that what you say?

A. And that the next thing I would like to know is whether or not he was acutely ill at that time; for instance whether there was an illness that was described at that time and whether there were any causes for confusion – confused - sorry, delirium episode at that time.

87 I pointed out that on the evidence that period did not fit in with acute illness but fell within a period of some years where there were a series of significant illnesses with acute episodes. Dr Rosenfeld said: (t.217)

So if he was having a bad day for whatever reason, then that would explain why he could respond in this way, and so bad day could be that he was ill or unwell, or that he - there's a range of possibilities that would explain why he responded in a way that looks clearly like he couldn't understand or had an abnormal belief about that computer. But again, it needs to be seen in the context that there is variability in his medical status and that he could have had times when he was more ill. That's all I can say about that. I don't know - have more evidence about his medical status at that time.

88 I do not accept Dr Rosenfeld's view on the significance of these facts. In my judgment their significance goes far beyond what could be attributed to having a bad day in a period of some years where there were a series of quite significant illnesses and acute episodes, but no acute episode was actually occurring at the time. It is altogether inadequate and out of scale to class the event as having a bad day. It followed by a few days (and is not possible to say exactly how many days) the events in which Mrs Emily Leech purportedly dismissed Ms Price, and the testator gave her full support in what was manifestly an unreasonable position; a departure from his pattern of behaviour over many years in which he had controlled and contained strange behaviour by Mrs Emily Leech. The testator endorsed the claim made by Mrs Emily Leech that Mr Robert Leech's family at the motel had had Mrs Emily Leech and the testator under observation, that the computer had been used for that purpose, and that had been ended and the situation had been fixed by cutting the cords. The beliefs and behaviour of both the testator and Mrs Emily Leech were floridly deranged; if ordinary everyday rationality had been within his grasp, the testator would have seen this, would not have endorsed Mrs Emily Leech's claim and would not have endorsed cutting the cords, or made the claims that there was spying in progress. Explanation in terms of a delirium event or having a bad day is quite inadequate and does not accommodate itself to the series of bizarre events, instances of failed judgment and exhibitions of irrational hostility of which the event forms part.

89 These events show the testator exhibiting florid irrationality an aspect of which was hostility towards members of Mr Robert Leech’s family. In my opinion Dr Rosenfeld's interpretation was not appropriately accommodated to the enormity of this event. Dr Rosenfeld was not prepared to say that the event showed sound judgment. In my interpretation it shows, obviously, extremely unsound judgment. Dr Rosenfeld also offered an interpretation of the appointment of Mrs Emily Leech as Governing Director that it was not necessarily an indication of grossly impaired judgment. Having regard to the whole array of facts in evidence, it is my view that a decision to appoint Mrs Emily Leech as Governing Director, or mere contemplation of the possibility, is completely beyond the range of sound judgment, and indicates that there was something seriously wrong with the testator's ability to appreciate what testamentary dispositions it was appropriate for him to make. This indication is not improved by the circumstances that Mr Burgess pointed out to the testator and the testator knew that the disposition and appointment as Governing Director was ineffective for want of a share qualification. Knowing that the provision of the will was ineffective only increases the obviousness of its unsuitability. Dr Rosenfeld's interpretation that the appointment of Mrs Emily Leech as Governing Director could have been a strategy to bring the family together has no basis, in my opinion.

90 Dr Parmegiani's reasons, experience and current appointments in psychiatry are forensic; they are related to investigation and assessment of injuries associated with claims and litigation. His expertise is more in the assessment of psychiatric symptoms arising out of injuries than it is in geriatric medicine. He has made a number of assessments of testamentary capacity, and given evidence on that subject perhaps 10 times. The most important respect in which Dr Rosenfeld differed from Dr Parmegiani's views is that Dr Parmegiani said, in relation to the condition of the testator on 15 March 2004 (Report p.8): “The medical evidence is scant, but there are some indicators that Mr Edgar Leech was suffering an early dementia." Dr Rosenfeld rejected this with very firm expressions, saying to the effect that it was a significant error to conclude that the testator was suffering from grossly impaired judgment relating to dementia, and that this conclusion "… constitutes a significant oversimplification that ignores a range of situational, interpersonal and social issues which would rather, in my opinion, explain Mr Leech's behaviour without resort to any such conclusion." Dr Rosenfeld also rejected the attribution by Dr Parmegiani of Mr Leech's decision to the syndrome of dementia, saying “evidence of [dementia] is either absent or at the very least, insufficient to found any such conclusion." Dr Rosenfeld expressed the view that Dr Parmegiani's conclusion was made "on the basis of what is, at best, unsubstantiated hypothesis."

