Chahine v Wenzler

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 28638

IN THE MATTER of the estate of PAULINA WENZLER, deceased

BETWEEN:

NORMA CHAHINE	Plaintiff
v
ROBERT STEVEN WENZLER	Defendant

---

JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11 and 18 April 2024
DATE OF JUDGMENT:	17 June 2024
CASE MAY BE CITED AS:	Chahine v Wenzler
MEDIUM NEUTRAL CITATION:	[2024] VSC 317

---

WILLS AND ESTATES – Testamentary Capacity – Whether testator had testamentary capacity at time of making last will – Court satisfied testator had testamentary capacity – Last will of deceased to be admitted to probate – Banks v Goodfellow (1870) LR 5QB 549; Norris v Tuppen [1999] VSC 228.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies	Tisher Liner FC Law
For the Defendant	Mr R Wells	The Law Professionals

HIS HONOUR:

Paulina Wenzler made a will on 23 May 2018 (‘the 2018 will’). She died on 28 December 2019. The question in this case is whether at the time of making the will in May of 2018 Ms Wenzler had testamentary capacity or not.

The plaintiff, Norma Chahine, was a neighbour of Ms Wenzler and appointed executor under the 2018 will. She seeks a grant of probate for that will.

The defendant, Mr Robert Wenzler, is one of Ms Wenzler’s nephews and along with his two brothers, Richard Wenzler and Daniel Wenzler, was appointed executor of Ms Wenzler’s estate under an earlier will made on 30 August 2012 (‘the 2012 will’). He opposes the grant of probate for the 2018 will and says that at the time his aunt made that will she lacked testamentary capacity.

In this judgment in order to avoid confusion and without meaning any disrespect, I will refer to members of the Wenzler family by first names. Each of Ms Chahine and Robert referred to Paulina in their evidence as Paula, and in the 2012 will she is described as Pauline. I will refer to her as Paulina.

Paulina did not marry and had no children. She had five brothers and two sisters, all of whom predeceased her. Paulina and Emma, one of her sisters, had resided together at 28 Waiora Road, Rosanna until Emma’s death in 2009. After that Paulina lived at 28 Waiora Road alone until her death in 2019.

Paulina’s brother Peter was the father of Robert, Richard and Daniel. He died in 2001. Peter had been married to Anna (Robert, Richard and Daniel’s mother). Peter and Anna had divorced in 1995.

Paulina also had a niece, Katrina, her brother Michael’s daughter.

The two wills

The 2018 will:

(a) appoints Ms Chahine as executor;

(b) makes specific bequests:

(i) to Dr Ian Wallis in the sum of $80,000;

(ii) to Ms Chahine in the sum of $200,000;

(iii) to Robert Chahine (Ms Chahine’s son) in the sum of $100,000; and

(iv) to Robert in the sum of $50,000; and

(c) bequeaths the remainder of the property (after payment of expenses, duties and taxes) to Austin Health.

The 2012 will:

(a) appoints Robert, Richard and Daniel as executors;

(b) makes specific bequests:

(v) to Robert Chahine in the sum of $5,000;

(vi) to Dr Ian Wallis in the sum of $25,000;

(vii) to Katrina in the sum of $50,000; and

(c) divides the balance of the estate between Robert, Richard and Daniel.

Relevant principles

The relevant principles for assessing testamentary capacity are well established and were not in dispute between the parties. Both parties accepted that the test in Banks v Goodfellow[1] as restated by Ashley J in Norris v Tuppen[2] applied:

To have testamentary capacity a testatrix must
(1) be aware of and appreciate the significance of the act which she is embarking upon;
(2) be aware in general terms of character, extent, and value of the estate with which she is dealing;
(3) be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims;
(4) have the ability to evaluate and discriminate between the respective strength of those claims.[3]

[1] (1870) LR 5 QB 549; [1861-73] All ER 47; 39 LJQB 237.

[2][1999] VSC 228.

[3]Ibid [330].

In this matter Robert accepts that as at the date of execution of the 2018 will Paulina satisfied the awareness requirements in paragraphs 1 to 3 of the passage cited above. Robert’s case is that Paulina did not have the ability to ‘evaluate and discriminate between the respective strengths of those who had a claim upon her bounty’ (to use the somewhat archaic expression which seems favoured in this area of discourse).

Norris v Tuppen also provides a convenient summary of the shifting evidentiary burden regarding testamentary capacity:

The burden of establishing the competency of the testatrix lies upon the propounder. The question is to be determined upon all the evidence. The burden is the civil standard, notwithstanding references by courts to vigilant examination of the whole of the evidence in the event of doubt.
Although the ultimate burden of establishing competency always remains upon the propounder, the evidentiary onus may shift. It will do so if the propounder establishes a prima facie case of competency. The propounder may do so by proving due execution of a will (or codicil) rational on its face.
If a prima facie case of competency is established an evidentiary onus falls on the caveator to adduce evidence raising doubts as to competency. If such evidence is addressed, the question of competency is to be considered, as I have said, on the evidence as a whole – the propounder bearing the burden of proof.[4]

[4]Ibid [331]–[333].

In the circumstances of this case I am satisfied that:

(a) Ms Chahine has established a prima facie case of competency by proving due execution of the 2018 will rational on its face;

(b) Robert has adduced evidence raising doubts as to competency, in particular the evidence of Dr Berberovic and Dr Hewitt; and

(c) As a result, Ms Chahine bears the onus of proof in relation to competency on the usual civil standard.

In determining whether the deceased had relevant testamentary capacity:

(a) Medical evidence will be important, but is not conclusive;[5]

(b) The presence of dementia or delusion does not necessarily imply a lack of testamentary capacity;[6] and

(c) In every instance the judgement as to testamentary capacity is one for the court to be determined upon all of the facts in the case.[7]

[5]Ibid [335]; Romascu v Manolache [2011] NSWSC 1362, [199].

[6]Norris v Tuppen [1999] VSC 228, [336]–[337].

[7]Romascu v Manolache [2011] NSWSC 1362, [199]–[200].

For the reasons which follow and having regard to the totality of the evidence, I am satisfied, on the balance of probabilities, that at the time she made her 2018 will Paulina satisfied all four limbs of the Banks v Goodfellow test, had the requisite testamentary capacity and that probate of the 2018 will should be granted to the plaintiff, Ms Chahine.

Overview of the evidence

At the trial the plaintiff called three witnesses:

(a) Ms Chahine;

(b) Mr Vincent Sier, a solicitor who took instructions for, prepared and witnessed the execution of the 2018 will; and

(c) Dr Jennifer McDowall, a neuropsychologist who examined Paulina on 11, 14 and 18 January 2019.

The defendant called:

(a) Robert;

(b) Richard;

(c) Dr Renee Hewitt (formerly known as Dr Renee Lichter) a neuropsychologist who reviewed Paulina on 30 August and 5 September 2018; and

(d) Dr Nadja Berberovic, a neuropsychologist who assessed Paulina on 2 March and 9 March 2018.

In addition to the evidence from those witnesses, a number of documents were received into evidence including:

(a) letters or reports from Dr Chandra Krishnamurthi, a general practitioner at the Bellfield Medical Centre;

(b) the Bellfield Medical Centre file for Paulina; and

(c) various notes from medical practitioners and social workers from the Austin Hospital.

I deal with the evidence in detail below but it is appropriate to make some general observations regarding the evidence.

All of the witnesses struck me as truthful and endeavouring to do the best they could to assist the Court in their evidence.

English is not Ms Chahine’s first language. I am certain that her level of understanding and comprehension is more than adequate when it comes to dealing with her day-to-day activities. However, it was plain in the course of her evidence that on occasions she simply did not understand questions that she was being asked or thought she understood and proceeded to answer in a way which made clear she had not.

One instance in the evidence is illustrative of this issue. Counsel for Robert was cross-examining Ms Chahine in relation to some matters recorded in notes at the Austin Hospital. Those notes recorded that Ms Chahine had expressed concerns regarding a recent decline in Paulina’s ‘cognitive abilities’. Counsel put to Ms Chahine that she had expressed concerns regarding Paulina’s cognitive abilities to the hospital social worker. It was plain from Ms Chahine’s response that she had no idea what the word ‘cognitive’ meant.

This interchange is telling because it points up two issues which impacted the evidence of Ms Chahine:

(a) First, it demonstrates the caution which needs to be exercised in relation to the answers which Ms Chahine gave in cross-examination. As I have indicated, in some instances, it is apparent that Ms Chahine’s answers are non-responsive (or at least only partially responsive) to the questions asked. I do not regard this as being indicative in any way of evasiveness but rather, from my observation, it is much more likely that this was a result of her language skills; and

(b) Second, some caution needs to be exercised in relation to what the hospital records record Ms Chahine as saying. I have no doubt that those taking the records faithfully sought to record and interpret what they thought she was saying, but I am satisfied that Ms Chahine is just as likely to have misunderstood some of their questions as she was to have misunderstood some of the questions in cross-examination.

