d'Apice v Gutkovich - Estate of Abraham (No 2)

[2010] NSWSC 1333

CITATION:	d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333
HEARING DATE(S):	25, 26, 27 & 28 October 2010
JUDGMENT DATE :	22 November 2010
JURISDICTION:	2009/300599
JUDGMENT OF:	White J
DECISION:	1. Order that probate of the will in solemn form of Irene Abraham made on 3 December 2004 be granted to the plaintiff; 2. order that the proceedings be referred to the Registrar to complete the grant; 3. order that the claims in paragraphs 2, 3 and 4 under the heading “Relief Claimed” in the further amended statement of claim be dismissed; 4. order that the cross-claim be dismissed; 5. order that the costs of the plaintiff on the indemnity basis be paid out of the assets of the estate; 6. The exhibits are to be dealt with in accordance with Part 51, rr 51.24 and 51.43 of the Uniform Civil Procedure Rules.
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION – application for grant of probate – whether deceased had testamentary capacity – where deceased made multiple wills – where deceased suffered from dementia and revoked testamentary gift to carer and close companion – where revocation due to deceased’s belief that carer stole from deceased – testamentary capacity required for revocation of gift – whether deceased able to appreciate and weigh claim of carer on estate
LEGISLATION CITED:	Guardianship Act 1987 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Read v Carmody (Court of Appeal, 23 July 1998, unreported); BC9803374 Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 Kerr v Badran [2004] NSWSC 735 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Public Trustee v Elderfield & Anor; Re Estate of Poole (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) Hay v Simpson (1890) 11 LR (NSW) Eq 109 Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Worth v Clasohm (1952) 86 CLR 439
PARTIES:	Plaintiff: William Reginald d’Apice Defendant: Galina Gutkovich
FILE NUMBER(S):	SC 2009/300599
COUNSEL:	Plaintiff: P Blackburn-Hart SC with D C Price Defendant: T J Morahan
SOLICITORS:	Plaintiff: Makinson & d'Apice Lawyers Defendant: Bryden's Law Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 22 November 2010

2009/300599 William Reginald d’Apice v Galina Gutkovich
Estate of the late Irene Rachel Abraham (No. 2)

JUDGMENT

1 HIS HONOUR: These proceedings concern the validity of five testamentary instruments made by the late Irene Abraham between 9 September 2003 and 3 December 2004.

2 Mrs Abraham died on 5 April 2008 aged 98. She left an estate whose net value has been estimated for probate purposes at $3,538,286. Mrs Abraham’s husband had predeceased her. She had no children. Her closest relatives were two elderly cousins in England.

3 Mrs Abraham had made wills on 24 September 2001 and 3 May 2002, but they are not presently in issue. The five testamentary instruments in issue are in date order:

a will dated 9 September 2003;
a will dated 10 May 2004 which revoked the will of 9 September 2003;
a codicil dated 7 July 2004 which revoked the gifts to the defendant in the will of 9 September 2003;
a codicil of 7 July 2004 which revoked the gifts to the defendant in the will of 10 May 2004; and
a will of 3 December 2004 which revoked all prior wills and testamentary dispositions.

4 Mrs Abraham was born on 4 April 1910. She was 93 or 94 when the wills and codicils in question were executed. Medical opinion was that she suffered from moderately severe dementia of the Alzheimer’s type during the whole of the period in question. She had no other apparent psychiatric illness. On 15 July 2004 the Guardianship Tribunal found that Mrs Abraham was not capable of managing her affairs and committed the management of her property and affairs to the Protective Commissioner. The Tribunal also appointed a Mrs Anne Marsden as Mrs Abraham’s private guardian to make decisions on her behalf in relation to health care, medical and dental consents, and services.

5 At her death Mrs Abraham’s property principally comprised real estate and shares. She owned a block of apartments in McKeon Street, Maroubra with an estimated value of $2,600,000 and a unit in Darling Point with an estimated value of $750,000. She owned shares with an estimated value of approximately $138,515. She was also owed money by the defendant pursuant to a judgment debt of approximately $21,500 plus costs.

6 From 1994 until 18 June 2004 the defendant (Mrs Gutkovich) was Mrs Abraham’s carer. She was paid for her services, although Mrs Gutkovich maintained that she received cash payments by way of gift. Mrs Gutkovich and Mrs Abraham established a close relationship. In Mrs Abraham’s will of 24 September 2001 Mrs Gutkovich received a legacy of $10,000. In the will of 3 May 2002 she was left the Darling Point unit and all its contents, a legacy of $300,000 and “my block of apartments in Bondi”. Mrs Abraham did not own a block of apartments in Bondi, although she owned a block of apartments in Maroubra. In the will of 9 September 2003 Mrs Abraham left the block of apartments in Maroubra and a legacy of $300,000 to Mrs Gutkovich. She left her Darling Point unit and a legacy of $500,000 to a long-standing friend, Mr Arthur Cario.

7 In her will of 10 May 2004 Mrs Abraham left to Mrs Gutkovich her block of apartments in Maroubra, the Darling Point unit and a legacy of $300,000. That will also contained a gift over to Mrs Gutkovich’s husband and daughters if she predeceased Mrs Abraham. The will of 10 May 2004 left a legacy of $100,000 to Mr Cario and a legacy of $200,000 to Mrs Marsden.

8 As I have said, the codicils of 7 July 2004 revoked the gifts to Mrs Gutkovich in the two earlier wills.

9 In her last will of 3 December 2004 Mrs Abraham made no provision for Mrs Gutkovich. She made no specific gift of the apartments at Maroubra. She left the Darling Point unit and a legacy of $200,000 to Mr Cario. She again left a legacy of $200,000 to Mrs Marsden.

10 The residuary beneficiaries of all of the wills were Mrs Abraham’s cousins, Yvonne Melnick and Derek Ezra, in England with a gift over to their children if they predeceased her.

11 The plaintiff, Mr William d’Apice, is a partner of the firm Makinson & d’Apice Lawyers who were the solicitors for Mrs Abraham. He is the sole executor under the will of 3 December 2004. He seeks probate of that will. Mrs Gutkovich opposes that claim.

12 Mr William d’Apice and Mrs Gutkovich were both named as executors of the will of 9 September 2003. The executors named in the will of 10 May 2004 were Mrs Gutkovich and a Mr Ramrakha, a solicitor who prepared that will.

13 By her cross-claim Mrs Gutkovich sought probate of the will of 10 May 2004. That claim was not pressed. It was common ground between the plaintiff and defendant that Mrs Abraham did not have testamentary capacity to make the will of 10 May 2004. Mr Ramrakha did not seek probate of the will. He was cited to see the proceedings but did not appear.

14 Both the plaintiff and Mrs Gutkovich sought in the alternative an order that probate in solemn form be granted of the will made on 9 September 2003. The plaintiff also sought probate of the codicil of 7 July 2004 revoking the gift to Mrs Gutkovich in the will of 9 September 2003.

15 Notwithstanding that both parties sought probate of the will of 9 September 2003, and that when that will was made Mrs Abraham was 93 years old and, according to the medical evidence, suffered moderately severe dementia, neither party adduced evidence specifically directed to Mrs Abraham’s testamentary capacity at that date. This was apparently because it was common ground between the plaintiff and Mrs Gutkovich that Mrs Abraham did have capacity at that date. However, if I were to find that Mrs Abraham lacked capacity to make the later testamentary instruments, a real question would arise whether she had testamentary capacity as at 9 September 2003. As I have concluded that Mrs Abraham had capacity to make her last will of 3 December 2004, that question does not arise.

16 The issues litigated were whether Mrs Abraham had testamentary capacity when she made her last will of 3 December 2004 and whether she had sufficient capacity to make the codicil of 7 July 2004 revoking the gift in favour of Mrs Gutkovich in the will dated 9 September 2003.

Background and Chronology

17 As noted above, Mrs Gutkovich became Mrs Abraham’s carer in 1994. Between 1994 and 1998 she spent several hours with Mrs Abraham every day, including weekends, assisting with cooking, cleaning and shopping. Mrs Abraham became physically frail in about 1998 and required further assistance which Mrs Gutkovich provided. From about 2000 Mrs Gutkovich spent about 14 hours per day, including weekends, acting as Mrs Abraham’s carer. Their relationship became one of companionship, as well as being a relationship of carer and client. Mrs Gutkovich was not a nurse or carer by profession. She had no other clients. Mrs Gutkovich deposed that in the few years prior to June 2004, Mrs Abraham‘s health deteriorated and as she became weaker and more dependent on Mrs Gutkovich physically and emotionally. Mrs Abraham became more sentimental and regularly said words to the effect ”you are like the daughter I never had”. Mrs Gutkovich deposed that Mrs Abraham told her that she did not know how to repay the love and affection she was receiving. That evidence was not challenged and I accept it. It is consistent with the gifts made by Mrs Abraham to Mrs Gutkovich in her 2001, 2002 and 2003 wills.

18 On 6 February 2002 Mrs Abraham appointed Mrs Gutkovich to be her guardian if, because of disability, Mrs Abraham became partially or totally incapable of managing her person. The form of appointment of guardian provided that Mrs Gutkovich would have total discretion to decide on matters such as where Mrs Abraham was to live, what health care she was to receive, what other kinds of personal services she was to receive, to consent to the carrying out of medical or dental treatment, to engage or to dismiss other carers, to pay wages to herself or other personal carers, and to buy and pay for personal effects. At the same time she executed a power of attorney in favour of Mrs Gutkovich authorising her:

“ To operate my bank accounts so as to pay wages for my carers including herself and to purchase any items at her discretion for my use and benefit.

To pay for medical treatment out of my bank accounts and for any other bills as they fall due. ”

19 At some time, which was not revealed in the evidence, Mrs Abraham also appointed Mr Arthur Cario as her guardian. (She also at some time, which is not revealed in the evidence, appointed Mr William d’Apice as her attorney under power.) It appears that Mr Cario regularly visited Mrs Abraham on Fridays and examined her financial records. An accountant, Mr Ian Wallace, was also retained.

20 A conflict arose between Mrs Gutkovich, Mr Cario and Mr Wallace.

21 It appears from documents produced on subpoena and tendered by the defendant that on 18 November 2003 Mr Cario contacted an organisation known as JewishCare about Mrs Abraham. He advised the “Intake Worker” that he felt that Mrs Gutkovich was taking advantage of Mrs Abraham financially and had taken $65,000 in the last year. The note prepared by the Intake Worker also records “He says Irene pleads with him ‘not to say anything’”. Mr Cario stated that he did all of Mrs Abraham’s business and that he had had to cash in her term deposits. He stated that $72,800 had come out of the account in the previous year. It appears from records of the Office of the Protective Commissioner tendered by the defendant that in 2004 Mrs Abraham was receiving rents of between about $5,000 and $9,000 per month. Mr Cario’s statement that he had had to cash in Mrs Abraham’s term deposits indicates that the levels of outgoings were in excess of this.

