Clemens v Byrnes

[2007] NSWSC 421

CITATION:	CLEMENS v BYRNES [2007] NSWSC 421
HEARING DATE(S):	31 August, 1 September, 8 September 2006
JUDGMENT DATE :	7 May 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hall J at 1
DECISION:	I have determined that there be provision for the plaintiffs out of the net residue of the Estate of the testator upon the following bases - (a) Mr Clemens, a 40% share of the net value of the Estate; (b) Mrs Chan, a 25% share of the net value of the Estate. That determination will result in Ms Byrnes having a 35% share of the net value of the Estate. I propose that the parties produce short minutes of order to give effect to this judgment. I reserve the question of costs and will, if necessary, hear submissions as to the appropriate order in that respect.
CATCHWORDS:	Succession - Wills - testamentary capacity - testator suffering from schizophrenia and insane delusions - strained relationship between testator and two surviving children - whether the testator suffered from schizophrenia and insane delusions at the time of making his Will - whether a claim pursuant to the Family Provision Act is available to the surviving children
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW)
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Battan Singh v Amirchand [1948] AC 161 Blore v Lang (1960) 104 CLR 124 Bull v Fulton (1942) 66 CLR 295 Coates v National Trustees Executors & Aency Co Limited (1956) 95 CLR 494 Dolman v Palmer (2005) NSWCA 361 Eather v Maher [2006] NSWSC 746 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parkes (1989) 17 NSWLR 1 Hughes v National Trustees Executors & Agency Co (Australasia) Limited (1979) 43 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Jones v Dunkel (1959) 101 CLR 298 Kleinig v Neal (Nw 2) [1981] 2 NSWLR 532 McDougall v Rogers [2006] NSWSC 484 Re Allen, deceased; Allen v Manchester (1922) NZLR 218 Re Estate of Griffith (1995) 217 ALR 284 Re Estate of Paul Francis Hodges Deceased; Re Will of Bishop (deceased); Flynn v Roccisano [2004] VSC 346 Re Fulop (1987) 1 NSWLR 679 Shorter v Hodges (1988) 14 NSWLR 699 Singer v Berghouse (1994) 181 CLR 201 Stern v Engel (2001) NSWSC 1025 Vigolo v Bostin & ORs (2005) 221 CLR 191 Walker v Walker (Young J, unreported 17 May 1996)
PARTIES:	CLEMENS, Thomas Stephen & ANOR v. BYRNES, Mary
FILE NUMBER(S):	SC No 6306 of 2004
COUNSEL:	P: L Ellison SC D: M Gilbert
SOLICITORS:	P: Turnbull Hill Lawyers D: Byrnes Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL J

MONDAY 7 MAY 2007

No. 6306 of 2004

THOMAS STEPHEN CLEMENS & NIJOLE MARIA CHAN v. MARY KATHLEEN BYRNES

JUDGMENT

1 These proceedings concern the last Will and Testament of the late Steponas Klemenis made 28 October 1997. They were instituted by the deceased’s adult children, Thomas Stephen Clemens and Nijole Maria Chan. Mr Steponas Klemenis died on 14 September 2003, aged 85 years.

The Plaintiffs’ Claim

2 The plaintiffs assert that at the time of making his Will, the deceased lacked testamentary capacity by reason of the fact that he was suffering from schizophrenia and insane delusions. Specifically, they assert that the deceased was not of sound mind, memory or understanding at the time of making his Will.

3 The plaintiffs advance an alternative claim pursuant to s.7 of the Family Provision Act 1982 (NSW) (“the Act”) for provision from the deceased’s estate for their maintenance, education or advancement in life.

4 The history of the relationship between Mr Klemenis and his two children appears from the two primary affidavits of Thomas Stephen Clemens both sworn on 8 December 2005, the affidavit of Raelene Clemens sworn 4 August 2006 and the primary affidavit of Nijole Maria Chan sworn 21 June 2006.

The Klemenis Family

5 The deceased and his late wife, Anastasia Klemenis, had three children, Viktoras Klemenis (deceased Germany, 1945), Thomas Stephen Clemens and Nijole Maria Chan.

6 Anastasia Klemenis predeceased her husband on 4 April 1984. Viktoras Klemenis predeceased his father in Germany in 1945 at the age of approximately nine months. Unsuccessful inquiries have been made of authorities in Germany as to any records or birth or death certificates in relation to the late Viktoras Klemenis.

7 The plaintiffs are the only surviving relatives of the late Mr Klemenis.

8 On 9 February 1999, the Guardianship Tribunal determined, pursuant to the Guardianship Act 1987 (NSW), that Mr Klemenis was not capable of managing his affairs and made an order that the management of his estate be committed to the Protective Commissioner.

9 The plaintiffs argue that the facts and circumstances forming the grounds on which the Guardianship Tribunal made the determination and order were in existence at the date of the purported Will.

10 The alternative claim pursuant to the Act is made on the basis that Mr Klemenis made no provision out of his estate for the plaintiffs and that the plaintiffs are eligible persons as that term is defined in s.6(1) of the Act. Accordingly, the plaintiffs each claim provision out of the estate for their respective maintenance, education or advancement in life.

The relationship between the deceased and the plaintiffs

11 The narrative history which appears below is based upon an acceptance of the evidence of the plaintiffs and the defendant as to their respective relationships with the deceased. The plaintiffs and the defendant were not in a position to contradict evidence each of them gave as to relevant events that occurred in the course of their individual relationships. The only exception is the defendant’s evidence that she saw no evidence of any regular contact made by Mr Clemens with the deceased when she was with Mr Klemenis or by any account he gave her. I, however, accept Mr Clemens’ evidence. He was not prone to overstate matters and appeared to be an entirely honest and reliable witness.

12 I was impressed with the manner in which both plaintiffs and the defendant gave their evidence and, accordingly, I accept their evidence as to their respective relationships as being essentially correct.

13 The relationship between Mr Klemenis and his two children was a strained one. On several occasions for periods spanning either months or years Mr Klemenis did not see or speak to one or either of his children. The history of this strained relationship appears from the affidavits of Mr Clemens and Ms Chan and is, according to them, largely characterised by each of them making overtures to their father in the hope of patching up their estrangement.

14 In his affidavit of 8 December 2005 Mr Clemens recalls that his father was always “a volatile and violent man”. He relates an incident that occurred when he was 15 years old when his father chased him through the house with a hammer holding the hammer as if he was going to hit him. On that occasion, Mr Clemens reported the incident to police.

15 Mr Clemens related incidents of verbal abuse from his father such as the statement, “You’re useless”, and his father throwing things in a temper. It would appear from his affidavit evidence that the years of abuse finally culminated in the deceased testator ordering him to leave the family home when he was 22 years old.

16 Mr Clemens had minimal contact with his father in the years following his mother’s death in April 1984. From the late 1980s through to the early 1990s, he had regular and frequent contact with his father, estimating that he would see him once every three months. The relationship was argumentative however, with the argument often revolving around the issue of Nijole’s marriage to Alan Chan. Mr Clemens recalls that his father would become very angry when they discussed Nijole and on some occasions he ordered him to leave. Mr Clemens recalls one very specific occasion in 1997 when his father repeatedly punched a wall with his open fist for at least a minute following an argument between them in relation to Nijole.