91 Dr Parmegiani's expressions relating to the testator’s condition of dementia appeared to me to be, at the most, tentative. Referring to the dismissal of Ms Price as the "December 2003 incident" Dr Parmegiani's report said (p7):

Mr Edgar Leech's reaction to the December 2003 incident indicated that a significant change of personality had occurred. The most likely explanation is that Mr Edgar Leech was suffering from the early manifestations of dementia. His judgment was impaired, while other functions were relatively intact.

The brain’s frontal lobes are responsible for judgment, impulse control and planning. This area of the brain is affected in early dementia. The medical evidence is scant, but there are some indicators that Mr Edgar Leech was suffering from an early dementia.

92 Dr Parmegiani went on to refer to the cerebral CT scan conducted at the Maclean District Hospital on 9 August 2004 and to other records from that period in 2004 very late in the testator’s life. In Dr Parmegiani's opinion, the report of the C.T. Scan of 9 August 2004 suggested that the testator's cerebral blood flow was impaired and he commented that lacunar infarcts are small strokes (areas of brain damage) caused by inadequate blood flow. Dr Parmegiani also said "The clinical records indicate that Mr Leech was generally alert and oriented, but that he also experienced periods of confusion" and mentioned references in hospital records - an entry at St Vincent's Hospital Maclean of 8 June 2004 which among other things says "Remains mildly confused plus somewhat uncooperative … seems unlikely that he will be home to live independently in the future …,” a mental health assessment on 28-31 July 2004 which indicates "Disorientated at times," an entry of 4 August 2004 which states "slept for long periods. Confused when awake" and a nursing transfer form of 13 August 2004 which listed a number of medical conditions including early onset of dementia.

93 Dr Parmegiani said (Report p9): “On balance, the medical records give an indication of an ageing and failing brain, but this information per se does not constitute definite proof that Mr Edgar Leech had a disorder of the mind, which would poison his affections to his son." At one time (before 21 March 2006) Dr Parmegiani expressed this view: "the most persuasive evidence was the change in behaviour towards his wife and his son in 2003 and 2004. In conjunction with the medical evidence, it provides persuasive evidence that Mr Leech suffered a disorder of the mind, namely dementia, which affected his relationship towards his son". Later he retracted the proposition that the testator suffered a disorder of the mind namely dementia, and expressed his view that the testator was in the early stages of dementing illness (see t.248). Dr Parmegiani went on to refer to events which he classified as gross errors of judgment including advising Ms Price that she could be murdered, supporting his wife and suddenly firing an employee without reasonable cause, and appointing his wife to the position of Governing Director.

94 Dr Parmigiani also expressed the view that the testator suffered progressive cerebral vascular disease and said that dementia is the outcome of the cerebral vascular disease; but he accepted that at 15 March 2004 the testator did not have a number of indications and criteria required for a DSM-IV diagnosis of dementia - not suffering from marked memory loss, maintaining independent function in daily living, not living in an assisted facility but at home with his wife and had not incurred severe loss of intellectual function.