22 A social worker for JewishCare, Mrs Shani Gabai, visited Mrs Abraham with another person from JewishCare on 23 December 2003. According to her diary note of the visit, Mrs Gutkovich refused to allow them to talk to Mrs Abraham in private and stated that she was Mrs Abraham’s friend and guardian, but not her carer. The file note reads:

“ I informed Mrs Abrahams [sic] that I was here because her friend Arthur had suggested we visit. She warmed up after a few minutes and despite the obvious antagonism from Elena Gutnavich [sic] expressed an interest in pursuing the discussion. She in fact informed Elena that it was OK and she wished to converse with us. Elena asked us for written identification and repeatedly said that Mrs Abraham does not wish to speak to us. She threatened to contact her solicitor and said she had legal guardianship papers. ”

23 According to her diary note of 6 January 2004, Mrs Gabai spoke by telephone to Mrs Abraham on that day and was told that Mrs Abraham did not want her to visit, and that she did not require any assistance.

24 On 7 January 2004 Mr Richard d’Apice had a telephone conversation with Mrs Abraham. Mr Richard d’Apice is also a partner of Makinson & d’Apice Lawyers and had acted for Mrs Abraham when she made her will of 9 September 2003. His file note indicates that Mrs Abraham expressed the wish to appoint Mr Cario as her attorney under power and to appoint Mrs Gutkovich as her guardian.

25 On 12 January 2004 Mr Richard d’Apice received a telephone call from Mr Cario concerning a Toyota Echo motor vehicle purchased from Sydney City Toyota in December 2003. His file note of that telephone call records Mr Cario telling him that:

“ Mrs A has just had drama with motor vehicle of carer.
Carer came to Mrs A with repair bill for $4,000 for motor vehicle and asked her to pay half.
Mrs A asked for receipt. Carer said could not get receipt.
Carer talked her into buying new car. This bought. No receipt produced for $18,000 ...
Registered car in name Galina and not name IA. ... Car paid for by IA and to belong to IA. Regn can be transferred. ”

Mr d’Apice’s file note also records Mr Cario’s telling Mr d’Apice that:

“ Carer said ‘you’ve got to go. It’s either me or you’. ‘I am not a worker, I am her friend.’ ‘ You and Ian Wallace have got to go’.”

26 There is no dispute that the money for the purchase of the Toyota motor vehicle in December 2003 was provided by Mrs Abraham. The car was registered in Mrs Gutkovich’s name. Mrs Gutkovich gave evidence that for the preceding 10 years she had driven Mrs Abraham in her car to various appointments, shopping and outings. Her car broke down in about December 2003 and she was told that it was not worth being repaired. She denied that she asked Mrs Abraham to contribute to the cost of repairs. Mrs Gutkovich deposed that when she told Mrs Abraham about the problem with the car, Mrs Abraham said words to the effect of “Don’t worry. We have been using your car for all these years. I will buy you a car as a gift.” She deposed that on 27 December 2003 she and her daughter, Diana Gutkovich, and her son-in-law Adel Lekrari, went to Sydney City Toyota and looked for a car. She says that Mrs Abraham said to her words to the effect of “Look around and choose a car you like”. She said that Mrs Abraham sat down because she was frail and did not want to look around. She says that she chose one of the cheapest cars in the market, being the Toyota Echo. Mrs Abraham paid a deposit of $500. Mrs Gutkovich deposed as follows:

“ The salesman who filled out all the documentation asked whose name the car should be registered in and Irene said words to the effect of: ‘Galina Gutkovich, it’s her car’.”

27 According to Mrs Gutkovich, Diana Gutkovich, Adel Lekrari and the salesperson all heard Mrs Abraham say those words. She said that it was on the basis of that expressed wish by Mrs Abraham that the car was registered in her name and that the compulsory third party personal injury insurance and certificate of registration was paid for by Mrs Abraham. Neither Diana Gutkovich, Adel Lekrari nor the salesperson at Toyota corroborated this evidence. I deal with this evidence at [111]-[116] below.

28 I infer that Mr d’Apice had also spoken with Mr Wallace. Although Mr Wallace did not give evidence, it was not disputed that he had expressed concerns about irregularities in payments made to Mrs Gutkovich. In particular, he was concerned that moneys paid to Mrs Gutkovich for her services as carer were not being declared as wages, but were being treated as cash gifts. PAYG deductions were not being made.

29 Mr Richard d’Apice attended on Mrs Abraham on the morning of 13 January 2004 at her home and had a conference with her and Mrs Gutkovich. At that meeting he gained the impression that Mrs Gutkovich was exercising a fairly controlling influence over Mrs Abraham that went beyond a normal carer/client level of influence. Following the conference Mr d’Apice wrote a letter of advice to Mrs Abraham dated 15 January 2004. He wrote:

“ I write to follow up our lengthy meeting on the morning of 13 January at your apartment with Galina Gutovich .
I confirm the advice that I then gave that:
1 Galina is an employee for taxation, holiday, long service, superannuation and workers compensation purposes. Her close personal friendship with you does not alter this position and it is essential that you comply with your obligations under the law. Ian Wallace is doing this on your behalf and that must continue.
2 It is inappropriate that Galina is your guardian. Conflict has arisen between Galina and Arthur Cario who has also been appointed as your guardian. I confirm that I recommended to your that both the appointment of Arthur and the appointment of Galina be revoked and suggest that you should appoint someone independent of your day to day life (such as Bill d’Apice who already holds your Power of Attorney) to be your guardian. Please let me know if you want me to prepare that document and revoke the earlier Appointments of Guardian.
3 It is important that Jewish Aged Care or some other independent body exercise some supervisory function to ensure that, in your vulnerable state, you are not put under any improper pressure. It is important for your well being and future welfare and the further provision of care and assistance by Galina that there be no opportunity for anyone to suggest that you are being taken advantage of in some way.
4 Payments made by you to Galina or for her benefit should all be recorded. All of these payments are regarded by the Taxation Department as being wages and the proper tax must be paid in respect of all of them. It is better that you pay Galina a regular weekly amount and that you not make periodic gifts to her because the existence of those gifts may lead independent bodies such as the Guardianship Board to form the view that, in your vulnerable state, Galina is taking advantage of you.
5 It is important that the conflict between Galina and Arthur be resolved. It is also important that you continue to see Arthur and all of your friends and obtain their support and assistance. It is also important that occasions of conflict between Galina and Arthur be avoided. For this reason I suggest that Galina should not be present when Arthur visits you each Friday.
6 It is very important that Galina not create the impression that she is threatening you or putting pressure on you when she speaks of ceasing to provide you with assistance if her wishes are not followed.
7 I confirm that Ian Wallace and I should come and visit you as soon as he returns to work and that we should discuss these matters openly with you in the absence of Galina. Once you have read this letter would you please telephone me to make an appointment for Ian Wallace and myself to visit you.

8 You have agreed that I should discuss these various matters with Galina and her accountant and a friend of hers in the aged care field so that everyone understands the concerns and issues which might arise in the future and so that we are able to avoid anything which might disturb your life at home.”

30 This was sound advice. By this time or Mrs Gutkovich had retained a solicitor, Mr John Bush of Turtons Lawyers. Mrs Gutkovich said that Mrs Abraham retained Mr Bush, but I do not accept that evidence. Mr d’Apice understood that Mr Bush had been retained by Mrs Gutkovich. On 9 March 2004 Mr Bush told Mrs Gabai that Mrs Gutkovich was his client. It emerged in cross-examination of Mrs Gutkovich that Mr Bush’s memorandum of costs was addressed to her, although paid for by Mrs Abraham.

31 Mr d’Apice met with Mrs Abraham again on 21 January 2004 with Mr Wallace. It appears from his file note that Mrs Gutkovich asked whether she could stay and he replied that it was better if she did not. She said “I think I can stay because I am guardian.” Mr d’Apice asked her to leave which she refused to do. She said “What you are doing is not legal”. Eventually Mrs Gutkovich did leave the room, but went to the second bedroom and refused to leave the unit unless Mr Bush said to do so. Mr d’Apice spoke to Mr Bush who said it was hard for him to advise without further briefing. Later Mrs Gutkovich spoke to Mr Bush herself and agreed to leave. Mr d’Apice explained his letter of 15 January 2004 to Mrs Abraham. It appears from his file note that Mrs Abraham said in response to the first numbered paragraph of the letter of 15 January 2004 that Mrs Gutkovic was not a worker. Mr Wallace and Mr d’Apice advised that by law she was considered to be a worker and needed to make tax payments. Mrs Abraham apparently said that she was happy to pay tax. Mr d’Apice also referred to s 6B(2) of the Guardianship Act 1987 (NSW) to explain his advice that it was inappropriate that Mrs Gutkovich be Mrs Abraham’s guardian. (That section provides that a person is not eligible to be appointed to be as an enduring guardian if the person, in a professional or administrative capacity, provides services to support the person in his or her activities of daily living.) Mrs Abraham apparently responded “Why not?”. No decision was made immediately. Mrs Abraham said that she wanted to revoke the guardianship in favour of Mr Cario and had no-one else. Mr Richard d’Apice suggested Mr William d’Apice as a possibility. It was agreed that Mr Wallace was to pay proper tax and to make proper returns to the taxation department.

32 On 11 February 2004 Mr d’Apice sent to Mrs Abraham a memorandum of costs and disbursements for work, including this work. On 11 March 2004 Mrs Abraham wrote on the covering letter a note saying “I will not be paying this bill. I have not requested for any of this to be done.”

33 On 26 January 2004 Mrs Abraham and Mrs Gutkovich visited Mrs Marsden’s house in Rose Bay for morning tea. Mrs Marsden’s uncle, Mr Ivor Ellis, was also present. Mrs Marsden had known Mrs Abraham all her life. Her parents had been close friends of Mrs Abraham. Mr Ellis had known Mrs Abraham for over 50 years. Mrs Marsden gave evidence that at that time Mrs Abraham said words to the effect “I have bought myself a new car – a black Toyota Echo for $18,500” and “You all have to come outside to see my new car”. According to Mrs Marsden, during the inspection, Mrs Abraham said words to the effect “Galina suggested that I buy a white car but I wanted black as it is my car”.

34 According to Mrs Marsden, Mrs Gutkovich then said “The car salesman asked me ‘Who is the driver?’ and I said ‘I am’. The car salesman put the car in my name as I am the driver.” Mrs Marsden said that that was not right, but Mrs Gutkovich said “It makes no difference as I am not going anywhere.”