17 Mr Clemens states that there was a period of approximately two years in about 1995-1996 when he had no contact with his father as a result of an argument that they had in relation to Nijole. When they resumed contact, Mr Clemens saw his father approximately once per month.

18 Mr Klemenis was involuntarily admitted to James Fletcher Hospital in 1998, where, according to Mr Clemens, he remained for six weeks. During this period, Mr Clemens visited his father twice per week but recalls that for the first three weeks his father appeared comatose and was unresponsive, despite Mr Clemens’ attempts to speak with him. Mr Clemens recalls that when his father emerged from what appeared a comatose state he spoke mostly about things from the past.

19 While still in James Fletcher Hospital, Mr Klemenis asked his son to buy some cigarettes for him. When Mr Clemens refused, Mr Klemenis told him that he would not be included in the Will.

20 When Mr Klemenis was discharged from James Fletcher Hospital he returned to his home and lived there for approximately six weeks. Mr Clemens attempted to help his father clean the house. The house had been in a very poor state of cleanliness since the time of Mrs Klemenis’ death in 1984. The floors were covered in rubbish and there were empty plastic bags, empty plastic drink bottles and newspapers all over the floor. There were dirty dishes piled in the sink and saucepans with burnt food sitting on the benches. Most of the food in the fridge was covered in mould and mildew. In an attempt to help clean the mess, Mr Clemens suggested that empty bottles and other containers be thrown out but his father resisted this suggestion saying, “I need to keep those”.

21 Mr Clemens stated that his father did not wash his clothes but would instead sponge them down. He neither bathed nor showered. There were cobwebs, rats and cockroaches throughout the house.

22 On the day of the Guardianship Tribunal hearing, Mr Clemens had arranged to take his father to the hearing but when he arrived he found his father unresponsive, immobile and staring into space. Mr Clemens and his wife took Mr Klemenis to James Fletcher Hospital. He was then transferred to the John Hunter Hospital where he remained until a place became available for him at Fig Tree Nursing Home. While Mr Klemenis was at Fig Tree Mr Clemens visited him once or twice a week.

23 According to Mr Clemens, while at the John Hunter Hospital and prior to his transfer to Fig Tree, Mr Klemenis did not talk but continued to stare into space. He was unresponsive and did not eat anything. He remained in this “comatose” state for four weeks. When he emerged from this state, Mr Clemens asked if Mr Klemenis might see Nijole. His father agreed to do so. To Mr Clemens’ knowledge, his father had not seen Nijole in approximately 30 years. When Mr Klemenis did see Nijole, he commented on a ring she was wearing at the time. Nijole gave the ring to her father and then later discovered that her father had given the ring to the defendant, Mary Byrnes.

24 Approximately six months prior to Mr Klemenis’ death, Mr Clemens raised with his father the issue of who would inherit his father’s estate. He responded that he had left his estate to Mr Clemens and his wife, Raelene Clemens.

25 According to Mr Clemens’ two-page affidavit in reply sworn 19 June 2006, his father was not happy at Figtree Nursing Home. He wanted to return to his home and he did not like the food served at Fig Tree. In that same affidavit, Mr Clemens states that, when living in his own home, his father would not invite visitors into his home as he was embarrassed by the state of uncleanliness of the house. Mr Clemens recalls that his father would arrange to meet him at the top of the hill rather than at his home.

26 According to Mr Clemens’ affidavit of 24 paragraphs sworn 19 June 2006, Mr Clemens helped his father build the family home at Cardiff. Mr Clemens left school at the age of 15 and began working and paying board to his parents. Mr Clemens recalls that there was a vegetable patch in the back garden and that he assisted in maintaining the vegetable garden. In her affidavit sworn on 18 August 2006, Ms Chan stated that in the very early years she also assisted her parents around the house, and she refers to working in the vegetable patch and caring for the chickens.

27 Mr Clemens stated that he invited both his parents to his wedding but his father did not attend. When Mr Clemens christened his daughters in 1976 he invited both his parents but his father did not attend.

28 During the 1990s, Mr Clemens and his wife would take his father shopping once every fortnight at the local shops at Cardiff. Mr Clemens stated that this arrangement continued throughout the 1990s with a brief two-year interruption in about 1995-1996 when he had no contact with his father. During the time that his father was in Fig Tree Nursing Home, Mr Clemens would bring his father his favourite meals, for example salamis, rye and other Lithuanian foods. Mr Clemens cooked these meals for his father and would sometimes take him prawns.

29 In her affidavit of 21 June 2006, Ms Chan states that her relationship with her father became troubled when she met her late husband, Alan Chan. When the late Mr Chan asked Mr Klemenis for his daughter’s hand in marriage, he threatened to kill his daughter and then proceeded to beat Mr Chan causing him severe bruising. Mr Klemenis objected to his daughter marrying Mr Chan on the grounds that he was Asian. He was of the opinion that his daughter should marry a Lithuanian man or an Australian, but not an Asian man.

30 From that time Ms Chan avoided visiting her parents’ home in Cardiff when her father was present. Ms Chan was married to her late husband on 28 November 1964. It is unclear whether Mr Klemenis was invited to the wedding, but in her affidavit Ms Chan expressed her then concern that her father would appear at the wedding and cause problems, and states that she hired security guards to prevent this from happening.

31 Ms Chan refers to an incident that occurred at her parents’ home in Cardiff in 1968 when she was staying there with her four year-old daughter and her mother in Mr Klemenis’ absence. He arrived home unexpectedly however at 2.30 am and, on discovering his daughter and young granddaughter, ordered them to leave the home immediately.

32 When Mr Klemenis was diagnosed with osteomyelitis in 1978, Ms Chan visited him in hospital but he rejected her overtures and ordered her to leave. In December 1983 Ms Chan visited her parents’ home in Cardiff with her husband and their two young daughters. As Ms Chan was leaving with her family Mr Klemenis came out of the garden shed with a knife in his hand. He approached the car, grabbed the passenger door handle and tried to pull the door open while Mr Chan was driving the car. In that same month, Ms Chan was present when Mr Klemenis told his late wife to leave the marital home. On that occasion, Ms Chan and Mr Clemens took their mother away and she lived for the next three months in Sydney with Ms Chan. Soon thereafter the late Mrs Klemenis was diagnosed with cancer and, as noted earlier, she subsequently died on 4 May 1984.

33 Prior to Mrs Klemenis’ death, Ms Chan visited her in Calvary Hospital. On several occasions, Ms Chan visited when her father was also visiting with a priest and on one occasion, Ms Chan invited her father to dinner at her home with the priest.

34 Ms Chan had no contact with her father between the time of her mother’s death in May 1984 and her husband’s death in 1999. Ms Chan did, however, send her father birthday cards each year, although she never received a response. Ms Chan has said that from the time of her husband’s death in 1999 to the time of her father’s death in 2003 she and her father became “very close”.