95 It was not Dr Parmegiani's evidence or his interpretation that the testator was suffering from a mental disorder, or from dementia, in a way which could be diagnosed as such on 15 March 2004. In oral evidence Dr Parmegiani said that the CT scan and radiological evidence were of little help and could not either confirm or exclude the presence of dementia. The "gold standard" or best indication would be psychometric testing where a person is asked to solve problems and complete a number of questionnaires; “in the absence of that evidence all you have left is the person's behaviour and an analysis of the person's behaviour can tell me whether their brain and executive function, in this particular case, is working or not." (T.226)

96 Dr Parmigiani also said (t.226): “So when asked to assess whether a person was suffering an abnormality of the mind all an expert is looking at is the behaviour because really there is nothing else to go on.” He expressed the opinion that on 15 March 2004 the testator’s mind was affected by early dementia. He said (t.227): “… Mr Leech's brain and cognitive function was gradually beginning to fail over time and at some point he would have probably fulfilled the criteria for dementia, probably late in 2004, but before that his behaviour and his decision making appeared to me to be impaired to the point where he did not have the capacity to make a will."

97 It was suggested in cross-examination that Dr Parmigiani’s interpretations are inconsistent; but he explained his position in a way which I have found satisfactory and consistent with his earlier report and evidence (t.230).

98 Dr Parmegiani said "It is likely that Mr Edgar Leech lacked judgement when considering legal advice at the time he executed his last will." In Dr Parmegiani's view "there is insufficient evidence to suggest that Mr Edgar Leech suffered a psychotic disorder during his life, or at the time he executed his will and testament on 15 March 2004." Dr Parmegiani referred in his report to an event which evidence does not bear out, as he says that Mr Burgess told Mr Robert Leech that Mr Burgess had stern words with the testator about the will. After referring to several other considerations Dr Parmegiani’s report said (p 11) "In summary, on the balance of probabilities, Mr Edgar Leech was not suffering insane delusions. He irrational behaviour was most likely the result of grossly impaired judgement secondary to dementia, which caused him to misinterpret his son's actions. His impaired judgment led to the poisoning of his relationship with his son, after a constructive partnership that lasted over 40 years."

99 A number of instances referred to in evidence in which the testator expressed various kinds of dissatisfaction with events associated with the motel and Mr Robert Leech’s conduct of the business there are capable of interpretation as ordinary concerns affecting conduct of business at the motel. Expressions of dissatisfaction with the construction of the gazebo, expressions of dissatisfaction with some purchases of goods for use in the motel, expressions of dissatisfaction with Mr Robert Leech's wife working in the motel, deciding to reduce Mr Robert Leech's superannuation contribution and others, do not seem, when each is considered separately, to give real support to an adverse finding about testamentary capacity. It is the cumulation of these complaints, and their appearance after many years of acceptance and, it should be understood, approval of Mr Robert Leech's management, that brings them under consideration. Their vehement and forceful expression is also relevant. Dr Parmegiani dealt with these instances in this way (t.233) “Taken individually the answer is yes, but looking at the overall picture and the number of decisions and the impact then I would reach a different conclusion." He agreed that some aspects of the will which the testator made were perfectly rational (t.234).

100 Marked variations in the provisions made by the testator in successive wills for his children are not indications of irrationality; Dr Parmegiani accepted this. Although it should be accepted that the testator had a tendency to change his will according to his current feelings for his son and daughter, earlier changes did not take place in the context of the array of strange events and behaviours which preceded and continued after making the will on 15 March 2004. Mr Burgess had good opportunities to make observations of the testator at interviews in February 2004 and again in March, and the observations which he made, and gave in evidence, are not adverse; the testator's behaviour and expressions gave Mr Burgess indications of normality, and did not indicate forgetfulness or confusion. Dr McCarthy, a general practitioner who observed and from time to time treated the testator from 2000 until mid-2004 had no concerns about his cognitive ability and did not ever make any notation about his cognitive ability or mental health. Neither Dr McCarthy nor any other medical professional is known to have given the testator any psychometric testing or seen any occasion to do so. In relation to this Dr Parmegiani said that such tests are normally administered when the cognitive decline is becoming obvious: I regard this as plainly correct.