35 Mrs Gutkovich denied this conversation. I do not accept that a conversation in these terms took place. Mrs Marsden’s credit was shaken somewhat by a submission she made to the Guardianship Tribunal in which she asserted as facts allegations she then made against Mrs Gutkovich about which she had no personal knowledge. Moreover, Mr Ellis did not corroborate Mrs Marsden’s evidence that a conversation to this effect took place. Mr Ellis did confirm that when he was at Mrs Marsden’s home and Mrs Abraham and Mrs Gutkovich arrived in a new motor vehicle, Mrs Abraham said “Yes I bought a new car”. I accept Mr Ellis’ evidence.

36 In the period between 30 March and 14 April 2004 Mrs Gabai was informed by Dr Beveridge that it was difficult for ACAT to get entry to assess Mrs Abraham. Mrs Gabai spoke to Mr d’Apice on the question of whether proceedings should be started in the Tribunal for guardianship orders so that ACAT could then be called in to do an assessment. Her file note records that “William felt that this was inappropriate because he does not feel that Mrs Abrahams is at risk. He said that his firm has power of attorney over her affairs.” Her note records that “William is no longer concerned about her financial affairs as her accountant has taken control of this and has sorted out any issues of concern.” Mrs Gabai’s file note for a period from 14 April to 28 April 2004 records her being told by Mr Ian Wallace that Mrs Abraham’s financial situation had stabilised in that Mrs Gutkovich was now paying tax.

37 Mrs Gabai remained in contact with Mr Wallace and Mr Cario. She also contacted the Waverley Aged Care Assessment Team to seek to have them make an assessment of Mrs Abraham’s cognitive ability. On 11 March 2004, a Ms Colleen O’Neil of ACAT suggested that Mrs Gabai contact Dr Aristoff, Mrs Abraham’s general practitioner, and organise a geriatric assessment. On 19 March 2004 Dr Aristoff provided a referral to a Dr Beveridge, a regional geriatrician. It appears that Dr Beveridge was associated with ACAT. Dr Aristoff said that Mrs Abraham required a home assessment and “there is a strong possibility of dementia”.

38 On 4 May 2004 at the prompting of Mrs Gutkovich, Mrs Abraham signed a Form of Appointment of Guardian and a general power of attorney in favour of Mrs Marsden and Mr Ellis. This arose because Mrs Gutkovich told Mrs Marsden and Mr Ellis that Mrs Abraham‘s then guardians were about to have Mrs Abraham assessed, taken away from her home and put in a nursing home. Mr Ellis and Mrs Marsden then had a good relationship with Mrs Gutkovich and accepted this statement. Mrs Gutkovich asked Mr Ellis and Mrs Marsden urgently to request a solicitor to go to Mrs Abraham’s home. She said that Mrs Abraham wanted to change her guardians and attorneys, and also wanted to make a new will. As a result of that request, Mr Ellis arranged for his solicitor, Mr Karam Ramrakha, to visit Mrs Abraham to take instructions for the appointment of new guardians and attorneys, and to take instructions on a new will.

39 Mrs Marsden gave evidence that she told Mrs Gutkovich that Mrs Abraham should be prepared for a meeting with a lawyer and should have her thoughts clearly down on paper. According to Mrs Marsden, Mrs Gutkovich said “Could you write something for me because my English is not perfect?”. According to Mrs Marsden she agreed to do that and Mrs Gutkovich then dictated instructions for Mrs Abraham to give to the solicitor.

40 Mrs Abraham prepared a note in her own writing dated 4 May 2004 which she signed, which stated:

“ I want to cancel Galina and Arthur being my guardians and give this power to Anne Marsden and Ivor Ellis.

I want to cancel power of attorney of Bill d’Apice and give it to Anne and Ivor. Power of business to Anne.

I wish to stay to the end of my life in my flat with Galina looking after me as my companion. ”

41 Mrs Marsden gave evidence that those words were very close to the words dictated by Mrs Gutkovich which she wrote down and gave to Mrs Gutkovich. Although I have reservations about Mrs Marsden’s credibility, I accept that evidence.

42 Whilst Mrs Gutkovich’s suspicions that Mr Cario and others were planning to bring in a specialist to assess Mrs Abraham’s mental capacity were well founded, there is no evidence that anyone proposed that Mrs Abraham be moved to a nursing home. Nonetheless, it is clear that Mrs Gutkovich conveyed to Mrs Abraham (as well as to Mrs Marsden and Mr Ellis) that there was such a threat.

43 Mr Ramrakha attended on Mrs Abraham on 4 May 2004. Mrs Abraham signed a Form of Appointment of Guardian appointing Mr Ellis and Mrs Marsden as her guardians if, because of disability, she was partially or totally incapable of managing her person. The terms of the appointment expressly authorised her guardians to employ or dismiss carers. Prior appointments were not revoked. Mrs Abraham also executed a general power of attorney in favour of Mr Ellis and Mrs Marsden. At the same time, Mrs Abraham made her new will adding the Darling Point unit to the gift to Mrs Gutkovich.

44 Following the appointment of Mrs Marsden and Mr Ellis as guardians and attorneys and the making of the new will, matters gathered pace. On 13 May 2004 Mr Richard d’Apice telephoned Mrs Gabai. He told her that on the previous day, he, Mr Cario and a person liaising with the managing agent of the block of units owned by Mrs Abraham had received letters dismissing their services. Mr d’Apice received a letter from Mr Ramrakha stating that Mrs Abraham had appointed new guardians and had executed new powers of attorney. Mr Wallace advised that he attended a scheduled meeting with Mrs Abraham and was informed that his services would still be required, but that he had arranged for a meeting with the new guardians and attorneys, but the meeting did not take place. Mr Wallace and Mr d’Apice expressed concern about Mrs Abraham’s welfare. On 13 May 2004 Mrs Gabai again referred Mrs Abraham to the Waverley Aged Care Assessment Team and expressed concern that she was at risk of exploitation.

45 On 24 May 2004 Mrs Gabai applied to the Guardianship Tribunal for the appointment of a guardian and a financial manager for Mrs Abraham. In her application she stated that Mrs Abraham was allegedly at risk of financial abuse and said that all contact with Mrs Abraham was being prevented by the carer. She noted that Mrs Abraham had not been assessed by a psycho-geriatrician.

46 The Guardianship Tribunal convened a hearing on 4 June 2004. It appears from the reasons for decision of the Tribunal of 4 June 2004 (also tendered by the defendant in the documents produced by JewishCare) that at the hearing on that day:

“ Mr Wallace said that because of no ABN being provided to the ATO Mrs Abrahams [sic] had been required to pay tax at the highest rate on the payments made to Mrs Gutnavich [sic] . In the last twelve months payments made to Mrs Gutnavich together with tax remitted totalled $161,550.00 of which almost half was taxed .”

47 The Tribunal added:

“ Mrs Gutnavich [sic] has apparently always disputed that she is an ‘employee’. ...
Mrs Abrahams [sic] clearly had no idea of what she was paying Mrs Gutnavich. When asked specifically she said words to the effect ‘I don’t know I have lost my memory.’
When pressed she looked to Mrs Gutnavich for assistance. She then said words to the effect:
‘I give her a bit of money. Probably about $100 or $150 per week or per fortnight. I give her a cheque.’
When Mrs Gutnavich urged her to reconsider what she in fact gave her Mrs Abrahams said words to the effect:
‘I give her a little more, once a week or once every two weeks.’
Mrs Abrahams’ responses were clearly not the reality. When asked whether she understood that she was being disadvantaged because of the tax payments Mrs Abrahams made no specific response but said words to the effect that she knew she had to pay tax. ”

48 In her later submission to the Guardianship Tribunal dated 21 June 2004 Mrs Gutkovich stated:

“ In relation to financial abuse and exploitation I would like to advise that the accountant and Arthur Cario who are very involved in Irene’s finances, were aware at all times how much I was getting for my efforts. For many years I was getting $700. Only in the last year when Irene required much more care and I was spending 14-24 hours did I begin to receive more money. ”

49 Notwithstanding this submission, in evidence before me Mrs Gutkovich denied that she began to receive more as a consequence of having to provide more care for Mrs Abraham of up to 14 to 24 hours per day (T128). She said that the statement in her submission to the Tribunal was incorrect. She said that when she started working for Mrs Abraham in 1994 she was given $30 or $25 and was paid the same amount each week thereafter (T121). I do not accept that evidence. It reflects seriously on Mrs Gutkovich’s credit.

50 The Tribunal directed that Mrs Abraham be assessed by qualified professionals as to her condition generally, and specifically as to her cognitive capacity to make lifestyle decisions, as opposed to merely expressing preferences. It stood over the application for the appointment of a guardian for three months. The Tribunal observed that on the basis of Mrs Abraham’s presentation at the hearing, it had grave reservations about her capability to manage her finances and indeed about her testamentary capacity. The Tribunal observed that at the hearing Mrs Abraham showed little recollection of signing documents in May. It committed her financial affairs to the Protective Commissioner for an interim period of three months pending further consideration of her capability to manage her financial affairs.

51 The Tribunal reconvened on 15 July 2004. Neither Dr Wallace nor Mrs Abraham appeared at the second hearing. The Tribunal made the orders referred to at para [4] above.

52 From about mid-May to mid-June 2004 Mr Ellis reviewed Mrs Abraham’s financial documents including her bank statements and observed that large sums were being withdrawn from her accounts via her cheque book made payable to “Cash”. Mr Wallace sent Mr Ellis financial statements showing Mrs Abraham’s income and expenditure for the 2004 financial year. Mr Ellis concluded that the withdrawals from Mrs Abraham’s accounts were several times in excess of her net annual income. By about June 2004 he and Mrs Marsden agreed that Mrs Gutkovich’s employment with Mrs Abraham should be terminated. They, and I infer Mr Cario, only had power so to act if Mrs Abraham had become partially or totally incapable of managing her person.

53 Arrangements were made for Mrs Abraham to be seen by Dr Mark Wallace (no relation to Mr Ian Wallace), a psycho-geriatrician. Dr Aristoff provided the referral. The referral had been required by the Tribunal. It was also sought by the guardians (Mr Cario, Mr Ellis and Mrs Marsden).