Even allowing for difficulties with English, I am persuaded that Ms Chahine’s evidence on occasion involved a degree of overstatement. Particularly in relation to those aspects where she sought to minimise the extent to which Robert was involved in the care of his aunt. It is also the case that it was not always clear what particular time frame Ms Chahine’s answers related to. Sometimes this was, I think, because of confusion arising from her difficulties with the English language and sometimes it stemmed from the usual vagaries of memory which we all have.

Notwithstanding the matters I have outlined above which require some level of caution in relation to Ms Chahine’s evidence, I am satisfied that she and Paulina were very close, that she cared for Paulina deeply and that she provided her with very significant support in the later stages of her life and as her physical ailments grew.

Robert gave generally careful and, in my view, truthful answers to the questions he was asked. Robert started the case alleging undue influence on the part of Ms Chahine. He abandoned that stance shortly before the trial, but nonetheless in his evidence was prone to downplay the extent to which Ms Chahine provided assistance to Paulina and prone, in my view, to overstate the degree to which he was primarily responsible for her welfare up until 2018. Overall, I am satisfied that Robert cared for his aunt and between 2015 and February 2018 took an active role in providing her with various forms of assistance as she physically ailed.

I should note at this point one aspect of Robert’s evidence which does paint a slightly different picture. His evidence is that, approximately monthly, between 2015 and February 2018, Paulina would ask him to go to the bank and withdraw cash for her to live on. His evidence is that for a period of approximately four and a half months between 19 February 2018 and 28 June 2018 Paulina made no request for any withdrawal and he ‘didn’t really think about it’. It would seem odd that someone concerned about his aunt’s welfare would not at least have enquired during that period whether she had sufficient cash on which to live.

Mr Sier gave evidence as to the circumstances of taking instructions for the 2018 will and the process surrounding its preparation and execution. He did not have the benefit of his full file, although he did have two lengthy file notes from two separate conferences to refresh his memory.

Robert submits that I should find that Mr Sier’s evidence was inconsistent and unreliable. I deal with some of the specific matters in that regard below, but at this juncture it is appropriate to record that whilst I accept that in some respects Mr Sier’s evidence was limited by an absence of recollection, I did not find him an unreliable witness in the least. The ‘inconsistencies’ in his evidence to which Robert pointed were often not in truth inconsistencies and, as I discuss below, do not affect my overall assessment of Mr Sier as a helpful witness whose contemporaneous file notes in particular assist in the resolution of the issues in this case.

Dr Nadja Berberovic has a PhD in developmental neuropsychology and has been a fully registered clinical neuropsychologist since 2006. She is in private practice at Brain Matters and has a range of memberships of professional associations, including a full membership of the College of Clinical Neuropsychologists, Victoria. She saw Paulina and prepared a report regarding her cognitive capacity in March 2018. As noted above, she was called to give evidence for Robert.

Dr Renee Hewitt (formerly Renee Lichter) has two Masters and a PhD in psychology. In 2018 she was the senior clinical psychologist at the Austin Health-Royal Talbot Rehabilitation Centre. At the time of giving evidence her primary employment was as a neuropsychology educator at Alfred Health in addition to which she continued to hold a casual retainer at the Austin Health-Royal Talbot Rehabilitation Centre. Dr Hewitt saw Paulina on 30 August and 5 September 2018 and wrote a report regarding Paulina’s cognitive capacity in October 2018. She was called to give evidence for Robert.

Dr Jennifer McDowall has a Doctor of Psychology (Clinical Neuropsychology). She is also a fully registered clinical neuropsychologist, a fellow of the College of Clinical Neuropsychologists and member of the Australasian Society for the Study of Brain Impairment. She is a Senior Clinical Neuropsychologist with Melbourne Neuropsychology Services and saw Paulina on three occasions in January 2019 and prepared a report on Paulina in February 2019. She was called to give evidence for Ms Chahine.

Each of the neuropsychologists who gave evidence struck me as careful and considered. Ultimately, for reasons which I explain below, I have found the evidence of Dr Jennifer McDowall most persuasive as to the critical question surrounding Paulina’s capacity to make a will.

2012 to August 2015

Paulina did not drive and had a number of physical conditions and some mobility issues which resulted in her using a disability scooter to get around. Nonetheless in the period from 2012 to 2015 it is evident that she lived a largely independent life.

In 2012, as I have noted above, Paulina made the 2012 will. At the same time she also executed an enduring power of attorney in relation to financial matters and an enduring power of attorney in relation to medical treatment, in both instances in favour of Robert.

In the period from 2012 to 2015, notwithstanding the execution of the powers of attorney, I am satisfied that Robert and his brothers did not play a particularly active part in their aunt’s life. As might be expected, they saw her for birthdays and at Christmas time and I am sure from time to time on other occasions. In this period Robert did not exercise any of the powers under the power of attorney.

Throughout this period I am persuaded that Ms Chahine would have had more frequent contact with Paulina. She was a neighbour and a friend. She gave evidence, which I accept, that she or members of her family saw Paulina almost every day and helped her with taking her shopping and to outings, taking out or bringing in her rubbish, mowing her lawns, occasionally providing food and the like.

September 2015 to December 2017

In or around September 2015, it appears Paulina’s physical health began to decline and she required further assistance.

In September of 2015 Austin Health conducted an assessment which concluded:

Ms Wenzler resides at home alone.
Ms Wenzler suffers from numerous medical conditions and requires assistance with personal and domestic ADLS [activities of daily living]. She also has RDNS in place re leg ulcers.
Referrals will be made to council for personal care and homecare. If these services are not sufficient family can refer to ACAS for home care package.
Recommend approval for high level respite and permanent care if need arises.
High respite is sought due to ongoing issues with leg ulcers and diabetic/insulin management.

Robert’s evidence, which I accept, was that from about this time he became much more engaged in Paulina’s welfare. He said that from this time until June 2018 he took Paulina to medical appointments. It is apparent that records from the Austin Hospital in this timeframe refer on occasions to Robert attending with Paulina and in social work notes and the like he is often referred to as a ‘supportive’ nephew.

Further, from about this time onwards until February 2018, Robert says that he would visit Paulina weekly on a Monday and do shopping on her behalf and collect any bills that needed to be paid. Robert’s evidence was that in this period Paulina would send him to the bank once every four weeks or so to withdraw an amount, usually $5,000 in cash. Robert would collect the passbook from her, go to the bank and withdraw the cash using his power of attorney. He would then return to Paulina’s home and give her the cash and the passbook back (although on some occasions he accepted he did keep the passbook and bring it back the following week). Robert’s evidence was that Paulina would then give him money from the cash withdrawn to pay for any groceries he had bought and to reimburse him for any of her bills which he had paid and that she would then keep the balance of the cash for her own use.

I have noted above that each of Ms Chahine and Robert in their evidence tended to downplay the extent to which the other might have provided support or assistance to Paulina. I am satisfied that throughout this period, from September 2015 through until the end of 2017, Robert was actively engaged in supporting Paulina in the way he described in his evidence. I am also satisfied though that, in this same period, Ms Chahine and her family continued to provide Paulina with very active support in the form of almost daily visits and assistance with the variety of activities I have described above.

I am satisfied that Richard and Daniel in this period visited Paulina occasionally. Their level of support and assistance to Paulina was nothing like that provided by Robert whose level of support and assistance was in turn less constant and frequent than the level of support and assistance provided by Ms Chahine and her family.

Two separate matters arose in this period, one of which Robert sought to rely on as part of his submission that Ms Chahine’s evidence was generally unreliable and the other which Ms Chahine sought to establish in final submissions as a reason Paulina had become concerned that Robert was seeking to take control of her finances.

The gifts note

In his evidence Robert said that in or around September 2015 Paulina provided him with a piece of paper which she said recorded all the money she had given to Ms Chahine. Robert says he took a photo of the list. I accept that Paulina showed him such a note.

The note is partly comprised of numbers and partly written in Macedonian. Robert translated the Macedonian aspects in evidence. The note is headed ‘Dala Normi’. Robert’s evidence was ‘Dala’ means gave and he took ‘Normi’ to be a reference to Ms Chahine, whose first name is Norma. There are then recorded a number of figures which total some $55,662. The note records writing next to some of the figures, but most have no notation.

It is not clear that, despite its heading, all of the amounts recorded were in fact gifts to Ms Chahine. An amount of 1,431 is described as ‘Endru Loto’ which Robert interpreted as his aunt’s spelling of ‘Andrew Lotto’. Robert had no idea who Andrew might be. Two further amounts may have been gifts to members of Ms Chahine’s family:

(a) an amount of 1,000 is described as ‘Za Weding’ which Robert interpreted as ‘for wedding’; and

(b) an amount of 200 is described as ‘Za Bebi’ which Robert interpreted as ‘for baby’.

It is also not apparent over what time frame the amounts in the note cover. A figure of 10,000 is notated ‘EMA|JA’ which Robert interpreted as ‘Emma and I’. Given Emma died in 2009 this would suggest that the amounts recorded in the note extend at least before that time.