101 In cross-examination Dr Parmegiani was confronted with the suggestion to the effect that statements by the testator relating to the computer being used as a spy device could be attributed to paranoia, and that paranoia is not necessarily indicative of dementia; and it was suggested that it would be likely if he was suffering from dementia that instances of paranoia would be ongoing. An assumption of the cross-examiner’s challenge was that this was an isolated incident and that there were no other indications of paranoia. In my opinion it cannot be said that this is so. Dr Parmegiani did not accept that an isolated incident of a paranoia type is more likely to be indicative of delirium rather than dementia (t.244). It was pointed out that it was not known whether there was situational stress on that occasion which would cause him to become delirious or confused. Dr Parmegiani answered: “Well, there is the ongoing tension that he has mentioned to various parties, but normally that kind of stress would not lead to paranoia unless there was something wrong with that aging brain”. Dr Parmegiani was not prepared to accept that an isolated incident of paranoia was more consistent with delirium than with the dementing process; he said it was not necessarily more consistent "But on balance, probably yes".

102 Dr Parmegiani was of the view not that the testator had threatened murder or conveyed that there would be a murder, but that it was a gross error of judgment to use such language – “I think it was just an inappropriate thing to say to an employee" whether or not an employee herself understood that it was a threat that she would be murdered.

103 In the light of Mr Robert Leech’s estrangement from her, of which the testator must have been fully aware, and of his prominent position in all the company’s practical affairs, as Managing Director and the only person in a management position present and operating the Motel from about 1986 when the testator retired, to attempt or to intend to appoint Mrs Emily Leech as Governing Director was so markedly strange and impractical a measure as to justify the conclusion that it was an irrational thing to do. If Mrs Emily Leech had become Governing Director she and Mr Robert Leech as Managing Director would have been unable to work together, the company’s affairs would have been serious disrupted to the point of complete impracticality, and Mr Robert Leech would have been unlikely to continue in the position he had long held. The Governing Director appointment in the 2004 document is a sufficient indication that there was something seriously wrong with the testator’s judgment at the time. The fact that the testator put this appointment in the document of 15 March 2004 knowing (because Mr Burgess told him) that it would not take effect for want of share qualification makes it even more bizarre. It was irrational to make such a provision knowing that it would not be effective. Although the testator had been aware at an earlier time of the need for share qualification, he seems to have lost sight of it by the time he made his 2000 will with a similarly ineffective Governing Director appointment. The presence of the ineffective appointment in the 2004 document is, even without any other matter, enough to cause serious doubt of testamentary capacity at that time.

104 Over all, the events relating to Ms Price show that in January 2004 and later the testator exhibited extremely poor business judgement, adhered to the results of Mrs Emily Leech’s conduct when it was quite unreasonable to do so and did not acknowledge and did not see the implications for the position he was taking of the views of Mr Robert Leech and of the facts as reported by Mr Robert Leech and his son and daughter. These events were closely associated in time with his outbursts against Mrs Gai Leech and her children, with changing authority for signature of cheques so as to take away the authority of Mr Robert Leech the Managing Director yet strangely to confer authority on Mr Judd Leech his son who was a relatively junior employee; advertising Mr Robert Leech’s lack of authority to sign cheques in the local newspaper; consulting Mr Charles McCarthy, a new accountant, but without giving specific matters of complaint to Mr McCarthy or doing anything which might involve Mr McCarthy, who had much relevant experience, in changing the management arrangements. Then too the testator and Mrs Emily Leech left the motel precipitously without farewells. Overall and in a number of ways these events show that the testator was in a state of irrational hostility directed towards Mr Robert Leech and persons associated with him.

105 In many ways, and to significant people, the testator’s behaviour did not exhibit discernible signs of incapacity or mental disorder; Mr Burgess and Mr McCarthy, each in a good position to make observations, made no such observation; nor did Mr Burgess’s secretary Mrs Coates, who had long experience in law offices.