54 Dr Wallace met Mrs Abraham on 16 June 2004. Mrs Gabai drove Mrs Abraham to Dr Wallace’s rooms. She was accompanied by Mrs Marsden. It is clear from Mrs Gabai’s file note of 16 June 2004 and subsequent submissions to the Tribunal that there was a confrontation with Mrs Gutkovich. It appears that Mrs Gabai arrived at 12.15pm to fetch Mrs Abraham for the appointment. According to Mrs Gutkovich, Mrs Abraham had had an early lunch and had dozed off. It is clear that she was sleepy and Mrs Gabai asked her whether she had taken anything to sleep. This caused a confrontation because Mrs Gutkovich took this as an accusation that she had given Mrs Abraham a sleeping tablet. According to Mrs Gutkovich, Mrs Abraham insisted that she would only go if Mrs Gutkovich came with her. When they went to the car Mrs Abraham was assisted into the front seat. Mrs Marsden was seated in the back. Mrs Gutkovich found that she could not get into the car. Mrs Gabai told Mrs Gutkovich that it was the doctor’s wish to see Mrs Abraham alone. (She said that she had been told by Dr Wallace that it was better that the carer not attend to allow an objective assessment to occur). According to Mrs Gabai, Mrs Gutkovich shouted and was aggressive and for a time prevented Mrs Gabai from getting into the car. Whatever the details, it was clearly a distressing incident. Mrs Gutkovich herself said that at this stage Mrs Abraham was upset and was screaming and crying “Galina, Galina”. This incident could have done nothing to reduce the stress which Mrs Abraham may in any event have felt at being required to be examined by a geriatric specialist.

55 Dr Wallace kept detailed notes of his consultation. He recorded Mrs Abraham’s explaining the reason for her visit as being “to find out whether I can remember and concentrate”. She gave her address and details of her marriage with her husband. She could not say where she was living during World War 2 and had little recall of World War 2. She knew her age, her father’s occupation and her place of birth and upbringing (Hong Kong). She described her general activities and interests. She correctly told Dr Wallace that she had cousins in London and no children. She described her previous interests, including tennis, bridge and cooking. She said that she watched television and the news. She identified what channels she watched, but could not give details of programs she watched. She said that her carer, Galina, cooked meals, cleaned, made her bed and assisted her to dress and had been with her for eleven or twelve years. She said that her memory was not quite what it had been and that she forgot some things and people’s surnames. She said of her finances that she did it herself mostly, but had an accountant, Mr Ian Wallace whom she had changed. She was reluctant to discuss “antagonism”. She was asked about her assets. Dr Wallace’s file note reads:

“ Flats Maroubra ‘quite a number’. ‘Some of them are empty’. Non-specific about income from these.

No pension/superannuation.

No shares.

Struggled to recall name of bank “can’t remember now”.

Unsure of account specifics.

Cued → Chq ✓ Savings ✓

No credit card

No investments

Owns a car and believes she has it in her name. ‘I don’t drive it ... Galina does’.

‘Japanese ... a Toyota I think. ”

56 Dr Wallace did four cognition tests known as the Mini Mental State Examination (MMSE), the Modified Mini Mental State Examination (MMMSE), Clock Construction and ADAS-Cog. He recorded that Mrs Abraham scored 19 out of 30 for the MMSE (in fact she scored 20; Dr Wallace made an arithmetical error in adding up the scores); 63 out of 100 for the MMMSE, 8 out of 10 for the Clock Construction Test and 25 out of 70 for the ADAS-Cog test. (For the latter test the lower the score, the higher the patient’s cognition.) Each of these tests was a diagnostic tool and not in any sense determinative of Dr Wallace’s ultimate opinion as to Mrs Abraham’s ability to manage her own affairs.

57 On 17 June 2004 Dr Wallace wrote to Mr Richard d’Apice. He said that he would be providing a full report to the Guardianship Board. He advised Mr d’Apice as follows:

” 5. The main finding of my assessment is that Mrs Abraham is suffering from an Alzheimer’s type of dementia and this is at a stage now where her capacity to reason and make appropriate decisions for herself is being compromised.
6. The competency now evident is such that the ability to change a power of attorney can no longer be reasonably presumed to exist and will not have been present for a period of at least a year.
7. I am of the opinion that given the above that Mrs Abraham was not competent to make the Power of Attorney application made on 4 May 2004 to supersede the order made by her on 24 January 2002.
8. Given the above points it is my opinion that the conditions for the activation of the Power of Attorney appointment would now be reasonably been seen to be in force. ”

58 Dr Wallace’s statement in paragraph 6 that it could not be presumed that Mrs Abraham was able to change a power of attorney was not explored in the evidence of any witness. However, it appears from the documents produced by JewishCare that by about March 2004 Mrs Gabai was concerned that Mrs Gutkovich might procure a change in the power of attorney in her favour. I infer that a question had been raised as to whether Mrs Abraham would have the capacity to make a further change to the power of attorney.

59 On the following day, Mrs Gutkovich’s services as carer were terminated. Armed with Dr Wallace’s opinion as to Mrs Abraham’s capacity which supported the view that the instruments of appointment of guardians were then operative, the three persons who had been appointed as guardian by Mrs Abraham, namely Mr Cario, Mrs Marsden and Mr Ellis, signed a letter prepared by Mr d’Apice requesting Mrs Gutkovich to leave Mrs Abraham’s apartment forthwith and not return except at the guardians’ specific invitation. The letter threatened that application would be made for an apprehended violence order from the Local Court if Mrs Gutkovich did not act in accordance with the request. Under protest Mrs Gutkovich did act in accordance with that request. She did not see Mrs Abraham again.

60 On 30 June 2004 Dr Wallace submitted his report of his consultation with Mrs Abraham on 16 June 2004 to the Guardianship Tribunal. After describing in considerable detail his consultation with Mrs Abraham, he said “Cognition was moderately impaired in all spheres with deficits in short-term and immediate recall, registration, temporal and spatial orientation”. Dr Wallace summarised his opinion and conclusion as follows:

“ Opinion
1. Mrs Abraham suffers from a Dementia of probable Alzheimer’s type that is not complicated by behavioural or psychological symptoms.
2. Mrs Abraham is able to live in her unit safely with the care of another fully able and professional individual in the absence of family.
3. The dementia is presently at level of moderate severity and has likely been progressing over a period of at least 5 years. This condition will continue to progress without treatment.
4. There are no other medical or psychiatric illnesses that could account for the current clinical findings.
5. Mrs Abraham has very little functional comprehension of the extent of her assets and how they are managed. She has been increasingly dependent on others to assist her in such matters, and is now fully dependent.
6. Mrs Abraham does present as a trusting person, and would be vulnerable to being taken advantage of in her current state. This is unlikely to change at any point in the future. She is therefore at risk of elder abuse.
Conclusion:
1. Mrs Abraham is not competent to administer her own affairs and should have a Financial Manager appointed to provide these functions for her. She is well able to express opinions when presented with appropriate advice and should be expected presently to be able to provide instruction to those nominated.
2. As she is presently able and happy to reside in her unit there is no immediate need for a Welfare Guardian in this sense. However it would be reasonable to [sic] for one to be appointed as Mrs Abraham is not competent to make future decisions for medical or other treatment and is likely to require this assistance.
3. Whilst I am aware of the allegations of financial elder abuse regarding Mrs Abraham I have no evidence regarding the facts of this matter and have at no point met the individual in question. ”

61 In cross-examination concerning his opinion stated in paragraph 5 quoted above, Dr Wallace distinguished between a structural comprehension and a functional comprehension of Mrs Abraham about the extent of her assets and how they were managed. He said that Mrs Abraham was unable to give details about income and would need assistance to function, that is, to manage, those assets in a reasonable fashion (T181). His finding that Mrs Abraham had very little functional comprehension of the extent of her assets should not be understood as an opinion that she was unable to understand the broad nature or extent of her assets.

62 JewishCare provided carers to take the place of Mrs Gutkovich. Mrs Gabai’s file note of a visit to Mrs Abraham’s home on 30 June 2004 states the following:

“ Home Visit to Mrs Abraham’s together with Ruth Samer (Coordinator Carer Placement Program)
Mrs Abrahams [sic] was with her carer Sophie
She was sitting in her chair fully dressed
She was friendly and happy to see us.
Mrs Abrahams, when asked how she is, said she was fine and everything was ok with her. She appeared to feel free to talk and was not constrained as in previous contacts when in Galena’s [sic] presence.
I raised the issue of Galena in the presence of Ruth Samer and Sophie. I asked whether she was missing her. She said emphatically no. She said, when asked if she would like to see her again, that it was unnecessary, and that she did not want to see her again. She also stated that she did not want her back. When asked why, she said Galena was greedy with money. Irene repeatedly said she wants her car back; that Galena had taken it, and she wanted it back.
Mrs Abrahams appeared relaxed and content. She offered me coffee and insisted I have some. She was also very open to us visiting again. ”

63 On 29 June 2004 Mr Richard d’Apice had made an appointment to visit Mrs Abraham on Thursday 1 July 2004 in relation to Mrs Abraham’s motor vehicle and updating her will. Mr d’Apice instigated the making of that appointment. He gave evidence of the meeting in detail as follows:

“ 20. At approximately 4:45pm on 1 July 2004, I attended upon Mrs Abraham at her home. Upon my arrival, we had a discussion in which words to the following effect were said:

Rd’A: ‘I have come to see you about your Will as you requested’.

IA: ‘Yes. I want to change my Will’.
21. I then showed Mrs Abraham the Wills she had previously made on 9 September 2003 ( September 2003 Will ) and 10 May 2004 ( May 2004 Will ). Copies of those Wills are annexed to my first affidavit and marked ‘A’ and ‘B’ respectively. Mrs Abraham said to me words to the following effect:
‘I can’t read them now. It is too dark. What does this one say?’
Mrs Abraham indicated to the May 2004 Will which I then read aloud to her.
22. Mrs Abraham and I then discussed who would be appointed as executors of her new Will. We had a conversation in which words to the following effect were said:

IA: ‘No Galina’.

Rd’A: ‘What about Karam Chand Ramrakha?’

IA: ‘Who is he?’

Rd’A: ‘The executors of your Will dated 9 September 2003 are Galina Gutkovich and my partner, Bill d’Apice’.

IA: ‘No. I don’t want Galina anymore. I can’t put your name in it?’

Rd’A : ‘Yes, if you want?’

IA: ‘Yes I do’.

Rd’A: ‘Would you like Anne Marsden as the second executor?’