35 In the affidavit of Raelene Clemens sworn 4 August 2006, Mrs Clemens referred to her strained relationship with her father-in-law, the deceased. For approximately two years following her marriage to Mr Clemens, Mr Klemenis did not speak to Mrs Clemens and, although invited, he did not attend their wedding. When Mrs Clemens knitted a beanie for Mr Klemenis he warmed a little towards her but she states that she was a little fearful of him. In this respect, Mrs Clemens referred to an incident where Mr Klemenis repeatedly hit his head and hands against a brick wall at the back of the house. Mrs Clemens recalled that this incident followed an argument between Mr Klemenis and Mr Clemens concerning Nijole.

36 Mrs Clemens stated that the family often celebrated Christmas at her house and on such occasions Mrs Klemenis, Nijole and her family would celebrate there but Mr Klemenis would stay home despite an invitation to join the family.

37 Mrs Clemens stated that she and Mr Clemens had limited contact with Mr Klemenis after the death of Mrs Klemenis in April 1984. They resumed contact in the late 1980s and early 1990s. During this period, Mrs Clemens would visit Mr Klemenis with Mr Clemens. During the 1990s, Mrs Clemens took Mr Klemenis shopping once every fortnight at Cardiff in order that he could do his banking and grocery shopping.

38 Mrs Clemens stated that she and Mr Clemens would, on occasion, in the late 1990s help Mr Klemenis to clean his house. According to Mrs Clemens, Mr Klemenis’ home had been dirty since his wife died in April 1984. She recalled that the house was in a state similar to that described by Mr Clemens as referred to above. Reference is also made in her affidavit to taking Mr Klemenis his favourite foods while he was in Figtree Nursing Home.

The relationship between the defendant, Mary Byrnes, and Mr Klemenis

39 The history of the relationship between the defendant, Mary Byrnes, and Mr Klemenis appears from the four affidavits sworn by her on 19 December 2005, 16 February 2006, 3 August 2006 and 24 August 2006.

40 In the first of these affidavits, the defendant stated that she first became acquainted with Mr Klemenis at the age of 10 years at which time she attended St Kevin’s Church, Cardiff, with her parents and with Mr and Mrs Klemenis. She stated that in the early 1980s when Mrs Klemenis became ill, her mother, Mrs Kathleen Denyer, nursed Mrs Klemenis during her illness until Mrs Klemenis moved to live with her daughter (Nijole Chan) in Sydney. Ms Byrnes states that as far as she is aware, Ms Chan nursed her mother until her death.

41 Ms Byrnes stated that after Mrs Klemenis’ death, Mr Klemenis continued to maintain a close relationship with Ms Byrnes’ parents, but particularly with her mother, Mrs Denyer. She explained in her affidavit that although her parents lived together they had “a poor relationship,” in effect separated but living under the same roof. The defendant observed that her parents’ domestic arrangements had to be understood in the context of their devout Catholic faith. The defendant also stated that Mr Klemenis was Catholic and strict in his interpretation of the faith, adhering rigidly to his beliefs.

42 Ms Byrnes recalled that her mother attended Mr Klemenis’ home most evenings and that she and Mr Klemenis would take the evening meal together. When Ms Byrnes married in 1985, Mr Klemenis attended the wedding with Ms Byrnes’ mother. After her marriage, Ms Byrnes had Mr Klemenis and her mother to dinner on a Saturday night. Her mother and Mr Klemenis also visited her for family celebrations such as birthdays, Easter and Christmas. After the birth of her daughter, Gabrielle Byrnes, Mr Klemenis attended events such as Gabrielle’s christening and birthday parties. Annexed to Ms Byrnes’ affidavit (Annexures “A” to “F”) are photographs of family gatherings attended by Mr Klemenis.

43 Ms Byrnes described the relationship between her mother and Mr Klemenis as an affectionate, although not sexual, relationship. After the death of her mother, Ms Byrnes maintained a close friendship with Mr Klemenis. Mr Klemenis, through his close relationship with Ms Byrnes’ mother, had become “one of the family”. In addition to attending family celebrations, Mr Klemenis also gave Ms Byrnes and her young daughter, Gabrielle, gifts, and, on occasion, birthday or Christmas gifts. On one such occasion, Mr Klemenis purchased a piano for Gabrielle, then aged four.

44 Ms Byrnes was aware of Mr Klemenis’ strongly held views which were racist and “moralistic” in nature. While Mr Klemenis liked neither Russians, nor Asians and was strongly anti-Semitic, Ms Byrnes described his racism as “selective”. She stated, for example, that Mr Klemenis’ treating General Practitioner, Dr Prasad, was of Indian ethnic origin and that Mr Klemenis had considerable respect for him.

45 Mr Klemenis also had strong views in relation to issues such as abortion, pre-marital sex, extra-marital sex and contraception. Ms Byrnes recalled Mr Klemenis as saying things such as “the end of the world will be coming soon”. She also recalled Mr Klemenis confiding in her that he was suffering from schizophrenia and that he had been diagnosed with the condition some time prior to the death of Ms Byrnes’ mother. Ms Byrnes acknowledged Mr Klemenis’ unusual beliefs but stated that to her knowledge “he did not ever suffer any episodes of hallucinations or irrational behaviour”. She described conversations with Mr Klemenis as “normal” and Mr Klemenis’ manner as “lucid and coherent”.

46 Ms Byrnes stated that so far as Mr Klemenis’ relationship with his two adult children was concerned, from the moment she met him she was aware that the relationship was a strained one and that they had little contact. Ms Byrnes stated that she cannot recall ever seeing Mr Klemenis’ children visiting him whenever she visited him and she stated that he rarely spoke of his children except to express “anger towards them and on (sic) his disappointment in them”.

47 Ms Byrnes recalled one occasion when Nijole Chan visited her dying mother. Ms Byrnes stated that Mr Klemenis told her that he did not like the fact that Nijole had asked her mother to change her will in favour of Nijole. Ms Byrnes recalled that Mr Klemenis said, on a number of occasions, words to the effect that he did not like the fact that Nijole had married an Asian man. Ms Byrnes also recalled that Mr Klemenis did not like the fact that his son had changed his family name, anglicising the name to “Clemens”. In relation to contact between Mr Klemenis and his two children, Ms Byrnes recalled Mr Klemenis saying words to the effect of, “I don’t ever see my daughter. My son comes and sees me occasionally when he wants something”.

48 Ms Byrnes described an affectionate relationship between her mother and Mr Klemenis. She recalled that her mother confided to her an interest in marrying Mr Klemenis, and that Mr Klemenis gave her mother a sapphire ring as a gift. She did not wear the ring but carried it with her. When she died, Ms Byrnes placed the ring in her mother’s coffin. Ms Byrnes recalled that Mr Klemenis was inconsolable when her mother died. Ms Byrnes stated that for the first three months after her mother’s death when she visited Mr Klemenis he would weep and speak of her mother.

49 Ms Byrnes stated that her mother made arrangements for Mr Klemenis in the nature of attending to his finances. After her death, Mr Klemenis told Ms Byrnes words to the effect, “You will have to look after paying my bills like Kathleen [Ms Byrnes’ mother] did”.