In any event, if the document is taken at face value it demonstrates that Paulina and Ms Chahine had a very close relationship which went beyond the usual relationship of neighbours and indeed beyond the usual relationship of even close friends. Paulina (and it would seem Emma as well) was prepared to confer very significant financial benefits on Paulina and her family. There is no suggestion that during the period to which the note applies Paulina suffered any mental incapacity or that there was any undue influence on the part of Ms Chahine, rather on any view the note records a series of quite substantial gifts to Ms Chahine. In the circumstances, therefore, the note is evidence which strongly supports Ms Chahine’s evidence of the closeness of the relationship between her and Paulina.

I do not accept the submission that the note demonstrates Ms Chahine’s general unreliability as a witness. Ms Chahine was cross-examined regarding amounts of cash she had received from Paulina. Initially, her evidence was that apart from $28,000 she received to purchase a car in 2018 and small amounts for children’s birthday gifts and the like, she had not received anything. However, it became clear in the course of cross-examination that she accepted that following Emma’s death she had received a second-hand vehicle as a gift. It is not entirely clear from Ms Chahine’s evidence whether she received cash to purchase the second-hand vehicle or whether the vehicle was Emma’s and given to her by Paulina. In any event, it is clear that Ms Chahine regarded this as something promised by Emma. I do not regard her initial response to questioning about this gift as indicating a general unreliability in her evidence – when the question was clarified she was immediately forthcoming regarding the car and she was not cross-examined specifically regarding the other items on the list.

The residential care facility

In October 2016 Robert and Anna made inquiries of a residential care facility as to the costs and expenses which would be associated with Paulina moving into the facility. Robert’s evidence was that this was at Paulina’s request and that subsequently when they discussed the matter with her she indicated she did not wish to move into the facility and that that was the end of the matter.

Ms Chahine’s counsel cross-examined Robert on this issue to the effect it was his and his mother’s idea to explore a residential care facility and that Paulina was upset by this and regarded it as an attempt to take over her affairs. Contemporaneous notes from the Austin Hospital in October 2016 record that:

(a)       family in process of getting Mrs Wenzler to Resicare;
(b)       nephew has planned for placement post-acute admission;
(c)       patient… would like to be independent to return home.

In light of the Austin Hospital record above and her subsequent conduct, I am satisfied that it is likely Paulina was not as keen on exploring the issue of residential care as Robert and Anna. Robert may have thought he explored the possibility at Paulina’s request. Paulina subsequently was adamant that this was something she had not wanted and typified it as something Robert had tried to impose upon her.

The question of a potential move into residential care was plainly not something which immediately prompted Paulina to seek to change her will. From October 2016 through to 2018 Robert continued to visit weekly and continued to take Paulina to medical appointments. There is no evidence that Paulina took any active step to change her will until around February 2018. I am satisfied however that this issue did form a part of the reason Paulina sought to change her will. I deal with this issue further below.

The lead up to the 2018 will

In early 2018 Paulina decided she wished to change her will. The evidence does not establish precisely when, but based on the evidence of Ms Chahine, Dr Berberovic and Dr McDowall it appears that:

(a) At some point Paulina visited her then solicitors, Morgan Legal, in order to change her will;

(b) Morgan Legal, it would seem, suggested to Paulina that she should obtain evidence from a medical practitioner as to her capacity;

(c) Ms Chahine took Paulina to a clinic at Northland, which Paulina had been attending since the retirement of her long-standing GP Dr Wallis; and

(d) At the Northland Clinic she was seen by a Dr Sathasivam, who, having only recently ‘inherited’ Paulina as a patient, referred her to Dr Berberovic for neuro-psychological assessment.

Dr Berberovic conducted an assessment over two days on 2 and 9 March 2018 and wrote a report dated 12 March 2018 concluding that Paulina was ‘currently seen to lack sufficient cognitive capacity to alter her legal will at this point in time’.

Below I discuss in detail the report of Dr Berberovic and the limitations of that report, notwithstanding the relatively emphatic way in which its conclusion is expressed.

Paulina was unhappy and dissatisfied with the conclusion Dr Berberovic reached. She approached Ms Chahine and asked her to suggest another doctor whom she could visit for assessment. Ms Chahine spoke with her own general practitioner, Dr Krishnamurthi, who practised at the Bellfield Medical Centre. Dr Krishnamurthi evidently suggested to Ms Chahine that Paulina could attend the clinic and see a general practitioner who was available.

In April 2018, Paulina arranged an appointment with Dr Krishnamurthi. Ms Chahine drove her to that appointment but did not sit in on the appointment.

The progress notes from the Bellfield Medical Centre were tendered in evidence by Robert. They record Dr Krishnamurthi’s initial consultation with Paulina on 27 April 2018 for a period of just over half an hour. The notes record:

Cognitive tests done – scored 10 out of 10. Mentally alert. Wants to change her will – she had done originally a will 10 yrs ago to benefit her nephew. Now the nephew wants to take her property away so she wants to see…

There is then an entry appended which was added on 5 July 2018 which reads:

Souring relationship between her and her nephews. They make out she has cognitive deficits, they come to her house and say they want to sell her house and put her in a nursing home. They laugh and joke about her to her face and have no concern for her welfare or her feelings. She wants to see a lawyer and change her will.

Dr Krishnamurthi referred Paulina to Adams Maguire Sier (‘AMS Lawyers’) in Ivanhoe for the purpose of making a will. Ms Chahine telephoned AMS Lawyers to make an appointment and on 8 May 2018 Paulina met with Mr Sier of AMS Lawyers to give her instructions regarding a new will. AMS Lawyers were not Ms Chahine’s lawyers. Mr Sier’s evidence, which I will discuss in more detail below, was that Ms Chahine did not sit in on this conference with Paulina whilst he took instructions on 8 May 2018.

AMS Lawyers provided Paulina with a draft will and draft power of attorney on 10 May 2018. On 14 May 2018 Paulina rang Mr Sier to make some changes to that will.

On 18 May 2018 Paulina again attended the Bellfield Medical Centre where she saw Dr Krishnamurthi. The notes from the Bellfield Medical Centre from that day record:

Examination:
She had 5 brothers and 2 sisters - all of them have died, she is the only one alive. She only has 3 nephews who want to make her crazy, all unemployed and preying on her, wanting to put her in the nursing home and take her money. She is mentally alert to make her own descisions (sic). Mental assessment test was 30 out of 30.
Counselled her regarding her safety.
Actions:
Letter Created - re. Bellfield MC Letterhead to To Whom It May concern.
Letter Printed - re. Bellfield MC Letterhead to To Whom It May concern.

Consistent with what is recorded in the notes Dr Krishnamurthi prepared a letter dated 18 May 2018 addressed ‘To whom it may concern’ regarding Paulina which states:

This is to state that I performed a minimental test as part of the assessment for dementia and Alzheimers disease. She scored 30 out of 30 which rules out mental incapacity. On assessment there is no mental confusion. There is mental clarity.

She wishes to do a will and a power of Attorney both financial and Medical and she is capable of making these decisions herself.

Mr Sier did not have a clear recollection of asking Paulina to obtain a letter from Dr Krishnamurthi in relation to her mental capacity, but I infer that it is likely he did and it was for this reason that she attended the Bellfield Medical Centre and obtained that confirmation.

On 23 May 2018 Paulina once again attended the offices of AMS Lawyers and on that day she executed the 2018 will.

At the same time she executed a power of attorney in favour of Ms Chahine. I am satisfied that Ms Chahine was uncomfortable in her role under the power of attorney and that as soon as she could, was happy to pass this responsibility on to another solicitor at AMS Lawyers.

Events after the 2018 will

On 22 June 2018 Paulina withdrew an amount of $33,000 from her account, $28,000 of which appears to have been given to Ms Chahine in order to purchase a new vehicle so that Ms Chahine could assist in driving Paulina.

For the avoidance of doubt, I should make clear that I do not regard that gift as reflecting any lack of mental capacity on Paulina’s part. As I have noted above, at a time when there was no doubt about Paulina’s capacity, she (perhaps together with Emma) appears to have gifted Ms Chahine another vehicle or cash to purchase a vehicle to approximately the same value.

On 28 June 2018 Robert took Paulina to a medical appointment at the Austin Hospital. His evidence, which I accept, is that when they got back to Paulina’s house she told him that:

(a) she did not want to see him anymore;

(b) she had changed her will and removed him from being power of attorney;

(c) she had changed her general practitioner;

(d) on the last occasion she had spoken with his mother she felt something like his father’s spirit come into her and then sweep into his mother;

(e) he had been stealing money from her bank account; and

(f) after he denied he had stolen anything, she refused to elaborate and said ‘wait until you get a letter from my lawyer’.

On 3 July 2018 Paulina was found unconscious and taken to Austin Hospital.

Also on 3 July 2018 Mr Sier wrote to Morgan Legal apparently in the belief that they acted for Robert. Relevant portions of the letter are:

We are further instructed that [Robert] attended at [Paulina’s] property yesterday and removed his belongings and gave back the key to her property which he had in his possession.
As we have advised by phone, Robert’s appointment as attorney has been revoked and we enclose copy (sic) of the Power of Attorney appointing Norma Chahine dated 23 May 2018.
We are in possession of a doctor’s certificate indicating that the time of making a new Will and this Power of Attorney, Paulina had capacity to do so.
If Robert Wenzler is your client can you please advise him that he is no longer Paulina’s attorney and she does not wish to have him come to her property again.