IA: ‘Yes’.
23. I then read clause 3 of the May 2004 Will to Mrs Abraham. After I had read that clause to Mrs Abraham, she said to me words to the effect:
‘No, turn it off. Nothing for her. I want my car back from her. She stole my car. Can you get it back?’
Mrs Abraham often spoke to me in short, sharp phrases. I then read clause 4 of the May 2004 Will to Mrs Abraham. In response to that clause, Mrs Abraham said to me words to the following effect:
‘No. Cross it all out. Nothing for her or her husband or her children. Turn it out. Nothing to do with them at all. I don’t want her name in it at all”.
24. Clauses 3 and 4 of the May 2004 Will deal with Mrs Abraham’s specific bequests to the defendant (clause 3) and to various members of the defendant’s family (clause 4). I understood Mrs Abraham’s comments in relation to clauses 3 and 4 of the May 2004 Will to be references to the defendant and her family. Those comments were expressed by Mrs Abraham immediately after I read each clause of the May 2004 Will to her.
25. Mrs Abraham and I then discussed further bequests made pursuant to the December 2003 Will to Arthur Cario and Elias Duek Cohn. Mrs Abraham and I had a conversation in which words to the following effect were said:

Rd’A: ‘In your old Will, you left Arthur Cario this unit and $500,000.00’.

IA: ‘No, that ‘s too much. This unit – yes but I don’t have that much money. Maybe $100,000.00’.

Rd’A: ‘You left Elias Duek Cohn $100,000.00’.

IA: ‘Too much. $10,000.00 maybe. After my death, my money goes to these people as I put in my Will’.

Rd’A : ‘Do you understand what assets you own?’

IA: ‘Not exactly. I’ve got some units in Maroubra, shares, money and this unit’.
26. Mrs Abraham and I then discussed whether she was aware of anyone who might expect to receive a benefit under her Will. Mrs Abraham and I had a conversation in which words to the following effect were said:

Rd’A: ‘Is there anyone with a proper expectation to receive a benefit under your Will?’

IA: ‘I don’t think there is anyone with an expectation. I am all alone. I don’t have any relatives, only those two cousins in London’.

Rd’A: ‘What about Arthur Cario?’

IA: ‘Have I done enough? I have known him for years, and his mother’.

Rd’A : ‘You have left him the unit and $100,000.00’.

IA: ‘Yes, that’s enough’.
27. During the course of this conversation, Mrs Abraham also said to me words to the following effect:
‘I am not giving Galina anything. She worked for me. She made me feel sorry and I gave her money and I shouldn’t have done so, I know. She made me feel sorry for her. I don’t want to see her again. She was working for me and she is a thief. She took my car. I want you to get it back.’
28. We then discussed the defendant’s benefit under the May 2004 Will. Mrs Abraham said to me words to the following effect:
‘I left it to her because she worked for me and I thought she was good. But she turned out to be a thief. She took money from me and she took my car.’
29. Mrs Abraham and I then had a conversation in which words to the following effect were said:

Rd’A: ‘You don’t miss Galina?’

IA: ‘No, no. I don’t want to see her anymore. The ladies caring for me now are good. I am being well looked after.

Rd’A : Did Galina put pressure on you to make a Will?’

IA : ‘Perhaps she did a bit. She always wanted money. She said she needed it all the time and I gave it to her because I felt sorry for her and thought she needed it. I didn’t know she would be such a thief and that she would take my car’.

Rd’A: ‘I want you to understand that Anne, Ivor, Arthur and I terminated Galina’s employment’.

IA : ‘That’s very good’.

Rd’A : ‘I need to see you with your doctor to make sure you have the capacity to make a new Will’.

IA : ‘Yes, that’s good.’

Rd’A : ‘At 2.30 pm on Wednesday of next week you will go to see a geriatric doctor.’
30. I left Mrs Abraham’s apartment at approximately 5.15 pm.”

64 Mr d’Apice kept a detailed contemporaneous file note from which his affidavit was prepared. I accept all of Mr d’Apice’s evidence including that set out above. He kept good file notes of his discussions with Mrs Abraham. His evidence under cross-examination was responsive and careful.

65 Mr d’Apice readily accepted that at this time, warning bells rang in his mind as to whether Mrs Abraham had the capacity to do anything in respect of her testamentary intentions. He said, and I accept, that Mrs Abraham wanted to give him instructions and he thought it was his duty to attend on her at her request to take them. He had no confidence that he would be able to satisfy himself that she had capacity. Despite the detail of the instructions received he was not confident that she had testamentary capacity. He of course knew of Dr Wallace’s diagnosis of Alzheimer’s dementia and lack of capacity to appoint an attorney under power. He knew of Dr Wallace’s opinion that Mrs Abraham’s capacity to reason and make appropriate decisions for herself was being compromised. Mr d’Apice said that he was clearly dealing with a frail old woman whom he knew to be in her early 90s. He did not have sufficient confidence in his own ability to make an assessment of her testamentary capacity, especially when she had attended upon a psycho-geriatrician.

66 Accordingly Mr d’Apice and Mrs Abraham attended on Dr Wallace in his rooms on 7 July 2004. Dr Wallace was not then prepared to commit himself to a view as to whether Mrs Abraham then had testamentary capacity. He expressed the view that on the balance of probabilities, Mrs Abraham would have had testamentary capacity on 9 September 2003 and said that the will of that date was probably valid. He said that the will of 10 May 2004 would not be valid. He could not say whether Mrs Abraham then had testamentary capacity, but this might change after further consultations. The reason for this was that he wished to see whether Mrs Abraham’s views remained consistent.

67 Notwithstanding that Dr Wallace was not prepared to commit himself, Mr d’Apice prepared two handwritten codicils (one for the will of 9 September 2003 and the other for the will of 10 May 2004) for Mrs Abraham to revoke the benefits passing to Mrs Gutkovich under those wills. Mrs Abraham said that she understood that the effect of signing the revocations would be to remove Mrs Gutkovich from her will and she signed them. Her signature was duly attested. A full note of the events is recorded in Mr d’Apice’s file note of 7 July 2004 which he prepared on return to his office. It reads as follows:

“ I advised Dr Wallace in Mrs Abraham’s presence that my purpose in attending this consultation was because Mrs Abraham had expressed to me the desire to make a new will and that I wished to have his views as to testamentary capacity.
Dr Wallace said words to the effect:
‘In a Court of law the 10 ^th May 20004 will would not be valid. On the balance of probabilities Mrs Abraham would have had testamentary capacity on 9 September 2003 and the will made on that date is probably valid.
‘I cannot say that she has testamentary capacity now but this may change after further consultations.’
I said to Mrs Abraham, ‘I am here because you wanted me to make a will for you’ to which she replied words to the effect, ‘Yes, I want Gallina [sic] out. Nothing for Gallina. She’s a thief. She stole my car.’
Dr Wallace told me that this was the first occasion that she had expressed herself on this subject to him and he would prefer to wait for a further consultation to see whether her views on that subject remained consistent.
I advised him that the will dated 10 May 2004 left very significant benefits to Gallina Gutkovich and that the will dated 9 September 2003 left some benefits to Gallina Gutkovich.
I asked him whether he was of the opinion that Mrs Abraham could revoke such benefits as she had given to Gallina under either will. He expressed some concern about this as he had not had the opportunity of seeing her on more than one occasion in which [she] expressed the view that she wished to remove Gallina from her will. He would feel more comfortable as to her capacity to make this change to her will if the view remained consistent at her next visit to him.
I said that she had repeatedly given me the same instructions and I then said that what I proposed to do was to write her wishes on copies of both wills and then ask her if she wished to sign them.
I then wrote on a copy of the will dated 10 May 2004 the words, ‘If this will of which this is a copy is valid, I revoke any benefit which passes to Gallina Gutkovich 7 July 2004’ and I wrote on a copy of the will dated 9 September 2003 the words, ‘I revoke any benefit which under the will (of which this is a copy) to Gallina Gutkovich 7 July 2004’.
I then invited Mrs Abraham to sign the statement on the copy of the will dated 10 May 2004 and asked Dr Wallace whether he would witness that with me. He expressed some concern as to a conflict of interest and wished to remain independent for the purpose of preparing reports for the Guardianship Tribunal. During the course of this discussion Mrs Abraham had signed the will with the higher of the two signatures which appear on the copy.
I then informed Dr Wallace and Mrs Abraham that I would get Anne Marsden, who was sitting outside, to be the second witness and I invited her in.
I then explained to her what Mrs Abraham had told me that she wished to do and I asked her whether she would be a witness to Mrs Abraham signing the documents which she agreed to do.
I then read the note on the will dated 10 May 2004 to Mrs Abraham and I read the note on the will dated 9 September 2003 to Mrs Abraham and I said to her words to the effect, ‘If you sign these two documents it will have the effect of removing Gallina from your will’ and she replied with words to the effect, ‘Yes, that’s what I want’. Mrs Abraham then affixed then [sic] second (lower) signature to the copy of the will dated 10 May 2004 and then signed the copy of the will dated 9 September 2003.
Anne Marsden then signed both documents and I then signed both documents.
Dr Wallace made a note of these occurrences and the consultation finished soon thereafter. ”

68 At this consultation Dr Wallace prescribed an anti-dementia medication called Donepezil which is sold under a trade name Aricept. That medication does not provide a cure for the underlying pathology that causes dementia, but may slow its progress. According to Dr Wallace it can cause, or, in conjunction with other factors contribute to, an improvement in a patient’s cognitive functioning over a period of weeks or months. There was other medical evidence from a geriatric rehabilitation specialist, Professor Frederick Ehrlich, that whilst there can be temporary minor fluctuations in the level of impairment, and that occasionally some specific anti-dementia drugs can to some extent delay the progression of the condition, the literature about the effectiveness of anti-dementia medications does not indicate that significant improvement can occur. According to Professor Ehrlich, slowing the rate of deterioration was about the best that could be expected from use of the drug, and this would usually only be temporary.

69 Dr Wallace saw Mrs Abraham again on 17 November 2004. It was following his report of that consultation that Mrs Abraham came to make her will of 3 December 2004. He also saw Mrs Abraham on four subsequent occasions, namely 2 February 2005, 2 November 2005, 30 November 2005 and 18 January 2006. Dr Wallace said that the treatment for her dementia with Donepezil commencing in July 2004 had shown a response with “reduced confusion and stabilisation of her cognition”.

70 At the consultation of 7 July 2004 Dr Wallace administered a further Mini Mental State Examination to Mrs Abraham. He recorded that she achieved a score of 20 out of 30. Again Dr Wallace made an arithmetical mistake in adding up the score: the score ought to have been 22 out of 30. Dr Wallace also said that he ought to have given a score of five for one particular task for which he gave a score of four. Thus the test could have been scored at 23 out of 30. It is not suggested by anyone that this makes a material difference to Dr Wallace’s assessment of Mrs Abraham on 7 July 2004.