50 Ms Byrnes stated that she started assisting Mr Klemenis to pay his bills. She recalled that he was deeply affected by her mother’s death and required “ongoing assistance” with tasks her mother had helped him with. After a time the assistance he required became more onerous on Ms Byrnes in terms of both the nature and number of requests. Ms Byrnes began to take Mr Klemenis shopping and took responsibility for paying an increasing number of bills for him. Ms Byrnes recalls that she raised questions as to the legality of her doing that for Mr Klemenis without a Power of Attorney. Mr Klemenis was under the impression that the Power of Attorney that Ms Byrnes’ mother had been given would pass to Ms Byrnes. On 28 October 1997, Mr Klemenis arranged for Ms Byrnes to act as his Power of Attorney.

51 After her mother’s death, Ms Byrnes would speak with Mr Klemenis on a daily basis and would visit him two or three times a week. Mr Klemenis regularly ate with her and they would go shopping together. During their time together the pair would discuss news and current affairs and Mr Klemenis would make inquiries as to Ms Byrnes’ work and about Gabrielle.

52 Ms Byrnes recalled that it was after her mother’s death that Mr Klemenis, who once took “a great deal of pride in his appearance”, ceased to take particular care of himself. Prior to her mother’s death, Mr Klemenis cooked meals for himself or for Ms Byrnes’ mother. He continued to cook for himself for a period of three months after Kathleen Byrnes’ death and then he stopped doing so. Ms Byrnes cooked meals for him or arranged for him to dine with herself and her daughter.

53 Ms Byrnes stated in her affidavit that at Mr Klemenis’ invitation she accompanied him to see his solicitor about preparing a Power of Attorney. At this meeting, the deceased said he wished to make a Will. She stated that she was present when he consulted with the solicitor. Ms Byrnes stated that Mr Klemenis indicated he wanted to appoint Ms Byrnes as executor and he wanted his estate to go to her but in the event that she pre-deceased him, he wanted his estate to go to her daughter, Gabrielle.

54 Ms Byrnes stated that prior to that meeting she was not aware that it was Mr Klemenis’ intention to dispose of his assets in this manner. She stated that the solicitor prepared the Power of Attorney and the Will the same day and that Mr Klemenis signed both documents. Ms Byrnes stated that to the best of her recollection she was not present when the Will was signed.

55 Ms Byrnes explained that the only monies ever lent her by Mr Klemenis were monies in the sum of $4,000 for her mother’s funeral expenses. When Kathleen Byrnes’ estate was finalised, Ms Byrnes repaid the monies loaned to her by Mr Klemenis. Ms Byrnes denied that Mr Klemenis lent any other money to her and explained that a cheque Mr Klemenis wrote for $20,000 was never drawn and that she made arrangements with Mr Klemenis’ bank for the cheque to be cancelled. Ms Byrnes denied any liability to Mr Klemenis’ estate.

56 In early 1998, Ms Byrnes arranged respite care for Mr Klemenis at a facility close to Ms Byrnes’ home. At the time, Ms Byrnes had a male boarder living with her. Mr Klemenis accused Ms Byrnes of having an affair with him and told her that her (assumed) behaviour was “not right”. At this time Ms Byrnes was separated but not divorced from her husband. Ms Byrnes recalled that subsequently on several occasions Mr Klemenis spoke to her in a hostile and angry manner.

57 Ms Byrnes recalled that Mr Klemenis was also anxious that he continue to receive care from her and even suggested that he should move in to live in Kathleen Byrnes’ former quarters in Ms Byrnes’ home. In Mr Klemenis’ view he could better “protect” Ms Byrnes and Gabrielle by doing so.

58 In early 1998, Ms Byrnes first noticed that Mr Klemenis was paying less and less attention to his personal hygiene and appearance and, consequently, Mr Klemenis required more care. Ms Byrnes recalled a steady deterioration in the manner in which Mr Klemenis kept his house to the point where there were piles of rubbish throughout the house and the hot water did not work. He became increasingly forgetful. Ms Byrnes described the deterioration in memory throughout 1998 as “fairly significant”. She said, for example, Mr Klemenis would forget various appointments that he had to attend and so Ms Byrnes began to remind him about his appointments.

59 During 1998 Mr Klemenis developed a habit of ringing Ms Byrnes continually, sometimes between nine and 10 times a day. Ms Byrnes stated that during those telephone conversations Mr Klemenis had difficulty remembering what day it was. Ms Byrnes recalled that in about June 1998 Mr Klemenis was visited by a member of the Hunter Area Health Service. So far as she is aware, Mr Klemenis had been referred to them by ACAT (the Aged Care Team) whom Ms Byrnes originally contacted in relation to respite care for Mr Klemenis.

60 During 1998 Mr Klemenis’ accusations of an affair between Ms Byrnes and her boarder continued. Mr Klemenis told Ms Byrnes at one time that he had been contacted by an unidentified third party who had informed him of the affair. On another occasion, Mr Klemenis told Ms Byrnes that her estranged husband was not Gabrielle’s father and that Ms Byrnes’ boarder was Gabrielle’s father.

61 In August 1998, Ms Byrnes contacted the Hunter Mental Health Services with her concerns about Mr Klemenis. A member of the Health Service contacted Ms Byrnes to inform her that they had visited Mr Klemenis and that they had made a further appointment to visit him again. Ms Byrnes noted that after this initial visit Mr Klemenis did not seem to improve and that she had to take steps to distance herself from him. Ms Byrnes stated that despite her attempts, Mr Klemenis would visit her at her home and request assistance from her.

62 Throughout this period, Mr Klemenis continued to make accusations of sexual impropriety. In addition, he contacted Ms Byrne’s boarder’s wife and the principal at the school in which Ms Byrnes taught. She was informed that Mr Klemenis had contacted the CEO of the Catholic Education Office with allegations that Ms Byrnes was unfit to work in a Catholic institution.

63 In the latter half of 1998 Ms Byrnes maintained contact with the Hunter Mental Health Service informing them of her observations of Mr Klemenis’ condition. Ms Byrnes stated that she became concerned about his deterioration and she was concerned that he might harm either himself or another person.

64 In December 1998, Ms Byrnes was contacted by a person from the Hunter Mental Health Service who suggested that Mr Klemenis be “scheduled”. Ms Byrnes stated that she agreed with this suggestion and Mr Klemenis was subsequently admitted to James Fletcher Hospital.

65 In late 1998, an application was made to the Guardianship Tribunal in relation to Mr Klemenis. The hearing took place on 9 February 1999. Ms Byrnes attended and gave evidence including a description of her observations of Mr Klemenis’ deteriorating condition and her concerns. As recorded in paragraph [8], an order was made that the Protective Commissioner be appointed Guardian for Mr Klemenis.

66 After the order was made, Mr Klemenis was moved from James Fletcher Hospital to Figtree nursing home in Toronto. Ms Byrnes ceased her daily management of Mr Klemenis’ affairs, management having been assumed by the Protective Commissioner.