On 6 July 2018 Robert’s lawyers, The Law Professionals, wrote to AMS Lawyers in the following terms:

Our client instructs that whilst visiting your client on Thursday 28 June 2018, she told him that he would no longer be her attorney and to expect a letter from her lawyers. Our client was shocked to hear this and asked your client if there was a particular reason behind her decision, as she had never previously indicated a dissatisfaction with him or his conduct as her attorney; rather, your client had always expressed her appreciation to our client for his weekly assistance and to his siblings who maintained her property on a regular basis.
Your client told our client she believed he had stolen thousands of dollars from her. Our client denied doing any such thing and told your client that she should contact her bank and request a formal investigation if money has in fact been going missing. Her actions on that day were puzzling, as were others including her recent decision to change her G.P.
Our client instructs that on Tuesday 4 July 2018 he was contacted by the Austin Hospital and advised that your client was in hospital after being found unconscious in her home. Your client remains in the Austin Hospital in an unconscious state. We confirm your advice of this day that your client has signed a revocation of power of attorney and has appointed another attorney. Please have the new attorney contact the Austin Hospital as a matter of urgency. Additionally, please forward a copy of the revocation to our office.
With regards to the allegation put forward by your client that our client had stolen money from her, our client vehemently denies that he has stolen anything from your client.

On 13 July 2018 AMS Lawyers responded to the 6 July 2018 The Law Professionals letter enclosing a copy of the revocation of Paulina’s enduring power of attorney in favour of Robert. The letter went on:

Paulina has made further enquiries in relation to her funds and been advised by her financial adviser that the money was taken from her Commonwealth Bank Account and invested in a capital reducing income stream which has now run down over the last 7 years.

We do not intend to go into the reasons why Paulina is unhappy with your client other than to say she was concerned at the manner in which she was being, in her view, bullied by Robert and his mother. …

She does not want Robert to visit her in the future.

Robert submitted that Mr Sier could not have taken instructions from Paulina whilst she was in hospital and that Mr Sier ultimately conceded that he must have taken instructions from Ms Chahine. A full reading of Mr Sier’s evidence on this point is not so clear cut. In truth Mr Sier had no recollection regarding how he took instructions in July 2018 (and as previously mentioned did not have the benefit of his full file). Ultimately, he gave evidence that if Paulina was unable to give instructions it would have been appropriate to take instructions from Ms Chahine under the power of attorney and he may have done so. In any event nothing turns on this. Despite Robert’s attempt to rely upon this issue as undermining Mr Sier’s credibility or reliability it did not do so.

Whilst she was in the Austin Hospital Paulina was suffering sepsis from an infection that had started in her leg and spread, and later from a urinary tract infection. Dr McDowall gave evidence and it does not appear to be in dispute that Paulina’s conditions could cause delirium. Indeed Dr Hewitt, who assessed Paulina on 30 August and 5 September 2018, said that many of the delirium symptoms such as disorientation and fluctuation in alertness and intentional impairments were ‘resolving’ at the time of her assessment.

Robert placed some weight in his opening submissions on a variety of things which Paulina said to Richard and which were recorded in various notes during her stay at the Austin Hospital and later at the Austin Health–Royal Talbot Rehabilitation Centre. In the circumstances, I do not place any weight on those matters as evidencing any permanent impairment in Paulina’s mental state. Matters such as referring to Robert’s children when he had none are much more likely to have been symptoms of delirium caused by the various physical conditions which Paulina suffered and was being treated for during her hospital stay. They are not evidence of a general and sustained decline in her mental capacity.

At the Austin Hospital and the Austin Health–Royal Talbot Rehabilitation Centre, Paulina was looked after by a team that included medical practitioners, occupational therapists and social workers. In the course of her stay it is apparent that this multidisciplinary team became aware of the report of Dr Berberovic and became concerned at the possibility that Paulina may not have capacity to make decisions regarding financial and legal matters. As a result Paulina was referred to Dr Renee Hewitt (then known as Dr Renee Lichter). Dr Hewitt assessed Paulina over the course of two days on 30 August 2018 and 5 September 2018 and then on 2 October 2018 wrote a report detailing her concern that Paulina was presenting with ‘persistent neuro-cognitive impairments’ and was ‘unable to demonstrate adequate understanding of the purpose and implications of appointing an EPOA’ (financial).

As a result the Austin Hospital made an application to the Victorian Civil and Administrative Tribunal (’VCAT’) for the appointment of a guardian and administrator. Shortly after Robert made his own application. Paulina then instructed AMS Lawyers to obtain an independent assessment of her capacity from Dr McDowall. Dr McDowall assessed Paulina over the course of three days on 11, 14 and 18 January 2019 and subsequently provided a report in which she concluded, having reviewed all of the evidence and the reports of Dr Berberovic and Dr Hewitt, that Ms Wenzler had the capacity to make financial decisions, the capacity to appoint or change an enduring power of attorney and had testamentary capacity.

On 22 May 2019 VCAT dismissed the application by the Austin Hospital and Robert’s application in relation to the enduring power of attorney and for the appointment of a guardian and administrator.

On 30 December 2019 Paulina died.

I am satisfied that as Paulina’s health declined in the period between July of 2018 until her death, her need for care and assistance increased. In that context Ms Chahine played an increasingly important role in providing near daily care, support and assistance to Paulina. In that same period and in accordance with Paulina’s wishes Robert ceased to play any role in providing assistance to Paulina.

Mr Sier

Mr Sier gave evidence regarding the conferences he had with Paulina leading to the execution of the 2018 will. He did not have the benefit of his full file, but was able to refresh his memory by reference to file notes of his conversations with Paulina.

The first file note is undated, but Mr Sier gave evidence that it was a file note he had taken on 8 May 2018 when he first met with Paulina. It commences by noting Paulina’s instructions that she wishes her friend of 32 years, Norma Chahine, to be her executor and then records specific gifts to Dr Ian Wallis of $80,000, Norma Chahine of $200,000, Robert Chahine of $70,000 with the residue to the Austin Hospital.

Mr Sier’s note then contains the following:

Robert, Richard and Daniel all out of will; they just want my money and they don’t do anything for me.
They want to put me in a nursing home. I don’t want that. They intimidate me and I am frightened of them.
EPA for Norma to look after finances after I can’t.

Stapled to the file note is a note apparently in Paulina’s handwriting which Mr Sier said she had given him. It is headed ‘things to do’ and contains the following:

Dr Walas $80,000
Robi $150,000
Norma $200,000
Robert $70,000

Mr Sier was a very experienced suburban practitioner. At the time he took instructions for the 2018 will from Paulina he had been in practice for approximately 45 years and in that time had taken instruction for hundreds of wills. He was clearly aware of the test in Banks v Goodfellow and generally alive to issues of testamentary capacity. In particular his evidence was that having received a referral from a general practitioner (Dr Krishnamurthi), he thought it was likely that issues might subsequently arise regarding Paulina’s capacity.

Mr Sier described Paulina as someone who ‘knew exactly what she wanted’ and was ‘extremely clear’ in her instructions. In the course of taking instructions from her, Mr Sier did not detect the presence of any delusionary ideas. Mr Sier was conscious that Paulina’s proficiency in reading and writing in English was low and so prior to the execution of the will ensured that he read its contents to her.

Mr Sier gave evidence that in his first conference with Paulina he was at pains to tell her she needed to be very clear regarding what she was doing. Having taken instructions, Mr Sier then went through those instructions again and said he would draft a will and send it to her. Mr Sier then said that if Paulina was sure, having gone through the draft will, that that was what she wanted, she could come back and execute the will.

Mr Sier was cross-examined regarding the note which was attached to his file note and the discrepancy between the figures in that note and the figures in his file note. He could not recall precisely why there was such a discrepancy, but he was certain that he had taken down the instructions she gave in the conference accurately. He said that at the time he would have discussed why she had changed those instructions from what was in her note, but that he could not recall what the content of that discussion was and it was not recorded in his file note.

Mr Sier gave evidence that following the conference on 8 May 2018 he would have drafted a will and sent it with a covering letter to Paulina for her to review. AMS Lawyers’ complete file was not made available to Mr Sier before he gave evidence and was not in evidence, so copies of any cover letter and draft will are not in evidence. But I accept Mr Sier’s evidence that this is what he would have done – it is consistent with what happens next.

There is in evidence a copy of an email on the AMS file which records a call from Paulina regarding her will with the following:

Wants to add
· Robert Wenzler gets $50,000
· Robert Challin (she couldn’t spell surname for me, she said it was on the paper she handed over) to get $100,000
Send her a new copy once it’s done.

The email provides independent confirmation of Mr Sier’s evidence that an initial draft will had been sent to Paulina for her review.

I also accept that, in light of what is recorded in that email, it is likely that a revised will consistent with the additional instructions, was sent to Paulina for her review after 14 May and prior to 23 May when she executed the 2018 will.