106 In my finding the testator’s mind was affected, at the times when he considered his dispositions, instructed Mr Burgess and executed the document of 15 March 2004, by extreme hostility towards Mr Robert Leech and beliefs about the existence of grievances against him which were the products of grossly impaired judgment and were not rationally based. He had fixed and incorrigible false beliefs about his son’s behaviour and his merits which he did not resolve by ordinary reasoning processes: if such processes were available to him he would have been able to see that his grievances were not justified. Although the medical evidence for it is scant, the testator’s conduct makes it probable, in my finding, that he was suffering from some early or incipient form of dementia. In whatever way his condition should be categorised according to medical science, it fell short of testamentary capacity, in my judgment.

107 The decisions which underlay the will of 15 March 2004, which very greatly increased the benefits conferred on Mrs Emily Leech and very greatly reduced the benefits conferred on Mr Robert Leech, go beyond the wide range of choices open to the testator; in my finding they are products of irrational hostility held by the testator against Mr Robert Leech and his family; the testator was not capable of bringing a sound disposing mind to bear on what provision he should make for Mr Robert Leech. As a matter of probability Dr Parmegiani’s assessment that the testator was probably in the very early stages of dementing illness is in my finding correct. For these reasons I pronounce against the document of 15 March 2004 on the ground that the testator then lacked testamentary capacity. The document which should be admitted to Probate is the will of 26 June 2000.

108 If probate is to be granted of the will of 26 June 2000 Mr Burgess should amend his statement of claim so as to claim probate of the earlier document if he wishes to do so. If Mr Burgess does not, he should renounce, and Mr Robert Leech or some person beneficially interested under the earlier document should apply for letters of administration. I propose to dismiss the claim for probate as it is now formulated, but I will keep the proceedings before me and defer making formal orders until I see what is to be done about probate of the will of 26 June 2000.

109 ORDERS:

1. Amend the Statement of Claim to add the following additional claim: (2) Alternatively, an order that Probate of the will of 26 June 2000 referred to in the Amended Cross-claim be granted to the plaintiff.

2. Direct pursuant to s.42(4) of the Wills Probate and Administration Act 1898 that non-publication of notice of the intended application for probate of the will of 26 June 2000 shall not bar the granting of probate of that will.

3. On the plaintiff’s claim for probate of the document of 15 March 2004 give judgment for the defendant.

4. On the plaintiff’s alternative claim for probate of the will of 26 June 2004 give judgment for the plaintiff.

5. On the cross-claim give judgment for the cross-claimant and grant probate to the cross-defendant in accordance with order 4.

6. Order that the costs of the plaintiff of the proceedings upon the claim and cross-claim be paid or retained by the plaintiff out of the estate of the testator assessed on the indemnity basis.

7. Order that the plaintiff cross-defendant pay the defendant cross-claimant’s costs of the proceedings out of the estate of the testator.

8. Proceedings are referred to the Registrar to complete the grant.

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CITATION:	BURGESS v LEECH [2007] NSWSC 700
HEARING DATE(S):	14-18/05; 21/05/2007
JUDGMENT DATE :	19 July 2007
JURISDICTION:	EQUITY. Probate List
JUDGMENT OF:	Bryson AJ at 1
DECISION:	see para [109]
CATCHWORDS:	WILLS PROBATE and ADMINISTRATION - testamentary capacity - testator aged 83 - inofficious dispositions and indications of irrational hostility towards son, Managing Director of testator's family company - medical evidence did not clearly establish definable mental illness but suggested possible early dementia - extended consideration of evidence of testator's conduct, beliefs and attitudes - finding against testamentary capacity - probate to be granted of earlier will - decision on facts.
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Derrett v Hall (Unreported. High Court, 4th February 1942) Romano v Romano & Anor [2003] NSWSC 436 Romano v Romano [2004] NSWCA 37 Shaw & Anor v Crichton (CA Unreported 23 August 1995) Timbury v Coffee (1941) 66 CLR 277
PARTIES:	Damian Burgess - Plaintiff Robert Clive Leech - Defendant
FILE NUMBER(S):	SC 120756/2004
COUNSEL:	Ms J. Needham SC and T. Saunders - Plaintiff A. Hill and P. Jeffriess - Defendant
SOLICITORS:	Burgess Lawyers - Plaintiff Palmers Solicitors - Defendant