67 Ms Byrnes stated that following these arrangements Mr Klemenis bore no ill will towards her. Ms Byrnes stated that Mr Klemenis told her words to the effect, “I like it here [at Figtree] and the people I’m with. The only thing I don’t like is the food”. Mr Klemenis did, however, continue with his accusations of impropriety against Ms. Byrnes. Although she would bring Gabrielle to visit him, Ms Byrnes stated that she ceased to do so after a time as Mr Klemenis maintained his accusations and criticisms in relation to her alleged improprieties.

68 Ms Byrnes stated that she continued to visit Mr Klemenis until October 2001. Initially she would visit him five times a month but the frequency of the visits lessened over time until, by October 2001, Ms Byrnes visited him only once a month. Ms Byrnes explained that the reason for the change was that she obtained casual employment in Port Macquarie and would only visit Newcastle once every one to two months. Ms Byrnes stated, however, that whenever she did return to Newcastle she visited Mr Klemenis. When she did visit, she got on well with him but he continued to ask about her relationship with Mr Hamilton.

69 Ms Byrnes last saw Mr Klemenis on 3 March 2003 for his birthday. He was still at Figtree and appeared well cared for and clean. Ms Byrnes described him as calm and recalled that he would speak to her in a proper fashion. He would ask about Gabrielle and wanted to reminisce about Kathleen Denyer. He needed assistance with walking and used a walking frame for this purpose. Mr Klemenis died six months later. The Protective Commissioner notified Ms Byrnes of Mr Klemenis’ death and that his final Will (28 October 1997) named her as executor and sole beneficiary.

70 In March 2004, Ms Byrnes’ solicitors received a notice of caveat on behalf of the plaintiffs in these proceedings.

The Will of 28 October 1997 – clause 4

71 The deceased included the following paragraph in his Will:-

“4. I acknowledge that I have made no provision whatsoever in this my will for my Son ROMUALDAS KLEMENSIS [sic] (also known as Tommy Clements) and my daughter NIJONLE [sic] CHAN and state that I have done this purposefully. I have not spoken to either of my children for at least fifteen (15) years and consider that no relationship exists between us. I believe that they have rejected me and do not consider me as their father and they having been adequately provided for during their childhood should take no benefit under the provisions of this my Will.”

72 This clause in the Will was the subject of considerable attention during the course of the proceedings. It was submitted, inter alia, that there were factual inaccuracies in it, in particular, the reference to not having spoken to his children for at least 15 years. It was submitted that a statement of belief of they having rejected him was also a reverse of the true situation.

73 Mr Gilbert on behalf of the defendant, submitted in relation to Mrs Chan, that it appeared that the deceased had not spoken to her for approximately 13 years and that there was no substantial factual inaccuracy involved in clause 4 in this respect. It was acknowledged that the deceased’s son had spoken to his father on a number of occasions during the 15 years preceding the making of the Will, but that the contact between them was “minimal”. Such contact as existed was said to have been for short periods of time and was of unsatisfactory nature. It was submitted on behalf of the defendant that any inaccuracy on this aspect could not, of itself, lead to the conclusion that the Will was invalidated by reason of a lack of testamentary capacity. It was suggested that, as the Will was prepared “on the spot”, there may have been inaccuracies inadvertently made and they may be attributed to the fact that the deceased was simply exaggerating the position. It was finally submitted that any factual inaccuracy as to the lack of contact with the deceased’s son may be attributable simply to either exaggeration or the frailty of human recollection.

74 In relation to the statement made by the deceased of having been rejected by his children, it was observed that that statement is preceded by the phrase “I believe that” (they had rejected him). Seen in this light, it is said that this was an expression of the deceased’s belief and that it was one which was at least open to him to form, whether or not it truly did accord with the objective facts. Mr Gilbert submitted that there may indeed have been good reasons for the children to have rejected him and not to have treated him as their father and that, in effect, formed the basis for the deceased’s belief.

75 I accept the general thrust of these submissions that too much should not be read into the terms of clause 4 of the Will in relation to testamentary capacity. I will return to this aspect again below.

The plaintiffs’ expert evidence on the issue of testamentary capacity

(a) Dr Krishna Prasad

76 In his affidavit sworn on 7 December 2005, Dr Krishna Prasad, general practitioner, stated that he treated Mr Klemenis as a patient in his general medical practice for approximately 25 years until the time he was placed in an aged care facility in late 1998 to early 1999. Annexure “A” to Dr Prasad’s affidavit is a copy of Dr Prasad’s report in relation to the deceased dated 12 November 2005. In it, Dr Prasad identified the material, clinical notes and letters from colleagues, which formed the basis for the opinion expressed in his report.

77 Dr Prasad stated that Mr Klemenis had been diagnosed with, and was undergoing treatment for, Chronic Schizophrenia, early dementia, COPD and Prostate Cancer (prostatic carcinoma).

78 Dr Prasad stated that during the 1990s and until his death in 2003 Mr Klemenis’ mental state was such that psychiatric intervention, including admission to Hunter Mental Health care facilities, was necessary. Mr Klemenis’ delusions, paranoia, and the impairment in his memory and cognitive function had progressed to an extent that such intervention became necessary.

79 Dr Prasad expressed his opinion in that report that Mr Klemenis may not have been in the right frame of mind to make rational decisions when he executed his Will in 1990 or his Will in 1997. Dr Pasad’s opinion is based on the extent of Mr Klemenis’ cognitive impairment as he had assessed when he saw him.

(b) Dr Thomas Edmeades

80 In his affidavit sworn 28 October 2005, Dr Thomas Edmeades, psychiatrist, stated that he has no independent memory of his treatment of Mr Klemenis due to his own ill health. He stated that he is at least aware that he treated Mr Klemenis in his capacity as a psychiatrist in 1964, July 1984, mid-1986, on 19 August 1987, 22 August 1988, 9 April 1990 and 24 February 1992.

81 In a letter dated 3 July 1984 and addressed to Dr Prasad (Annexure “A” to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis had difficulty in 1964 with “recall” and that in 20 years there had been no further significant deterioration in his condition. Dr Edmeades stated that Mr Klemenis was “very upset” when his daughter married a Chinese man. He also stated that Mr Klemenis did not have “a prolonged grief reaction” to his wife’s death in April 1984 and was inquiring about whether or not he could remarry.

82 In a letter dated 20 August 1987 and addressed to Dr Prasad (Annexure “B” to the affidavit of Dr Edmeades), Dr Edmeades stated that most of Mr Klemenis’ physical functions were normal but that he still had a “fair degree of overall tension and is somewhat apprehensive of the future”. Dr Edmeades stated that Mr Klemenis is “mildly paranoid about Governments in general” but that it was his opinion that it would be preferable that Mr Klemenis persevere without medication.

83 In a letter dated 23 August 1988 and addressed to Dr Prasad (Annexure “C” to the affidavit of Dr Edmeades), Dr Edmeades recounts for Dr Prasad the difficulties experienced by Mr Klemenis in relation to keeping appointments with him. Dr Edmeades stated that Mr Klemenis informed him that the past 12 months had been the worst he had experienced, Mr Klemenis having had problems with vomiting, pain in the abdomen and having undergone a prostatectomy. Mr Klemenis was not able to tell Dr Edmeades whether the cancer was malignant but told Dr Edmeades that he had been assured that all would be well.