Mr Wier was cross-examined regarding the circumstances in which Paulina had obtained the document from Dr Krishnamurthi dated 18 May 2018. There is no specific mention of obtaining a medical certificate in the notes of the first conference between Mr Sier and Paulina on 8 May 2018. But his evidence was, and I accept, that he was likely to have asked her to obtain something from her doctor in circumstances where he knew that the referral had come to him from that same doctor.

Mr Sier was cross-examined regarding whether this, in effect, undermined his testimony regarding his confidence in Paulina’s capacity to give instructions at the initial conference. His evidence, again which I accept, was that whilst he was confident, he thought it prudent nonetheless to obtain medical evidence in the circumstances. As it turns out he was right.

Mr Sier gave evidence that Paulina came into his office on 23 May 2018 to execute her will. His evidence was that he had a discussion prior to the execution of her will, in which he confirmed her instructions and read the will out to her. In evidence is a file note which Mr Sier took on 23 May 2018, it reads:

Paulina advises again that the reason for taking Robert and Richard out of their roles as ex. of will and attorney is because ‘they are not treating me right’. PW’s brother married to boys’ mother – later divorced and the boys have never made any reference to her brother since the break up. As if he doesn’t exist. Very upsetting. Boys’ mother came around couple of times and insisted she sell her house. Wanting to get my money and fearful of having them in control of ‘my’ affairs. Don’t trust them. Norma has been her friend and confidant for many many years and helped her with many aspects of her life. Very dear and trusted friend.
– Discussed capacity issues and relevance and possible future part IV claim. That is why she got doctor cert before she came to see me.
(emphasis in original)

Mr Sier’s evidence was that after these steps Paulina executed the will before himself and his secretary.

Overall, I was impressed with the evidence of Mr Sier. He struck me as doing the best he could to give an honest recollection of his conferences with Paulina and was frank when he did not have a recollection of matters. As he acknowledged, he is not a medical practitioner, but I do place some weight on his observations of Paulina’s demeanour and capacity. In particular, his evidence, coming as it does from a very experienced practitioner, that she was very clear what she wanted in her will, is a matter which assists me in the resolution of the particular issue before me, which is whether or not Paulina met the fourth element of the test in Banks v Goodfellow.

Robert sought to make a number of criticisms of Mr Sier’s evidence. None of them lead me to the view that I should reject his evidence on the critical issues of the sequence of obtaining instructions from Paulina regarding her will, her demeanour and presentation, and his impression of her capacity during that sequence of events.

Robert says:

(a) The fact that Mr Sier’s initial file note correctly spells Ms Chahine’s surname and Dr Wallis’ surname when the evidence establishes that Paulina could not casts doubt upon Mr Sier’s testimony that Ms Chahine had not been present at the time he took the file note;

(b) Mr Sier did not ask for a copy of Paulina’s 2012 will and had no idea when it was made;

(c) Mr Sier did not ask for a family tree;

(d) Mr Sier did not check with Paulina whether she had written the handwritten note and could not explain the discrepancy between that note and the oral instructions he received; and

(e) Mr Sier was not aware that Dr Krishnamurthi was not Paulina’s ‘usual’ GP, was not aware that she had been referred to Dr Berberovic who had given a report which was that Paulina lacked capacity and was not aware that she had subsequently been referred by another GP, Dr Batool, to a geriatrician and had not attended that appointment.

I accept that it is likely that prior to the preparation of his file note Mr Sier had checked the spelling of Ms Chahine’s surname with Ms Chahine. He did not need to check the spelling of Dr Wallis’ surname as he knew who Dr Wallis was. In any event, I do not accept that the ascertainment of the correct spelling of Ms Chahine’s surname casts any doubt upon the evidence of both Ms Chahine and Mr Sier that she was not present during the conference between Mr Sier and Paulina on 8 May 2018, during which he took initial instructions for the 2018 will.

Mr Sier conceded that he had not asked for a copy of Paulina’s previous will, nor asked when it was made. His evidence was that he had discussed the previous will with Paulina. I have no reason to doubt this. Indeed, the file note is consistent with Mr Sier’s evidence in this regard in that it records Paulina as saying she wanted ‘Robert, Richard and Daniel all out of will’.

Similarly, whilst Mr Sier accepted that he had not taken down a family tree, he gave evidence that he would have discussed whether there were other members of Paulina’s family who were alive at the time she was making her will. I accept that it is likely that such a conversation occurred. It is not recorded in the file note, but the file note is clearly a very short summary of a longer conference and I have no reason not to accept Mr Sier’s evidence that such a conversation occurred.

Robert’s submission regarding the handwritten note similarly goes nowhere. Mr Sier’s evidence was that he would have discussed the note with Paulina during the 8 May conference, but that he had no specific recollection of that discussion. I accept that evidence. It is clear that the note is written in Paulina’s hand. A comparison of the note on the file with the note which Paulina gave to Robert in 2015 confirm they are written by the same person. The fact that some nearly six years after the event Mr Sier could not recall precisely why, during the course of his conference with Paulina, her instructions varied from the contents of the note, does not cast doubt upon the veracity of his file note as to her instructions on the day and does not cast doubt upon his assessment of her that he formed on that day.

The fact is that the evidence demonstrates that Paulina changed her mind as to the nature and amount of her specific bequests twice before she executed the 2018 will. What is also clear is that the central feature of that will, which was that she wished the residue of her estate to be left to the Austin Hospital rather than her nephews, did not change throughout that process.

Mr Sier readily conceded that he was not aware of the attendances by Paulina on Dr Sathavisam, Dr Berberovic and Dr Batool and that he was not aware of Dr Berberovic’s report in which she had concluded that Paulina did not have testamentary capacity. His evidence, when it was put to him that his position would have been ‘entirely different’ had he been aware of those things, was that:

I would have been more careful in terms of making sure that she had a geriatrician who was able to give … another opinion.

I accept that Mr Sier may well have taken extra steps had he been aware of the matters regarding Paulina’s prior GP visits and Dr Berberovic’s report in particular. However, that acceptance does not undermine the weight that can be placed on Mr Sier’s testimony as to his observations of Paulina’s demeanour and his confidence in her capacity to give clear instructions regarding those who should benefit from her will.

For completeness, I note that Robert was critical of the fact that Anthea Stroumos, who was the other person who witnessed Paulina’s will, had not been called to give evidence. No submission was made regarding a Jones v Dunkel[8] type inference and in the circumstances, I do not regard this fact as casting any doubt upon the testimony of Mr Sier.
[8](1959) 101 CLR 298.

The medical and psychological evidence

The resolution of this case is made more difficult by the differing opinions as to Paulina’s mental capacity held by Dr Berberovic and Dr Hewitt on the one hand and Dr Krishnamurthi and Dr McDowall on the other.

In the ordinary course the proximity of Dr Krishnamurthi’s assessment of Paulina’s capacity so close to the execution of the 2018 will would clearly weigh heavily in the balance in favour of acceptance of that opinion over other evidence indicating Paulina’s mental capacity at times more remote from the execution of the 2018 will. However, in this case Dr Krishnamurthi did not give evidence at the trial. She was unavailable, having retired from practice some time ago and having moved to Sri Lanka where, I was informed, those representing Ms Chahine could not locate her.

In those circumstances, the evidence I have of Dr Krishnamurthi’s views is recorded in a letter dated 18 May 2018 and notes from the file of the Bellfield Medical Centre, which I have referred to above and which were tendered into evidence by Robert.

Robert says for a host of reasons that I should place little or no weight on the evidence of Dr Krishnamurthi’s view. Those matters may be summarised as follows:

(a) Dr Krishnamurthi’s evidence is available in the form of documentary hearsay only and she is not able to be cross-examined;

(b) Dr Krishnamurthi was not Paulina’s usual doctor and had limited contact with her prior to 18 May 2015;

(c) Dr Krishnamurthi was in fact Ms Chahine’s usual doctor;

(d) Dr Krishnamurthi was prepared to provide a certificate as to mental capacity in circumstances where Dr Sathasivam was not;

(e) The appending of further information to the progress notes for the consultations on 27 April and 29 June 2018 should be seen as an attempt to create retrospective records of facts to bolster an argument that Paulina’s decision to change her will was rational and the only source of such information could have been Ms Chahine;

(f) There is no written form showing the Mini-Mental State Examination (MMSE) administered on 18 May 2018 in the records from the Bellfield Medical Centre;

(g) The scores Dr Krishnamurthi records on the MMSE in May 2018 and November 2018 were inconsistent with those recorded by the Austin Hospital in August 2018;

(h) A MMSE is a basic screening test and its results do not conclusively establish testamentary capacity; and

(i) Dr Krishnamurthi suggested to Paulina that she go to AMS Lawyers instead of her usual solicitors.