71 Dr Wallace’s notes of the consultation include the following:

“ Emphatically stated that Galina should not benefit from wills of May ‘04 or Jan ‘02. ‘She stole from me and took my car’. Wants Galina removed from Jan ‘02 will. ”

72 The evidence did not disclose that Mrs Abraham had made a will in January 2002 (as distinct from May 2002 and September 2003). However, this apparent discrepancy was not explored in cross-examination. In another note Dr Wallace recorded Mrs Abraham as saying “she stole money and my car from me”.

73 Although Dr Wallace had not been prepared to give an opinion on 7 July 2004 as to Mrs Abraham’s testamentary capacity, he was asked in evidence before me whether, having regard to his subsequent consultations with her, he was now able to express an opinion as to whether on 7 July 2004 she had testamentary capacity. He was asked to assume that for this purpose Mrs Abraham would have testamentary capacity only if she understood the nature and effect of the document that she was being asked to sign at the time, that she understood, at least in general terms, the extent and nature of her assets, that she recognised the persons whom she thought ought to benefit, that is, that she was able to recognise who would be appropriate beneficiaries in the document she was contemplating signing, and was able to weigh the claims of such persons who might have a claim on her bounty. Dr Wallace said that based on his assessment at that date and also subsequent assessments, he did believe that at that date Mrs Abraham was competent to sign the codicil, and had capacity in the terms which had been put to him. (For the reasons below, I doubt that it would be necessary to show that all of the requirements of Banks v Goodfellow (1870) LR 5 QB 549 necessary for a testator to have testamentary capacity for making a will would need to be satisfied for Mrs Abraham to have had capacity to revoke the gifts to Mrs Gutkovich.)

74 Dr Wallace did not write a further letter to the Guardianship Tribunal following his consultation with Mrs Abraham on 7 July 2004, although he knew that a further hearing of the Tribunal was pending. Dr Wallace said in cross-examination that his consultation with Mrs Abraham on 7 July 2004 had caused him to change the opinion which he expressed in his letter to the Tribunal of 30 June 2004. He explained that the reason he did not write a further report to the Tribunal was because he was expecting to be called to give oral evidence, although that did not happen. I accept that evidence. I do not reject Dr Wallace’s evidence in relation to the events of 7 July 2004 on the basis that he did not inform the Guardianship Tribunal of the alteration to his opinion.

75 After her consultation with Dr Wallace on 7 July 2004 and prior to her next consultation with him on 17 November 2004, Mrs Abraham was admitted to hospital in August 2004 as a result of damage to vertebrae in the lumbar region of her spine. She also had an admission for a brief general anaesthetic for a urethral dilation. In a referral by Mrs Abraham’s new general practitioner, Dr Andrew Hardy, he advised Dr Wallace that Mrs Abraham’s carer reported that her cognition had improved when the chemist had erroneously dispensed 10mg rather than 5mg of Aricept, but she felt weak and immobilised.

76 As a result of a request made by Mr Richard d’Apice on 6 August 2004 the Office of the Protective Commissioner gave approval on 19 August 2004 for him to act for Mrs Abraham in relation to the preparation of a new will. On 1 September 2004 Mr d’Apice advised Dr Wallace that he was instructed that Mrs Abraham had again expressed her desire to update her will and for that purpose he again requested Dr Wallace’s advice as to her then testamentary capacity. Partly as a result of this communication and partly because Dr Wallace expected a follow-up consultation, he examined Mrs Abraham again on 17 November 2004. He administered a Mini Mental State Examination. On this occasion Mrs Abraham scored 26 out of 30. Dr Wallace did not conduct any of the other three diagnostic tests which he had carried out on 16 June 2004, notwithstanding that at least one of the purposes of the consultation was for him to give an opinion to Mr d’Apice as to whether or not Mrs Abraham then had testamentary capacity. In contrast to his notes of the consultation on 16 June 2004 Dr Wallace’s notes of the consultation on 17 November 2004 were brief. Relevantly they stated:

“ Recall of seeing me this year. No recall of hospital for back pain. Reports back pain – eased with cushion. Tires easily even with good sleep. Appetite ✓ ’too old ... I’m 94’. Enjoys reading, drives, walks with carers, visits from friends.

Happy with new carers + new will. Considers of possibility of changing in future.

Discussed – nature of estate
- whom she wished to have it or not ... “

77 In his affidavit Dr Wallace gave the following evidence about his consultation of 17 November 2004 and his assessment of Mrs Abraham’s testamentary capacity:

“ 8. On 17 November 2004, I again saw Mrs Abraham. The purpose of the consultation was to carry out a cognitive assessment of Mrs Abraham prior to her making a new Will.
9. On 17 November 2004 Mrs Abraham presented as a pleasant elderly woman who was fully cooperative and appropriate in interaction.
10. I spent a period of approximately 1 hour consulting with Mrs Abraham. As part of my assessment, I asked a number of questions and made general observations that are part of the usual mental state examination on assessing a client, in order to gain an understanding of the client’s various cognitive skills. These questions were designed to elicit Mrs Abraham’s past, present and immediate memory, concentration, attention, insight and abstraction skills.
11. During the consultation I asked open questions to elicit facts in a manner that would not imply or give a sense that any special reply was required.

12. Mrs Abraham was orientated in time and space. She was attentive and able to concentrate on the matters in hand.

13. I noted that, in terms of her cognitive functioning, Mrs Abraham’s answers were salient.

14. I asked a number of questions to elicit her state of mind and as a result I concluded that whilst Mrs Abraham had been unhappy because of difficulties she had had with her previous carer, Galina Gutkovich ( Mrs Gutkovich ), she was no longer dwelling on the matter and had only the limitations on her current lifestyle as a particular concern. She was able to express appropriate answers about her future with reasonable optimism and conversational skills. Mrs Abraham was competent in her abilities to appraise these matters in her life and to form fitting conclusions. There was no evidence of psychosis, mood, anxiety or other major disorder.
15. Mrs Abraham had previously told me she had no children, her husband was deceased and the only surviving relatives were cousins in London. This type of background information is elicited during the initial consultations with a patient.
16. She also previously told me that she owned her unit and had a block of flats at Maroubra as well as other property. Again, this is information I elicited during one of my initial consultations with Mrs Abraham.
17. During the consultation on 17 November 2004, I elicited from Mrs Abraham that she was happy with her new carers and that she also wanted her old Will to be changed. Mrs Abraham appreciated that she had made a prior Will. She also understood that she would need a new Will and she understood the purpose of the new Will. Mrs Abraham exhibited a broad understanding of the nature of her estate. Mrs Abraham was consistent in her view that she did not want Mrs Gutkovich to obtain anything under her Will.
18. Based upon the earlier consultations I had with Mrs Abraham, I considered that Mrs Abraham understood the nature of the consultation with me on 17 November 2004. From this consultation and previous consultations, she demonstrated she had a broad understanding of her assets. My opinion at the time of the consultation was that the process of reviewing her Will would have been a situation where she could reasonably take advice and give an opinion as to her wishes and she understood the effect of making a Will. Mrs Abraham was aware of those who might reasonably be thought to have claims upon her estate. Mrs Abraham was clearly able to express a considered opinion as to how she wished to distribute her assets after her death. Mrs Abraham was very clear in one particular respect concerning her Will – that she did not want Mrs Gutkovich to obtain any benefit under her Will. I was satisfied that Mrs Abraham had testamentary capacity in relation to her Will. ”

78 According to Dr Wallace’s affidavit, information about Mrs Abraham’s relatives and assets had been elicited during his previous consultations with Mrs Abraham (paras 15 and 16). He did not say in his affidavit that he had elicited that information again. His file note states only that he discussed with Mrs Abraham the “nature of estate”. Dr Wallace was unable to say what questions he asked her about that matter or what answers she gave. Dr Wallace said in cross-examination that he asked Mrs Abraham open-ended questions as to what the nature of what her assets were. He did not recall her replies, but said that at the time he noticed that she was able to describe it. His evidence was not wholly satisfactory. Some answers to questions in cross-examination were opaque and not directly responsive. For example, he gave the following evidence:

“ Q. But you can't tell the Court what she said?
A. It is a different consultation in the sense that I've seen her at a different time and I'm also seeing her in the context of having reviewed her previously. My notation therefore reflects that. ”

A direct answer would have been “No, I can’t”. However, this is not a sufficient reason to reject the substance of Dr Wallace’s evidence.

79 Although Dr Wallace was of the view that Mrs Abraham was more “cognitively able” at the consultation on 17 November 2004 his evidence is insufficient to show that at that consultation Mrs Abraham demonstrated a general awareness of the nature of her assets.

80 However, as appears below, when Mrs Abraham was next visited by Mr d’Apice for the purpose of taking instructions on a new will, she did display that understanding.

81 On 17 November 2004 Dr Wallace telephoned Mr d’Apice to report on his consultation with Mrs Abraham. Mr d’Apice’s file note of that conversation reads:

“ Just saw Mrs A. Showing no signs of associated condition. Scoring better on objective tests of memory. She is significantly better. Pain could have been causing problem. If she wants to change things would have no problem with that. Will see her in some months. Will send me a report. Medication is helping. ”

82 Later (on 22 December 2004) Dr Wallace provided his report to Mr d’Apice. He reported:

“ Further to our telephone conversation of 17 November I have been able to review Mrs Abraham in my rooms and find that she has been managing well with the new arrangements at her home. Whilst unhappy that she had the difficulties with her previous carer she no longer wishes to dwell on it and has only the limitations on her current life style as a particular concern.
In terms of her cognitive functioning these observations are salient as they indicate she is more able as noted previously since starting the treatment with specific anti-dementia medication, and she is able to form and express opinions. These therefore support the view that Mrs Abraham can provide meaningful instruction of intent as regards her estate. The process of reviewing her Will is a situation where she could reasonably take advice and give an opinion as to her wishes. This is unlikely to persist, as the condition she suffers with will eventually erode her intellectual capacities. ”

83 Mr d’Apice attended on Mrs Abraham at her home on 23 November 2004. Mr d’Apice gave the following evidence about that attendance which I accept:

“ 40. When I attended upon Mrs Abraham on 23 November 2004, she said to me words to the following effect:
‘I want to make a Will not to give Galina anything but to leave my Estate to family and friends.’
41. Mrs Abraham and I then discussed the nature of her assets. Mrs Abraham described to me the nature of her assets using words to the following effect:
‘I own this apartment, flats in Maroubra, and cash investments. Ian Wallace looks after them and also the Protective Commissioner.’
42. Mrs Abraham and I then discussed the people to whom Mrs Abraham intended to leave her Estate. Mrs Abraham said to me words to the following effect:
‘I have no close relatives, only two cousins in London, Yvonne Melnick and Derek Ezra, no one else. I have no other very close friends. Arthur Cario is a friend. His mother was my good friend. Anne Marsden is a good friend of mine. Ivor Ellis is her uncle. I have known him for some time.’
43. Mrs Abraham then asked me a question using words to the following effect:
‘What does the present Will say?’
44. I then read to Mrs Abraham the May 2004 Will and also the September 2003 Will antiphonally.
45. In response to clause 2 of the September 2003 Will and clause 2 of the May 2004 Will, we briefly discussed Mrs Abraham’s executor. Mrs Abraham said to me words to the following effect:
‘I want Bill d’Apice as my executor’.
46. In response to clause 3 of the September 2003 Will and clauses 3 and 4 of the May 2004 Will, Mrs Abraham said to me words to the following effect:
‘Nothing to Galina.’
47. Thereafter, Mrs Abraham and I discussed the individual bequests which now appear in the December 2004 Will. I again read to Mrs Abraham from the September 2003 Will and the May 2004 Will antiphonally. In response to clauses 4(1) and 4(2) of the September 2003 Will and clauses 5(i) and 5(ii) of the May 2004 Will, Mrs Abraham said to me words to the following effect:
‘Same bequests to Yvonne Melnick and Derek Ezra’.
48. I read to Mrs Abraham separately each of the paragraphs in clause 5 of the September 2003 Will and clause 6 of the May 2004 Will, and we discussed the individual bequests set out in the sub-paragraphs of those clauses.
49. I then read paragraph 5(a) of the September 2003 will and paragraph 6(a) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Shahi Abraham, $5,000.00.’
IA: ‘Yes.’
50. I then read paragraph 5(b) of the September 2003 will and paragraph 6(b) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Unit to Arthur Cario, legacy of $500,000.00.’
IA: ‘Not so much. Maybe $200,000.00.’
51. I then read paragraph 6(c) of the May 2004 Will and we each said words to the following effect:
Rd’A : ‘Anne Marsden, $200,000.00.’
IA: ‘Yes.’
52. I then read paragraph 5(c) of the September 2003 will and paragraph 6(d) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Shephardi Synagogue, $20,000.00.’
IA: ‘Yes.’
53. I then read paragraph 5(d) of the September 2003 will and paragraph 6(e) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Wolper Hospital, $5,000.00.’
IA: ‘Yes.’
54. I then read paragraph 5(e) of the September 2003 will and paragraph 6(f) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘United Israel Appeal, $5,000.00.’
IA: ‘Yes.’
55. I then read paragraph 5(g) of the September 2003 will and paragraph 6(g) of the May 2004 Will and we each said words to the following effect:

Rd’A: ‘Jewish National Fund, $5,000.00.’
IA: ‘Yes.
56. I then read paragraph 5(f) of the September 2003 will and we each said words to the following effect:
Rd’A: ‘Red Cross, $5,000.00.’
IA: ‘Yes.’
57. I then read paragraph 5(h) of the September 2003 will and paragraph 6(h) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Moses Montefiore Hunters Hill, $10,000.00.’
IA: ‘Yes.’

58. I then read paragraph 5(i) of the September 2003 will and paragraph 6(i) of the May 2004 Will and we each said words to the following effect:

Rd’A: ‘Moses Montefiore Woollahra, $10,000.00.’
IA: ‘Yes.’
59. I then read paragraph 5(j) of the September 2003 will and paragraph 6(j) of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘Jewish Joint Communal, $5,000.00.’
IA: ‘Yes.’
60. I then read paragraph 5(k) of the September 2003 will and we each said words to the following effect:
Rd’A: ‘Elias Duek Cohn, $100,000.00.’
IA: ‘$20,000. No, $25,000.00.’
61. I then read paragraph 6 of the September 2003 will and paragraph 7 of the May 2004 Will and we each said words to the following effect:
Rd’A: ‘The residue to Yvonne Melnick and Derek Ezra.’
IA: ‘Yes.’”

84 Mr d’Apice asked Mrs Abraham why she was leaving nothing for Mrs Gutkovich. She replied with words to the effect “She took my car. She was only the driver. I didn’t give it to her. I’ve got no obligation to her. She got enough.”

85 On 20 November 2004 a Dr Raymond Choy attended on Mrs Abraham who was complaining of nausea, dizziness, headaches and being weak. He made a provisional diagnosis of gastroenteritis. It was submitted for Mrs Gutkovich that such an intervening illness may have affected Mrs Abraham’s cognitive ability between the time she saw Dr Wallace on 17 November 2004 and giving instructions to Mr d’Apice on 23 November 2004 or making her will on 3 December 2004. Dr Wallace accepted that an intervening illness could affect her cognitive ability. However he also said that gastroenteritis was a non-specific term and that there were numerous causes for gastroenteritis, that it was an acute illness and noted that whilst typical symptoms of gastroenteritis can be vomiting and diarrhoea, the report of Dr Choy’s attendance on 20 November specified that she was not suffering from either condition.

86 Mrs Abraham did not appear unwell to Mr d’Apice when he saw her on 23 November 2004. She told him that she was tired, but she appeared to him to be bright and alert. She told Mr d’Apice that the hairdresser had been that morning. I do not think that the report of Dr Choy’s attendance on Mrs Abraham on 20 November 2004 has any significance for an assessment of her testamentary capacity at either 23 November 2004 or 3 December 2004.

87 Mr d’Apice prepared a new will for Mrs Abraham following their meeting on 23 November 2004. On 3 December 2004 he again attended upon Mrs Abraham at her home with Ms Cheryl Cade a probate clerk from his office. After preliminary introductions Mr d’Apice had a conversation with Mrs Abraham to the following effect:

“ 66. On 3 December 2004, I attended upon Mrs Abraham at her home at 11C/3 Darling Point Road, Darling Point with Cheryl Cade, a probate clerk from my office, between 3.10 pm and 3.30 pm. During the course of that visit, Mrs Abraham and I had a conversation in which, after preliminary introductions and pleasantries, words to the following effect were said:
Rd’A: ‘We are here for you to make your new Will and I need to ask you some questions to satisfy myself about your capacity to make a Will. Do you know what your assets are?’
IA: ‘Maroubra flats, this flat. Ian Wallace looks after my investments and bank deposits. I get dividends’.
Rd’A: ‘Is anybody financially dependant [sic] on you?’
IA: ‘Nobody is dependent on me. I have some cousins in London, nobody else.’
Rd’A: ‘What about Galina?’
IA: ‘You can cancel that. Nothing at all. I don’t want her anymore.’”

88 Mr d’Apice then read to Mrs Abraham the will that he had prepared. Mr d’Apice deposed to the following conversation. I accept his evidence:

“ 67. ... During the course of that reading, I asked Mrs Abraham questions about the various legacies and bequests contained in the December 2004 Will, along with other testamentary directions and she responded to each of those questions as more particularly set out in paragraphs [68] to [77], below.

68. I then read paragraph 3(a) of the December 2004 Will and we each said words to the following effect:

Rd’A: ‘Yvonne Melnick – jewellery and $50,000.00’.

IA : ‘Yes, she’s my cousin. Yes.’

69. I then read paragraph 3(b) of the December 2004 will and we each said words to the following effect:

Rd’A: ‘Derek Ezra – silver tea set and tray and $25,000.00’.

IA: ‘Yes.’

I did not make a note of that conversation.

70. I then read paragraph 4(a) of the December 2004 Will and we each said words to the following effect:

Rd’A: ‘Shahi Abraham - $5,000.00’.

IA: ‘Yes.’

I did not make a note of that conversation.

71. I then read paragraph 4(b) of the December 2004 will and we each said words to the following effect:

Rd’A: ‘Arthur gets this flat.’

IA: ‘That’s right.’

Rd’A : ‘And $200,000.00?’

IA: ‘So much?’

Rd’A: ‘Do you want to leave him less?’

IA: ‘No, $200,000.00 is right.’

72. I then read paragraphs 4(c) to 4(k) inclusive of the December 2004 will and, after I read the name of each beneficiary and the amount being bequeathed to that beneficiary, Mrs Abraham said:

‘Yes.’


73. I then read paragraph 4(l) of the December 2004 will and we each said words to the following effect:

Rd’A: ‘Do you want to leave anything to Anne?’
IA: ‘Yes, $200,000.00 is right.’

74. We then said words to the following effect:

Rd’A: ‘What about the rest, after these legacies?’

IA: ‘To my cousins in England’.

75. We then said words to the following effect:

Rd’A : ‘You direct that you be buried at the Rookwood Jewish Cemetery with your late husband’.

IA: ‘Yes’.

Rd’A : ‘The last clause allows the executor to be paid professional costs’.

IA : ‘Yes’.

I did not make a note of that conversation.

76. After I had read the December 2004 Will to Mrs Abraham in this manner, we had a conversation in which we each said words to the following effect:

Rd’A: ‘Do you want to make a Will to dispose of all of your assets after your death?’

IA: ‘Yes, yes.’

Rd’A: ‘Do you want to leave it to these people?’ (At this point I indicated the unsigned copy of the December 2004 Will that I had just read aloud to Mrs Abraham).

IA: ‘Yes, I do’.

77. Mrs Abraham and I then had a conversation in which we each said words to the following effect:

Rd’A : ‘Do you want to sign your Will now?’
IA: ‘Yes’.”

89 The principal reason that Mrs Abraham gave for excluding Mrs Gutkovich from her will was that she considered that Mrs Gutkovich had stolen her car. From time to time she also expressed the view that Mrs Gutkovich had stolen her money, and she thought that Mrs Gutkovich had “got enough”.

90 On 3 March 2005 Mrs Abraham, acting through her tutor, the Protective Commissioner, commenced proceedings against Mrs Gutkovich in the Local Court for damages for conversion of the motor vehicle. The proceeding was defended. On 23 August 2005 Dr Wallace advised that:

“ 1. Mrs Abraham is able to express a reasonable opinion regarding the disposition of her assets and estate. She is competent to make such testimony when presented with appropriate facts and allowed opportunity to consider them.
2. Cognitive impairment such as that seen in Alzheimer’s Dementia is particular [sic] sensitive to stressful and aversive situations leading to a reduced level of performance such as with recall. Cross-examination would constitute such a stressor and would therefore impair her ability to reasonably express herself. ”

91 On 2 November 2005 Dr Wallace advised that he had again reviewed Mrs Abraham that day and advised that there was a six-month history of declining cognition and a development of disturbed behaviour. He advised that Mrs Abraham was then no longer competent to give testimony and would be unable to provide a statement for the purpose of evidence in the Local Court.

92 Mrs Abraham did not give evidence in the Local Court. On 9 May 2006 the Local Court gave judgment for Mrs Abraham in the amount of $18,500, being the full value of the motor vehicle and the full amount of the damages claimed, plus interest and costs.