84 Dr Edmeades described Mr Klemenis as “gradually decorticating” and he indicated that that condition would probably become progressively worse. Dr Edmeades advised taking an approach whereby he would offer Mr Klemenis support as and when it was needed.

85 In a letter dated 18 April 1990 and addressed to Dr Prasad (Annexure “D” to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis’ main anxieties related to his loss of sexual motivation and his failure to find a satisfactory female partner. He referred to Mr Klemenis’ “overly religious friend” and that Mr Klemenis is afraid to let the relationship develop any further as he was apprehensive about the future and what might happen to him financially should the marriage break down.

86 Dr Edmeades stated that he left to Mr Klemenis the issue of making any further appointments and stated that Mr Klemenis “usually stays afloat for six to 12 months after having a talk”.

87 Finally, in a letter dated 25 February 1992 and addressed to Dr Prasad (Annexure “E” to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis wanted to talk about his carcinoma of the prostate and his treatment in relation thereto, and he queried why his doctor was advising castration. Dr Edmeades noted that Mr Klemenis was being treated through the Oncology Unit and that he was due for another bone scan in March 1992. He also noted that he had prescribed alternative medication for Mr Klemenis to aid him in sleeping because Mr Klemenis had been experiencing discomfort and side effects from the original prescription.

(c) Dr David Bell – Psychiatrist

88 In his expert report written for the purpose of these proceedings (Annexure “C” to his affidavit sworn 2 July 2006), Dr David Bell observed that, what appears from his review of the evidence was that “all agree that [Mr Klemenis] had chronic schizophrenia” (Report, paragraph 2). Dr Bell stated that the delusional productions of chronic schizophrenia distort the beliefs of the sufferer rendering “the testator incapable of arriving at a balanced judgement about the call that his children have upon his bounty,” thereby removing “an essential plank on which testamentary capacity depends”.

89 Dr Bell noted that, according to the affidavits of Mr Clemens, Ms Chan and Dr Phillips, Mr Klemenis was confused about the length of time during which he had not had contact with either of his children. In addition, Dr Bell noted that Mr Klemenis stated in his Will that his children had rejected him as a father and that his children considered that he was no longer their father. While Dr Bell observed that such confusion might be explained by the loss of memory the result of mild dementia, he opined that such confusion was “more likely … explained by his delusional belief” (Report, paragraph 3).

90 Dr Bell noted that what appears from the affidavits of Mr Clemens and Ms Chan is that Mr Klemenis had rejected his children despite the overtures made to him by each of his children over the years to repair the gap between them (Report, paragraph 4). Dr Bell opined that Mr Klemenis’ confusion reflects the “delusional paranoid beliefs, which he had in his mind” (Report, paragraph 4). Dr Bell continued, explaining that “[i]n psychiatric terms, he had projected into their minds a construction which had originated in his and had maintained that projection in the face of good reason to deny its validity” (Report, paragraph 4).

91 “Projection maintains the force of a delusion in the face of evidence to the contrary” (Report, paragraph 4). The result of such projection is that “it serves to maintain false beliefs” (Report, paragraph 5). In relation thereto, Dr Bell observed that Mr Klemenis had strong racial prejudices which “could be taken to explain his rejection of his daughter after she married an Asian” (Report, paragraph 6). However, he stated that “his inherited prejudices have no relevance to the false beliefs expressed in his will about his son” (Report, paragraph 6). This statement, Dr Bell explained, is based on the “general thrust of the facts” as asserted in the affidavits of Mr Clemens and Ms Chan and Dr Bell’s assessment that those affidavits reflect “the truth of the matter” (Report, paragraph 6).

92 The fact that Mr Klemenis was suffering from schizophrenia, had delusions and was assessed by the Guardianship Tribunal as incapable of managing his own affairs, Dr Bell stated “do not in themselves necessarily remove testamentary capacity” (Report, paragraph 8). The decision of the Guardianship Tribunal, according to Dr Bell, has “only an inferential relevance of relatively weak force” and only then such relevance would be limited. The squalor in which Mr Klemenis was living provided “an indication of how severe Mr Klemenis’ schizophrenic illness had become and indirectly the force that the delusions exercised on his mind” (Report, paragraph 8).

93 Dr Bell stated that the fact that Mr Klemenis was not of sound mind, memory or understanding at the time of making his Will are facts relevant to the question of testamentary capacity. Having regard to the fact that the deceased was not of sound mind or memory, Dr Bell opined that Mr Klemenis lacked testamentary capacity.

94 In his affidavit of 8 December 2005, Mr Clemens describes two occasions when Mr Klemenis appeared to go into a “coma”. One of these incidents occurred in 1998 at James Fletcher Hospital and the second in John Hunter Hospital. Dr Bell observed that the “state of sitting immobile and staring straight ahead seen in a person who has chronic schizophrenia was probably catatonic” (Report, paragraph 11). Dr Bell explained that a catatonic state does not result from a coma but instead “appears to be a freezing of the body while the mind becomes totally occupied with psychotic thoughts” (Report, paragraph 11). Dr Bell opined that such incidents, particularly when considered alongside the squalor into which Mr Klemenis sank, are an indication of the “mental illness having great severity” (Report, paragraph 11).

95 Dr Bell also observed that towards the end of his life, Mr Klemenis developed “delusions” about Ms Byrnes (Report, paragraph 19). One particular delusion he highlighted was that of Mr Klemenis’ stated belief that the married man who boarded with Ms Byrnes on weekdays was having a sexual relationship with her. Mr Klemenis became convinced that she was doomed to hell and he wanted to move in with her in order to protect her. Mr Klemenis developed the habit of telephoning Ms Byrnes frequently and eventually telephoned her place of work to relay his beliefs as to her alleged immorality. There reached a point where Ms Byrnes became concerned for her safety, although she did not indicate the nature of those concerns.

96 In relation to the death of Mrs Klemenis, Dr Bell observed that Mr Klemenis “clearly did not have a grief reaction” (Report, paragraph 21). Dr Bell noted that in 1964 Mr Klemenis had been prescribed medication to which he had “responded well”. However, in 1987, a report in relation to the previous 12 months noted Mr Klemenis’ decline in memory and his “mild paranoia” about governments. Dr Bell observed that at this time, Mr Klemenis was not taking any medication. The clinical notes in the following decades do not refer to any further decline in Mr Klemenis’ power of memory (Report, paragraph 22).

97 Dr Bell opined that Dr Edmeades’ reference in clinical notes to Mr Klemenis’ declining memory, a decline to which no subsequent reference is made in any of the material reviewed by Dr Bell for the purpose of his report, would indicate “what could have been chronic schizophrenia over these years, but do not reveal any definitely diagnostic feature” (Report, paragraph 25). Dr Bell continued, suggesting that “schizophrenia could explain the apparent impairment of memory which did not advance over a period of 20 years” (Report, paragraph 25).