I accept that some of the matters to which Robert refers do impact upon the weight to be given to Dr Krishnamurthi’s recorded opinion regarding Paulina’s mental capacity. In particular I accept that:

(a) The fact that she was not available to give evidence and was not cross-examined is a matter which I need to take into account in assessing the evidence;

(b) The limited interactions that Dr Krishnamurthi had with Paulina prior to the provision of the opinion are indicative of a need for some caution in relation to that opinion, but I do not accept that they should lead me to give it little or no weight. The 18 May visit was the third time Dr Krishnamurthi had seen Paulina. All of the neuropsychologists formed their opinions based on a similar or lesser number of interactions with Paulina; and

(c) The evidence of the neuropsychologists is that the MMSE is a basic screening test only. That said, it is of the nature of a screening test that, unless it gives rise to a cause for concern, there is no reason to take further steps. Having performed an MMSE on which Paulina scored 30 out of 30, there would be no reason for Dr Krishnamurthi to go beyond the basic screening test.

Certain other aspects of Robert’s submissions relating to Dr Krishnamurthi cannot be accepted:

(a) Not much can be made of the fact that Dr Krishnamurthi was Ms Chahine’s ‘usual’ doctor. Dr Sathasivam had only recently ‘inherited’ Paulina as a patient and her doctor of many years, Dr Wallis, had retired some time ago. There is no basis for suggesting that Dr Krishnamurthi acted in anything other than an appropriate way when it came to dealing with Paulina as her patient and indeed she became Paulina’s usual doctor from April 2018 until Paulina died;

(b) The contemporaneous notes from the Bellfield Medical Centre and the letter of 18 May 2018 establish that a MMSE test was administered and are cogent evidence of Paulina’s score on that day. The absence of a written form of the MMSE test administered in May 2018 does not provide a reason to set that cogent and contemporaneous evidence at nought;

(c) The posited motivation attributed to Dr Krishnamurthi for appending notes on 5 July 2018 is simply without foundation in the evidence. An allegation of that seriousness should not have been made without a proper foundation. The annotations of 5 July 2018 on their own provide no such foundation. I accept that it is likely that the annotations were made after a conversation with Ms Chahine (the 29 June 2018 annotation specifically records such a conversation) but the annotation to the 27 April 2018 record is consistent in tone and tenor as to Paulina’s reasons for changing her will as recorded in the contemporaneous note of the consultation on 18 May 2018. Those contemporaneous notes of 18 May 2018 are stronger evidence that Paulina wanted to change her will, her reasons for doing so and that she had the mental capacity to do so;

(d) An analysis of the hospital records showed only two completed MMSE tests. One on 21 September 2015 where Paulina scored 24 out of 30 and one on 16 August 2018 where Paulina scored 15 out of 30. On Dr Krishnamurthi’s test in May 2018 Paulina scored 30 out of 30 and in November 2018, 29 out of 30. For reasons I explain below, I am not persuaded that any real weight can be placed on the August 2018 test and I do not regard the inconsistency of the results of Dr Krishnamurthi’s tests compared to the August 2018 test as demonstrating that no weight should be placed on Dr Krishnamurthi’s test or her opinion; and

(e) In my view nothing turns on the fact that Dr Krishnamurthi recommended Paulina go to AMS Lawyers rather than her usual solicitors. It is clear that Paulina was dissatisfied with her usual solicitors and there is nothing untoward about Dr Krishnamurthi recommending another firm of solicitors in those circumstances.

Overall therefore, I accept that some caution needs to be exercised in considering the evidence regarding Dr Krishnamurthi’s administration of the MMSE on 18 May 2018 and her views regarding Paulina’s mental capacity but I specifically reject Robert’s proposition that it should be given little or no weight. It should be given some weight and it is of some significance because of its proximity to the actual date of the execution of the will.

As noted above, on 12 March 2018 Dr Berberovic completed a report on Paulina in which she concluded that she lacked sufficient cognitive capacity to alter her legal will ‘at this point in time’. Dr Berberovic’s report was tendered in evidence and she was called as a witness.

Dr Berberovic saw Paulina on two occasions, 2 and 9 March 2018. The report records that Paulina’s ‘close friend Norma’ was present at the beginning and end of each assessment session, but did not participate or stay during the interview or testing component of assessment.

The primary basis upon which Dr Berberovic determined that Paulina lacked the cognitive capacity to make a will was Paulina’s poor performance on a series of tests which Dr Berberovic administered. Those tests are described on page 6 of her report.

Essentially, Dr Berberovic’s methodology was to estimate where, given Paulina’s educational and occupational attainment, she would score on these tests ‘pre-morbidly’, that is, before any cognitive decline. Based on her experience, Dr Berberovic determined that Paulina was estimated to have been within the low end of the average range.

Dr Berberovic then administered the variety of tests. On some Paulina was described as ‘mildly weaker’ than expectation, but on:

(a) setting three digits in sequence from smallest to largest and verbal abstract reasoning her performance was described as being in the ‘borderline range’, such that her performance was rated between the third and sixth percentiles of her age-related peers; and

(b) learning a list of twelve words, spontaneous delayed recall and non-verbal abstract reasoning she was rated as impaired, in the case of the latter placing her in the second to fourth percentiles of her age-related peers.

In her evidence Dr Berberovic showed a number of drawing tasks on which Paulina was said to have performed poorly. Both in her evidence and the report, Dr Berberovic placed particular significance upon the failure of Paulina to accurately draw a clock face and her lack of insight into the fact that the clock face was not well drawn.

On the basis of her assessment, Dr Berberovic concluded:

[Paulina’s] current cognitive profile is characterised by significant impairments in memory, visuospatial/visuoconstructional skills and executive function. Her impairments exceed those typically seen in individuals with purely vascular history. Thus, a progressive process cannot be ruled out at this stage, but given a lack of evidence of a functional decline a neuropsychology review is highly recommended in some 12 months to further clarify diagnosis. Geriatric assessment is seen as imperative to assess the need for medication at this point in time. I am happy for this report to be provided to her geriatrician if required.
Finally, due to [Paulina]’s marked deficits in executive function, including planning, abstract visual and verbal reasoning, fluency and in particular insight, self monitoring and self correcting, [Paulina] is currently seen to lack sufficient cognitive capacity to alter her legal will at this point in time.

In evidence Dr Berberovic was asked about her finding that a progressive process could not be ruled out. She responded that she thought Paulina may have had dementia but could not be confident in that diagnosis. She was also asked what conclusion she would have drawn had she seen Paulina 12 months later without any further evidence of decline. Her response was that she would simply have sought to schedule further testing in a further 12 month period.

I will return to other aspects of Dr Berberovic’s report, but it is appropriate at this stage to record why I do not accept that the testing she performed on Paulina provides a basis for the conclusion that Paulina did not have a capacity to make a will. Essentially, it is because I accept as preferable in this regard the evidence of Dr McDowall.

Dr McDowall saw Paulina on 11, 14 and 18 January 2019 and produced a report dated 18 February 2019. Dr McDowall had the benefit of assessing Paulina’s capacity in light of the reports of Dr Berberovic and Dr Hewitt, the report of Dr Krishnamurthi, various medical records from the Austin Hospital, a telephone conversation with Dr Sathasivam and a telephone interview with Ms Chahine.

Dr McDowall also performed a range of tests on Paulina which are set out at paragraphs 7 and 8 of her report.

In her report Dr McDowall explains that neuropsychologists often utilise normative data in order to ascertain whether a person’s performance falls within the normal range for their age and background. She goes on to make the following critical finding which I accept:

The assessment of [Paulina] presents particular challenges. She is an 85 year old woman from the former Yugoslavia. English is her second language. She has 4 years of education.
From the cognitive tests available to neuropsychologists for use in an assessment, there are no data which can tell us the normal level of performance for a woman of Mrs Wenzler’s age, education level and cultural background. For [Paulina], therefore, there are no normative data which can validly be used to reliably interpret her test scores. All her test performances may appear ‘impaired’ if the normative data currently available are utilised.
My assessment of Ms Wenzler’s cognitive functioning, therefore, is based on detailed and thorough clinical observations of her performance on cognitive tasks. I have also administered tests which were utilised in [Paulina]’s previous assessments in order to determine whether there has been any decline in her test performances.

Importantly though, Dr McDowall found that Paulina’s performance on a range of tasks remained unchanged compared to her previous assessment:

… There was no evidence of an accelerated rate of forgetting, as would be expected in an early dementia of the Alzheimer’s type.
Language functioning was intact at a clinical level.
…
[Paulina]’s performance on tasks assessing executive functioning were unchanged compared to her previous assessments. At a behavioural level she demonstrated a sound ability to monitor her performances and spontaneously correct errors. She was not impulsive or distractable.
…
[Paulina]’s ability to appreciate visuospatial relationships was intact. She could correctly place the numbers on a clock. She had difficulty setting the hands to a designated time. This was unchanged from her previous assessments.

Further, Dr McDowall administered a test which Dr Berberovic had not administered, the Rowland University Dementia Scale (RUDAS). Dr McDowall gave evidence that the RUDAS is a test specifically designed to minimise ‘the effects of cultural learning and language diversity on the assessment of cognitive performance’. Paulina scored 25 out of 30 on this test which was above the recognised level for impairment on that test (22 out of 30).

For the reasons given by Dr McDowall I do not accept that it was a useful methodology to compare Paulina’s test results to normative data. Further though, even if it had been acceptable to use this methodology, it needs to be borne in mind that Dr Berberovic’s conclusions were drawn from her estimate of Paulina’s pre-morbid function. This was necessary because Dr Berberovic did not have a baseline of testing from Paulina from which to measure. This is to be contrasted with Dr McDowall who was able to assess whether there had been any decline in Paulina’s functioning by reference to the tests which Dr Berberovic had conducted approximately 10 months previously. It is noteworthy that Dr Berberovic herself flagged that given the lack of evidence of a functional decline, a further review in 12 months would help clarify any diagnosis. In effect, Dr McDowall’s assessment (albeit 10 months later) provides a further review and permits the conclusion that there is no evidence of ongoing decline in cognitive performance, providing no evidence of a ‘progressive’ decline.

I am persuaded that significant weight should be placed upon Paulina’s relatively better performance (within the normal range and above any impairment level) on the RUDAS test which is specifically designed to minimise the effects of cultural learning and language diversity.

It needs to be borne in mind the ambit of the dispute before me. That is whether Paulina had the ‘ability to evaluate and discriminate’ between the respective strength of the claims of those persons who might reasonably be thought to have a claim upon her bounty. In that context, I do not regard Dr Berberovic’s report as providing evidence of a lack of capacity. At page 4 of her report Dr Berberovic records:

In regards to assessment of her capacity to make informed decisions about her finances in particular about her ability to make a legal will, [Paulina] said, ‘I have four people. The house I want to leave to the Austin Hospital… I will use my money as much as I need, but when I am gone, all goes to the Austin. Four people are in my will; they get their share, and the rest goes to the Austin hospital’.
[Paulina] said she has made a legal will before and that ‘it is different’. She said she did not want others to know what she was leaving to whom, so I did not indicate that in this report.
… [Paulina] said that she has made a legal will before in which she indicated she was leaving everything to her nephew. She said this would be her second will, or the first time changing her will…“In the first will I say I leave everything to Robert. Second is this one. I want to cut off Robert because couple of times he makes something, which makes me think. First he asked me to put my financial in his name. My bankbooks. He did always have my bankbook. Then I invested $340,000 and this investment expires this year. When expirers (sic), he saw my bankbook, and it is big. Then he asked why I don’t put my financial in his name. Then second time, I withdraw $5,000 when I need things, and then he said, “Did you spend all this money?” So I am not allowed to spend my money? So, that is why I want to change the will. I see they are after my money. This is my money. Not inherited or anything. Completely my money. I want to leave to who I want.” She was adamant she is able to change her legal will.

Aspects of the recorded statement of Paulina are inaccurate. In particular, the 2012 will did not leave everything to Robert. I do not think in the context of a broad-brush explanation of her reason for changing her 2012 will it is surprising that Paulina was primarily focused on Robert as the nephew with whom she had the most contact.

It is also telling that in relation to Robert, Paulina’s narrative is a concern that he wishes to take over her finances. This is a consistent part of her narrative with Dr Krishnamurthi, Mr Sier and Dr McDowall. Robert disavowed such an intention but having regard to the evidence and, as discussed further below, I am persuaded that Paulina had formed the strong view that Robert was seeking to obtain control of her finances and this was a strong motivator for her to change her will.

Finally, I should note that Dr Berberovic seemed particularly influenced in her assessment of Paulina’s capacity by what she regarded as her poor performance on the drawing tasks (and the clock face in particular). Whilst I accept those tasks are considered relevant to an overall assessment of cognitive capacity, I do not regard them as providing particularly cogent evidence in relation to the central question which I have to decide.

Overall therefore, I do not accept Dr Berberovic’s conclusion in her report and her evidence that as at March 2018 Paulina lacked testamentary capacity. I am not satisfied that Dr Berberovic’s report provides a basis on which it ought be concluded that in May 2018 Paulina did not possess the requisite capacity to distinguish between the respective claims of those who might reasonably have a claim upon her bounty.

Robert also relies upon Dr Hewitt’s report and evidence for the proposition that Paulina lacked the relevant testamentary capacity in May 2018.

Dr Hewitt’s report followed an assessment of Paulina on 30 August 2018 and 5 September 2018. The assessment arose in a context where other members of the Austin Health–Royal Talbot Rehabilitation Centre multidisciplinary team had expressed concerns regarding Paulina’s capacity to make financial decisions. It is important then to understand why those concerns arose. It is plain that during her stay at the Austin in particular, Paulina was suffering various symptoms of delirium and in that state, had made a number of statements to members of the multidisciplinary team which understandably gave rise to concerns such as:

(a) talking about Robert trying to make her go crazy by shining lights in her house; and

(b) talking about Robert and Ms Chahine arguing over who should get her money (when the evidence of both of them is that they had met only once many years before).

These matters together with the recent change in the enduring power of attorney, Ms Chahine’s apparent misgivings about the role of attorney, the large sums which Paulina said she had gifted to Ms Chahine (although I note that those sums were themselves inconsistent and likely to be the product of delirium) and the report of Dr Berberovic all raise an understandable concern on the part of those in the Austin Health-Royal Talbot Rehabilitation Team as to Paulina’s capacity to make financial decisions.

Dr Hewitt assessed Paulina as presenting with ‘persistent neurocognitive impairments across a range of domains include learning and memory, higher-level attentional and executive function, and visuo-constructional abilities’.

Dr Hewitt further found that:

Based on the degree of persistent neurocognitive compromise, [Paulina] was unable to demonstrate adequate understanding of the purpose and implications of appointing an EPOA (financial). She was inconsistent with recalling her financial situation and recent transactions, including purchasing significant assets such as a car for her neighbour. She impressed as financial (sic) vulnerable and her decisions appeared influenced by suspicious and unusual beliefs (e.g., changing her EPOA as her nephew was trying to make her “go crazy” by “shinning (sic) lights” into house).

Whilst I accept that based upon her examination, Dr Hewitt was right to have concerns regarding Paulina’s capacity for making financial decisions, I do not accept that her report provides a basis on which it ought to be concluded that Paulina lacked the relevant capacity to make a will in May 2018 for the following reasons:

(a) First, and most obviously, Dr Hewitt’s assessment post-dates the making of the will by approximately three months and critically is made in circumstances where in the interim Paulina had been hospitalised with symptoms which included delirium;

(b) Dr Hewitt’s evidence was that ‘many of’ the delirium symptoms were ‘resolving’ on her assessment. I am satisfied in light of the subsequent assessment of Dr McDowall that part of Paulina’s assessment by Dr Hewitt was affected by delirium symptoms which had not resolved;

(c) Dr Hewitt’s report notes Paulina describing large value financial transactions with figures which differed from previous accounts to other team members, concerns regarding her neighbour and nephew ‘arguing’ over her money and presenting with paranoid themes. It is noteworthy that these matters do not pre-date the execution of the May 2018 will and were not evident when Paulina was assessed by Dr McDowall. In the circumstances, it seems to me more likely that they are evidence of aspects of Paulina’s thinking which were still affected by her ‘resolving delirium’; and

(d) Robert’s counsel qualified Dr Hewitt as an expert who could have expressed an opinion on Ms Wenzler’s testamentary capacity. When asked to express that opinion Dr Hewitt specifically disavowed any comment on Paulina’s testamentary capacity in the following terms:

Capacity is decision specific. So unless I am actually addressing that decision in my assessment, I can’t comment on her capacity for that.

In short, I am satisfied that Dr Hewitt’s report demonstrates that during and immediately after her hospitalisation in July and August of 2018 Paulina suffered various symptoms of delirium and that these may well have impacted on the assessment of her cognitive capacity at that stage. That assessment was expressly not an assessment of testamentary capacity and ultimately does not assist in the resolution of whether Paulina had testamentary capacity in May of 2018.

In those circumstances it is appropriate to return to the evidence of Dr McDowall. In relation to testamentary issues, Dr McDowall records the following:

As documented above, [Paulina] demonstrated a clear understanding of her assets. She could estimate the value of her estate, including her residential property and her current savings.
[Paulina] reported that, as she has no children and her brothers and sisters have passed away, there is nobody who has a claim on her estate.
[Paulina] was aware that she has made two Wills. She made her first Will after her sister passed away. She could not recall the date. She accurately reported the beneficiaries of her previous Will. Her account of how her estate was initially to be divided lacked detail.
[Paulina]’s reasons for changing her Will were consistent with those documented by Mr Sier. She was upset at the way her brother was treated by his family (her nephews and their mother) whilst he was alive. She reported that her nephews ‘didn’t care about me’, and ‘didn’t want to look after me’. She was angry that her nephew, Robert, suggested that she ‘put (her) investments’ in his name. She was angry that her other nephews, Richard and Daniel, have not provided her with any real help over the years.
[Paulina] was aware that she changed her Will when she was ‘84’. Again, she could not recall the date. Across assessment sessions, she consistently outlined the beneficiaries to her estate, and how her estate was to be divided, and her reasons for this.
[Paulina] described in detail property and money that had been gifted to her nephews in the past. She detailed a sum of money that she recently gifted to Norma, for the purchase of a car.
[Paulina] was aware that her Will comes into effect upon her death. She was aware that she can change her Will whilst she retains capacity.