98 In relation to Mr Klemenis’ meeting on 14 April 1994 with a member of the Hunter Area Psychogeriatric team, Dr Bell noted that in 1994 Mr Klemenis “recognised well that his daughter had not broken off with him, but rather he had cut her and her children off” (Report, paragraph 27). Dr Bell opined that, “a failing memory does not explain the falsities” (Report, paragraph 27).

99 Dr Bell observed that all those practitioners responsible for treating Mr Klemenis agreed that he was suffering from chronic schizophrenia and, in Dr Bell’s opinion, he was suffering from “late onset schizophrenia” (Report, paragraph 30). Dr Bell explained that late onset schizophrenia “differs from that which begins earlier in life by being far less florid and far less damaging to the capacity for rational thought and personality. As a result, it can be very difficult to recognise. Typically these cases are not frankly psychotic even if they advance their delusions openly. Mr Klemenis would appear to have characteristics of this late-onset type of schizophrenia. It would appear to have progressed further in terms of his delusional beliefs about his children by the time that he made out his will of October 1997” (Report, paragraph 30).

100 Having regard to Mr Klemenis’ increasingly harassing behaviour towards Ms Byrnes and his own diagnosis of late onset schizophrenia, Dr Bell observed that “even in old age the individual can be a significant menace”, and opined that Mr Klemenis “would appear to have had this progression” (Report, paragraph 33).

101 In composing his report, Dr Bell had regard to the findings of Ms Cody, a psychologist attached to the James Fletcher Hospital, contained in her report dated 15 December 1998 to the Guardianship Tribunal. In that report Ms Cody concluded that Mr Klemenis could not make informed arrangements about his financial affairs and future living arrangements.

102 In his report, Dr Bell stated that “different factors bear upon the separate issues that concern the matter of guardianship as distinct from testamentary capacity”, although they may coincide (Report, paragraph 36). Dr Bell opined that those factors do coincide in the case of Mr Klemenis (Report, paragraph 36). Dr Bell explained that “the delusional ideas produced by the schizophrenic process affect both through much the same mechanism, his beliefs. The ideas that rendered him unable to plan his affairs have also distorted his thinking about the call that his children have on his bounty” (Report, paragraph 36).

103 Similarly, in reports to the Guardianship Tribunal, both Dr Raymond and Dr Prasad arrived at the conclusion that Mr Klemenis was incapable of making decisions in his own best interest (Report, paragraph 38). Dr Bell notes that Dr Prasad reported a similar decision to the Tribunal in February 1999 (Report, paragraph 38).

104 In relation to the hospitalisation of Mr Klemenis on two occasions in 1999 and Mr Klemenis’ omitting certain details of his hospitalisation when reviewed by Dr Ticehurst in February 2000, Dr Bell opined that “Mr Klemenis may have had some type of progressive dementing condition, but on balance the evidence indicated that it was so minor as to be an insignificant factor in governing his behaviour and judgments” (Report, paragraph 40). Dr Bell elaborated, stating that given Mr Klemenis’ capacity to recall events, even with omissions, “the initial impression of memory impairment had not been correct, particularly as he gave a reasonably coherent history” (Report, paragraph 40).

105 Having regard to Mr Klemenis’ performance in a Mini Mental State examination (a score of 26/30), a strong indication that he did not have dementia, Dr Bell opined that Mr Klemenis “did not have a significant dementia, but rather was incapacitated by the effect of his chronic schizophrenia” (Report, paragraph 42).

106 Dr Bell stated that he could not agree with Dr Phillips’ conclusion that Mr Klemenis decided to disinherit his children on reasonable grounds rather than as a result of insane delusions for the reason that Dr Phillips seems not to have had all the affidavit material before him concerning the history of the efforts made by Mr Klemenis’ children to maintain a relationship with their father (Report, paragraph 46). Dr Bell explained that he would better understand Dr Phillips’ conclusion were Dr Phillips to give reasons why he disregarded aspects of the affidavit evidence.

107 In the final analysis, Dr Bell opined that Mr Klemenis did not have testamentary capacity when he made his will on 28 October 1997 by reason of his long-held insane delusions in the context of his paranoid schizophrenia (Report, paragraph 48). Dr Bell stated that Mr Klemenis cut his children off as a result of his delusional beliefs and, similarly, he resisted the many attempts made by each of his children to restore the filial relationship. Dr Bell noted that in light of the affidavit evidence relating to the efforts made by both Mr Clemens and Ms Chan, Mr Klemenis’ purported Will contains statements that appear to be false (Report, paragraph 48).

108 On the assumption that the affidavits of Mr Clemens and Ms Chan reflect the truth of the matter, Dr Bell opined that the false statements in the purported Will were the result of the late Mr Klemenis’ delusional beliefs (Report, paragraph 49). Dr Bell concluded that on the basis of the available material, the deceased lacked testamentary capacity by reason of his insane delusions which “rendered him incapable of arriving at a sound assessment of who had justifiable claim on his bounty” (Report, paragraph 49).

The defendant’s expert evidence on the issue of testamentary capacity

(a) Dr Jonathon Phillips – Consultant Psychiatrist

109 In two affidavits, sworn on 23 May 2006 and on 30 August 2006 respectively, Dr Phillips attached his primary report on the deceased and to the issue as to testamentary capacity and his report in response to Dr Bell’s report.

110 In the report dated 31 March 2006 (Annexure “B” to his affidavit sworn 23 May 2006), Dr Phillips stated that while there is “not (sic) doubt that Mr Klemenis suffered a chronic psychotic disorder (probably paranoid schizophrenia) and that from time to time he held delusions of jealousy” (page 11), it was his “firm opinion” that Mr Klemenis was suffering from “mild/moderate cognitive impairment” (page 11). It was his opinion, however, that such impairment is “unlikely” to prevent a testator from appreciating the call near family members might have on the testator’s estate and does not interfere with the reasoning process required for the preparation of a Will (page 11).

111 The basis for Dr Phillips’ opinion is his review of patient records, which reflects Mr Klemenis’ “slowly deteriorating cognition from the early 1990’s (sic) and with mild/moderate cognitive impairment at/around the time of preparing his final will” (page 10). Dr Phillips stated that the patient records indicated that Mr Klemenis was suffering from mild dementia occasioning problems with new memory rather than problems with long-established information in relation to assets and their distribution to near family members (page 10). In relation to the decision of the Guardianship Tribunal Dr Phillips took a similar view as Dr Bell, opining that he regarded the decision as having no bearing on the question of Mr Klemenis’ capacity to prepare his Will (page 12).

112 Dr Phillips noted Mr Klemenis’ statement in his Will to the effect that as at the time of making it (28 October 1997) he had no contact with either of his children for the past 15 years. Dr Phillips noted that Mr Clemens stated in his affidavit that he had regular and frequent contact with his father in the late 1980s through the early 1990s and then again in the six months immediately prior to his father’s death. Dr Phillips passed no comment on the inconsistency between Mr Klemenis’ statement in his Will and Mr Clemens’ affidavit.