Later in her report Dr McDowall states:

[Paulina] consistently demonstrated a detailed understanding of the nature and extent of her estate. She consistently outlined the beneficiaries of her estate, and her reasons for making recent changes to her Will. These changes were consistent with the information she had previously provided to AMS Lawyers Ivanhoe.
OPINION
I do not believe that [Paulina] is suffering from dementia. There is no evidence in her history of progressive functional decline. There is no evidence of a decline in her performances on cognitive testing since her previous assessments. Clinical observations of her cognitive abilities did not reveal a profile consistent with a diagnosis of dementia. In particular, neither the history available to me, nor [Paulina]’s cognitive profile, meet the diagnostic criteria for a dementia of the Alzheimer’s type.
Given the reports of chronic small vessel ischaemic changes on CT brain and MRI brain scans, it is possible that she has a degree of vascular-related cognitive impairment.
It is my opinion that [Paulina] has the capacity to make financial decisions.
…
It is my opinion that [Paulina] has testamentary capacity.

Notwithstanding that this assessment comes a considerable period after the 2018 will was executed, I am satisfied that it represents an accurate summary of Paulina’s capacity at the time of making that will. It is consistent with the contemporaneous findings of Dr Krishnamurthi and consistent with the evidence of Mr Sier. It is also consistent, insofar as it records Paulina’s reasons for changing her will, with the evidence of Dr Berberovic.

As I have noted above, in one critical respect, the timing of Dr McDowall’s report provides further comfort as to Paulina’s capacity at the time of making the will. Dr McDowall did not have to estimate a baseline performance for Paulina on the various cognitive tests. That baseline had been established by the tests of Dr Berberovic and the testing in 2019 by Dr McDowall showed no decline from that baseline and was a key element in her finding that Paulina was not suffering dementia.

Robert says I should reject Dr McDowall’s assessment because:

(a) she relies on a history ‘obtained from Ms Wenzler’s long-time friend and neighbour, who did not report any change in Ms Wenzler’s personality or behaviour over the last 30 years’;

(b) Dr McDowall was not aware that Paulina’s brother had died in 2001;

(c) Dr McDowall was not permitted to speak with Robert or his brothers in relation to their impression of Paulina; and

(d) Dr McDowall’s report was least proximate to the date of the will.

Whilst Robert sought to make much of Dr McDowall’s reliance on Ms Chahine’s statement that she had not witnessed any change in Paulina’s personality or behaviour over the last 30 years, I am not persuaded that it has the significance which Robert seeks to attach to it and am certainly not persuaded that it undermines the totality of the report.

First, taking the report as a whole, it is clear that Dr McDowall based her assessment on a review of a significant number of written materials, including medical records, reports from Dr Krishnamurthi, Dr Berberovic and Dr Hewitt and a telephone conversation with Dr Sathasivam. However, all of these matters and the telephone interview with Ms Chahine were secondary to her assessment of Paulina based on the interviews with her over the course of 11, 14 and 18 January 2019.

Secondly, Robert draws specific attention in this regard to a note in the Austin Health–Royal Talbot file which describes Ms Chahine as being concerned about ‘a recent decline in Paulina’s health and mobility last two months approximately’. Dr McDowall accepted, in cross-examination, that she was not aware of that. It is not in dispute that Paulina’s physical health had been in decline. There is no inconsistency between the reference to the physical decline recorded in the Austin Health–Royal Talbot notes and the informant history as recorded by Dr McDowall at page 7 of her report. In particular, the reference to never having seen a change in the way Ms Wenzler ‘acts’ is clearly a reference to her behaviour not her physical health.

I do not accept that Dr McDowall’s lack of knowledge regarding the date of death of Paulina’s brother is a factor which undermines her report. I discuss this issue more generally below.

Dr McDowall explained that Paulina had specifically forbidden her from speaking with Robert or the other nephew. In any event, I do not accept that in light of all the other matters to which Dr McDowall made reference that this undermines the critical findings of her report.

I have dealt above with the fact that the report was prepared considerably after the 2018 will.

Overall, I am satisfied that considerable weight should be given to the views expressed by Dr McDowall. I am satisfied that her assessment of Paulina’s testamentary capacity paints a more accurate picture than that of Dr Berberovic and, as I have noted, Dr Hewitt specifically disavowed the suggestion that her report constituted such an assessment.

The reasons for the change in the will

In his submissions Robert contended that the various reasons which Paulina had advanced for the changing of her will were themselves indicative of an inability to satisfy the fourth limb of the Banks v Goodfellow test. He submitted, in effect, that because those reasons were not substantiated that was an indicator of a ‘disordered mind’.

In this regard, Robert says that contrary to the recorded reasons for the change of will in the 8 May conference:

(a) He did not want Paulina’s money;

(b) He did quite a lot for her, as did Richard and Daniel; and

(c) He did not want to put her in a nursing home and he did nothing to intimidate or frighten her.

All of that may be so (at least so far as Robert himself is concerned, the evidence does not establish that Richard and Daniel did very much for Paulina at all) but it is clear that from February 2018 until the end of her life those stated reasons were a consistent theme in Paulina’s recitation of the reasons that she did not want Robert or his brothers as executors of her will or to be beneficiaries of the residuary estate. Paulina’s views in this regard might have been mistaken, they might have been unfair and indeed they might have been, to some extent, irrational, but they are not, in my view, evidence of an impaired capacity. In fact, when one steps back from the 2018 will and looks at those who are beneficiaries there is nothing irrational about her bequests – Paulina’s will prioritises those who provided her with the most care.

Robert then draws attention to Paulina’s concerns regarding her nephews never having made reference to her brother after his divorce from their mother. Robert points out that this had occurred many years beforehand and before the 2012 will and so Paulina’s reliance upon it in 2018 is an indicator of a lack of testamentary capacity. I do not think this is so. Post facto rationalisation is not necessarily an indicator of dementia or lack of testamentary capacity. It is a matter of common experience that sometimes people will seek to justify their actions by reference to events which occurred a long time ago and which were apparently not as upsetting at the time or in the interim as they are asserted to be at a later date.

Robert also relies on the statement by Paulina that Robert was shining lights in her house, making silent phone calls and knifing her neighbour’s tyres in order to make her go crazy. That statement was made in hospital. Robert asserts that it was made at a time when Paulina’s medical episode was resolved, but it is plain that the first time the statement was made was at a time when Paulina was in the hospital and suffering delirium. The repetition of the statement to Dr Hewitt was on Dr Hewitt’s own evidence at a time when Paulina’s symptoms of delirium were ‘largely resolving’. In the circumstances, I do not place any weight on that statement as a genuine indicator of Paulina’s reasons for changing her will. It is not an explanation she provided to Dr Berberovic, Dr Krishnamurthi, Mr Sier or to Dr McDowall.

Finally, Robert points to the accusation he says Paulina made that he had stolen money from her. I have found that it is likely that that accusation was made. I accept Robert’s evidence that it was false. The fact that it was made and that it was false is not an indicator that Paulina lacked testamentary capacity at the time of making the May 2018 will. The accusation was made a short time before Paulina was admitted to hospital suffering delirium. Even if that accusation was not affected in any way by Paulina’s developing medical condition, it is in truth, no more than an indicator of an unfair accusation in June 2018 approximately five weeks after she had made the will, and does not, in my view, provide any evidence of a lack of testamentary capacity as at the date of making the will.

Finally, I should observe that Robert emphasised that the circumstances of the 2018 will were such that Paulina was effectively disinheriting her nearest relatives but the truth is she did not disinherit Robert and her 2018 will shows an underlying cogency in the nature of her bequests.

Paulina’s 2018 will:

(a) provided a substantial bequest to Ms Chahine, her close friend and neighbour of more than 30 years. A person who had cared for her and supported her as her health ailed and who, in day-to-day terms, cared for her and provided her with more assistance than any of her nephews;

(b) provided a bequest to Robert Chahine, Ms Chahine’s son, who had also provided support and assistance to Paulina;

(c) provided a bequest to Dr Ian Wallis, who was in the 2018 will and had been Paulina’s longstanding doctor;

(d) notwithstanding her concerns regarding Robert, still provided him with a bequest of $50,000; and

(e) left the balance of her estate to the Austin Hospital, which had provided her with substantial medical care as she ailed.

Far from indicating any lack of ability to appreciate the various claims upon her, Paulina’s 2018 will shows an entirely explicable preference to leave her estate to those who had provided her with the most care in her later years.

Conclusion

Overall, taking into account all of the evidence but particularly that of Mr Sier, Dr McDowall and the contemporaneous documentary evidence from Dr Krishnamurthi, I am satisfied, on the balance of probabilities, that at the time she made her 2018 will Paulina Wenzler satisfied all four limbs of the Banks v Goodfellow test, had the requisite testamentary capacity and that probate of the 2018 will should be granted to the plaintiff, Ms Chahine.

---

[2024] VSC 317

17 June 2024