113 Dr Phillips observed that it is difficult to assess a patient on the basis of patient records and cautions that a diagnosis of cognitive impairment or mental illness does not necessitate the conclusion that the testator lacked testamentary capacity (page 9). In relation to the diagnosis of chronic schizophrenia, he stated that the issue which arises from the diagnosis is whether the condition produces “insane delusions” likely to interfere with a testator’s reasoning capacity in relation to the preparation of their Will.

114 Dr Phillips posited the question of insane delusions in Mr Klemenis’ case as requiring consideration as to whether his delusions in relation to his son and daughter “were of intensity sufficient to poison his affection regarding his son and daughter and to cause him not to make his son and daughter beneficiaries of the will” (page 11).

115 Dr Phillips identifies the relationship between Mr Klemenis and his two children as “estranged” and states that “there had been no interaction with his daughter for many years and interaction with his son was intermittent and relatively unsatisfactory as best” (page 11). He stated that Mr Klemenis, by reason of his “eccentric personality and cantankerous behaviour and his prejudice” may have been the cause of the estranged relationship (pages 10-11). He then stated that “there is little information available to me to suggest that either Mr Klemenis’ son or his daughter had put particular effort into maintaining a relationship with him, or supporting him in the years preceding his death when he was troubled by increasingly severe psychiatric and physical problems”. Dr Phillips concluded, “simply there was no or very little reciprocity in the relationship” (page 12).

116 Dr Phillips expressed the opinion that in these circumstances it was not unreasonable for Mr Klemenis to have concluded that there was no ongoing relationship with either his son or daughter and consequently, that he did not want either of them to be beneficiaries of the Will. On the basis of his analysis of the material, Dr Phillips opined that Mr Klemenis’ decision not to include his children in his Will was not the result of insane delusions (page 12).

117 In his report, Dr Bell noted that there was no explanation as to why Dr Phillips arrived at this conclusion in relation to the efforts made by each of Mr Klemenis’ children to form a relationship with their father.

118 In his report in response to Dr Bell’s report, Dr Phillips reiterated his earlier advice as to the difficulty of evaluating testamentary capacity on the basis of hospital records and other documents (Report, page 7). Dr Phillips also restated his position that a person suffering mild or moderate cognitive impairment such as that which occurred in the early stages of dementia, does not necessarily lack testamentary capacity. Dr Phillips reasserted his diagnosis that Mr Klemenis suffered “mild” cognitive impairment and that such impairment did not interfere with his “deliberation/reasoning” process to an extent of precluding Mr Klemenis from addressing issues relevant to the preparation of his Will. Dr Phillips stated that Mr Klemenis’ 1997 Will demonstrates that he reasoned in a precise manner his decision to exclude his son and daughter from it.

119 Dr Phillips acknowledged that while Mr Klemenis was clearly prejudiced, there is a distinction between false beliefs born of prejudice and false beliefs the product of insane delusions. Dr Phillips, in his opinion, did not equate Mr Klemenis’ prejudices with psychosis or insane delusions. Specifically, he opined that Mr Klemenis’ decision to disinherit his daughter was based in prejudice and not psychosis. Dr Phillips opined that, “it is more probable … that Mr Klemenis made an entirely conscious and reasoned decision to exclude his daughter and his son from his estate, knowing that he had the privilege of distributing his estate in a manner desired by him”.

Testamentary freedom

120 The freedom of testamentary disposition is recognised and upheld by Australian law and is an important right and a determination that a person lacked testamentary capacity at the time of making their Will is “a grave matter” (Re Estate of Griffith (1995) 217 ALR 284 at 294, per Kirby P (as he then was) at 290, per Gleeson CJ).

121 Similarly, in cases such as this where an alternative claim is made under the Act the claim must be understood as arising under legislation premised upon the assumption of freedom of testamentary disposition: Hunter v Hunter (1987) 8 NSWLR 573 at 576, per Kirby P; Re Estate of Griffith (supra) at 294, per Kirby P.

122 In enacting the Act, Parliament did not provide courts with broad discretionary power to consider whether a testator acted unjustly, unwisely or harshly (Re Estate of Griffith (supra) at 294, per Kirby P). Indeed, Kirby P stated that freedom of testamentary disposition “includes a freedom to be unfair, unwise or harsh with one’s property” (Re Estate of Griffith (supra) at 294). Kirby P explained that “[t]he provisions made by a will shall therefore only be disturbed if adequate provision has not been made for a spouse or child who claims” (Hunter v Hunter (supra) at 576). The extent of any disturbance is discretionary and limited to the extent only that is necessary to make adequate provision for the proper maintenance, education or advancement in life” of the eligible applicant (Hunter v Hunter (supra) at 576, per Kirby P).

Testamentary Capacity

123 Whether a testator was possessed of testamentary capacity involves consideration of the question whether the testator, at the time of making his or her Will, was of sound mind, memory and understanding: Bailey v Bailey (1924) 34 CLR 558 at 559. The classic statement of the test for determining whether a testator had testamentary capacity at the relevant time is that stated in Banks v Goodfellow (1870) LR 5 QB 549 at 570:-

207 I have also concluded that provision ought to be made out of the estate for both plaintiffs. However, I am required to consider and evaluate the particular circumstances of each plaintiff, having regard to all the relevant considerations to which I have earlier referred and as individually affecting each of them.

208 Amongst those considerations, I am required to take into account the nature and extent of each plaintiff’s present and reasonably anticipated future needs. By reason of her financial position, Mrs Chan’s needs are not as pressing as those of her brother or of the defendant. As stated earlier, Mrs Chan has no dependants but has no firm prospect of work. These matters will be reflected in the amount of the orders which I propose to make. I also take into account that Mr Clemens made some material contribution in the early years to the construction of the home.

209 The claims of the plaintiffs, as earlier stated, must be approached in the light of the competing claims upon the testamentary beneficence of the deceased. The only such competing claim is that of the defendant. The Court is required to balance any needs of the plaintiffs as adult children of the deceased with the provision made for the defendant: Eather v Maher [2006] NSWSC 746. Ms Byrnes enjoyed an active relationship with the deceased and I take that into account. I also have regard to and take into account her personal circumstances.

210 Mr Ellison, counsel for the plaintiffs submitted that a tripartite division of the net divisible estate would be appropriate in the division of 40% to Mr Clemens, 40% to Mrs Chan and 20% to the defendant, Ms Byrnes.

211 Mr Gilbert, counsel for the defendant, has correctly indicated that he has accepted that the plaintiffs are deserving claimants. He suggested the appropriate division would be $25,000 to $50,000 for Mrs Chan, $75,000 to $100,000 for Mr Clemens and the remainder to the defendant.

212 I have determined, having regard to the matters to which I have referred, that there be provision for the plaintiffs out of the net residue of the Estate of the testator upon the following bases:-

(a) Mr Clemens, a 40% share of the net value of the Estate;

(b) Mrs Chan, a 25% share of the net value of the Estate.

213 That determination will result in Ms Byrnes having a 35% share of the net value of the Estate.

214 I propose that the parties produce short minutes of order to give effect to this judgment.

215 I reserve the question of costs and will, if necessary, hear submissions as to the appropriate order in that respect.

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