93 As probate is no longer sought of the will of 10 May 2004 the relevant times for determining Mrs Abraham’s testamentary capacity are 7 July 2004 (when she signed the codicil revoking the gift to Mrs Gutkovich in the 2003 will), 23 November 2004 (when Mrs Abraham gave instructions to Mr d’Apice) and 3 December 2004 (when Mrs Abraham signed her last will). There is no reason to think that if Mrs Abraham had testamentary capacity on 23 November 2004 she lost it by 3 December 2004. The position can be considered as at 3 December 2004, having regard to what Mrs Abraham said both on 23 November 2004 and 3 December 2004. The onus of establishing testamentary capacity in each of those cases rests on the plaintiff. Given Mrs Abraham’s age, frailty, and the diagnosis of dementia, the plaintiff cannot and does not rely on a presumption of testamentary capacity arising from the due execution of a will apparently rational on its face.

Testamentary capacity for will and codicil

94 For Mrs Abraham to have had testamentary capacity to make her will of 3 December 2004 she must have been aware of and appreciated the significance of the act upon which she was to embark, namely, making her will; at least in general terms, she must have been aware of the nature and extent of her assets; and she must have been able to comprehend and appreciate the claims to which she ought to give effect, that is, she must have had the ability to evaluate those claims and discriminate the respective strengths of the claims on her, so that no disorder of her mind should prevent the exercise of her “natural faculties” which would influence her in making her will so as to bring about a disposal of her assets which, if her mind were sound, she would not have made (Banks v Goodfellow at 565; Read v Carmody (Court of Appeal, 23 July 1998, unreported); BC9803374 at 4-5; Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 705-707).

95 In Read v Carmody, Powell JA, with whom Meagher and Stein JJA agreed, said (at 4-5) that a testator or testatrix must be aware, at least in general terms, of the nature, extent and value of the estate. There is no evidence that the deceased was aware of the value of her estate, but the Court of Appeal has subsequently affirmed the correctness of the views expressed by Windeyer J in Kerr v Badran [2004] NSWSC 735 at [48]-[50] (see Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64], [94], [99]). In Kerr v Badran Windeyer J said (at [49]) that:

“ Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing ‘the extent’ of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. ”

96 These principles elucidate what is required for a testator or testatrix to be capable of making a will disposing of his or her estate to a particular beneficiary or amongst beneficiaries. As a matter of principle, it does not appear to me that the same capacity would necessarily be required for a testator or testatrix who wished only to revoke a particular gift. A testatrix, when perfectly capable, may have disposed by her will of an elaborate and valuable estate carefully between numerous potential claimants, having weighed their respective claims to a nicety. If one of the beneficiaries should so misbehave towards the testatrix that she resolved that that person should receive nothing, I see no reason in principle why it should be necessary in order for a revocation of such a particular gift to be effective that the testatrix should still have the capacity to appreciate the general nature and extent of her estate and be able to weigh the claims of all persons who might then be potential objects of her testamentary bounty. In principle, it should be enough that the testatrix is capable of making a judgment as to whether the person deserves to be excluded from the will. If the testatrix’s mind is so disordered by mental illness or disease that she is not capable of properly comprehending the continued claims of the beneficiary, so that the gift is revoked when it would not have been had her mind not been so affected, then the revocation should not stand. But in carrying out such a testamentary act, prima facie, it should be irrelevant if the testatrix did not know what was the extent of her assets.

97 It may be said that the testatrix should be able to decide how she would leave the disappointed beneficiary’s share, and for that purpose she would need to appreciate the strengths of the claims of everybody else on the estate. But that need not be so, if, as in the present case, there is a gift of residue. In providing for a residuary gift when she was fully capable the testatrix would have considered that the residuary beneficiaries were the persons who should be entitled if for any reason any of the specific gifts failed.

98 This view is supported by the observations of Young J (as his Honour then was) in the Public Trustee v Elderfield & Anor; Re Estate of Poole (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) where his Honour contemplated that in some cases a lesser degree of mental capacity might be required for the revocation of a specific bequest or legacy. In Hay v Simpson (1890) 11 LR (NSW) Eq 109 Manning J said (at 118-119):

“ No doubt it is unwise to make a will so late when a codicil will do, because a codicil keeps up the continuity of the testamentary capacity existing at the date of the will, so that in executing a codicil much less intelligence is necessary than in executing a will, and consequently professional men dissuade old persons from making wills where a codicil would be sufficient. ”

99 It is unnecessary to consider what the position would be if the revocation were of an entire will or a residuary gift (compare Public Trustee v Elderfield).

100 In the case of the codicil of 7 July 2004 revoking the gift to Mrs Gutkovich in the will of 9 September 2003, in my view it is necessary and also sufficient for the plaintiff to demonstrate that Mrs Abraham was capable of evaluating the strength of Mrs Gutkovich’s claim on her testamentary bounty.

101 Counsel for the plaintiff submitted that it was not necessary to show that Mrs Abraham had such an ability. Counsel said that the requirement in Banks v Goodfellow that a testator be able to comprehend and appreciate the claims to which he ought to give effect applies only in respect of those persons who have a natural claim on the testator’s bounty. Counsel submitted that a carer was not a person with a natural claim on the bounty of the testator, and her claim was not one to which Mrs Abraham “ought to give effect”. I do not accept that submission. It is a matter for a testator, not the court, to judge who are the persons with claims on his testamentary bounty. It is clear that Mrs Abraham earlier thought that Mrs Gutkovich was a person with a claim on her testamentary bounty. She had been Mrs Abraham’s close companion as well as carer for 10 years.

102 I consider first the validity of the will of 3 December 2004. It is clear and was not disputed that Mrs Abraham understood the significance of the act upon which she was embarking. That is to say, she understood that she was making a will which would direct who would receive her property after her death.

103 I consider that Mrs Abraham was also aware, in general terms, of the nature and extent of her assets. That assessment is not made easily because neither party sought to place before the court a clear description of the assets Mrs Abraham owned in 2004. It appears from Mr William d’Apice’s affidavit of the deceased’s assets as at 27 February 2009, from an account provided by the Office of the Protective Commissioner of the transactions conducted by the Protective Commissioner between 22 June 2004 and Mrs Abraham’s death, and also from evidence given by Mr Richard d’Apice, that in 2004 Mrs Abraham owned her unit in Darling Point in which she lived, the block of units in McKeon Street, Maroubra which she still owned at her death, a unit in Byron Street, Coogee, shares from which she derived dividends, and term deposits with Westpac Banking Corporation and BT Financial Group. On 8 September 2004, 14 October 2004 and 13 September 2005 the Protective Commissioner redeemed investment funds held with BT Financial Group and Westpac. The amounts of the redemptions were $110,590 on 8 September 2004, $112,526 on 14 October 2004 and $139,125 on 13 September 2005. On 12 July 2006 and 18 July 2006 cheques totalling $471,594.47 were received, representing the proceeds of sale of the Coogee property.

104 When asked about her assets in 2004, Mrs Abraham made no reference to the Coogee unit. There is no evidence as to whether she was deriving rent from the Coogee unit, although it is reasonable to assume that she was. However, Mrs Abraham was able to say accurately that she owned units in Maroubra, her unit at Darling Point, shares, and other money. She so advised Mr d’Apice on 1 July 2004 (para 25 of Mr d’Apice’s affidavit quoted at [63] above). On 23 November 2004 Mrs Abraham told Mr d’Apice that she owned her apartment in Darling Point, flats in Maroubra and had cash investments (para 41 of Mr d’Apice’s affidavit quoted at [83] above). She did not then refer to owning shares. However, on 3 December 2004 she was able to say that she also received dividends and referred to bank deposits. Although there is no evidence that Mrs Abraham then appreciated the market value of her shares, investment properties and unit, it is clear from Kerr v Badran that such awareness would not be necessary for her to have testamentary capacity.

105 The only substantial omission from her description of her assets was the omission of the Coogee unit. Nonetheless, Mrs Abraham was aware that she owned real estate as an investment and was able to identify the principal asset of that category. Kerr v Badran establishes that the Banks v Goodfellow test may not require that older people know of each particular asset, let alone the value of each asset comprising the estate. Mrs Abraham knew that she had real estate investments and it is a reasonable inference that she knew that she received income from that source. It does not matter that she did not know how much income from real estate investments she received. Nor does it matter that she did not identify the Coogee unit as being one of those investments. In my view the second element of the Banks v Goodfellow test (namely that the testatrix understand the extent of property of which she was disposing) is satisfied.

106 The third necessary element is common to both the will of 3 December 2004 and the codicil of 7 July 2004 (if the will of 3 December 2004 is not admitted to probate). It is that Mrs Abraham have been able to comprehend and appreciate the claims to which she ought to give effect. The only real issue concerns the claim of Mrs Gutkovich. In respect of other claimants, Mrs Abraham did make an assessment as to the amounts she considered each beneficiary should receive. She said that a legacy of $500,000 in addition to the Darling Point unit for Mr Cario was too much, and reduced the legacy to $200,000. She gave further consideration to whether the sum of $200,000 was appropriate and confirmed to Mr d’Apice that in her view it was. The mere fact that Mrs Abraham debated whether the quantum of the legacies was right does not of itself indicate that she had the capacity to make an assessment that the quantum was right, but there is nothing to show that she was unable to appreciate the extent of the claim of Mr Cario on her testamentary bounty. The same observation applies to her debate as to whether a legacy of $200,000 for Mrs Marsden was appropriate. Of course the onus is on the plaintiff to establish capacity, but the fact that Mrs Abraham apparently weighed in her own mind when giving instructions to Mr d’Apice whether the legacies were appropriate, coupled with Dr Wallace’s opinion, indicates that she had capacity to weigh the claims of the legatees.

107 The real question is whether Mrs Abraham was able properly to appreciate the claim of Mrs Gutkovich on her estate.

108 In approaching that question I start from the position that Dr Wallace and Mr Richard d’Apice were satisfied as to Mrs Abraham’s capacity to make both the will of 3 December 2004 and the codicil of 7 July 2004 (in relation to Mr d’Apice, see affidavit of Richard d’Apice sworn 12 November 2008 at [17] and T45, T54, T55; in relation to Dr Wallace, see T211 and affidavit of Dr Wallace sworn 4 February 2009 at [19]). Mr d’Apice’s opinion is of no small weight. He had over 30 years’ experience in estate matters. At all points he acted appropriately in referring Mrs Abraham for specialist opinion. He did all that he could do to satisfy himself that the Banks v Goodfellow tests for testamentary capacity were satisfied. He was clearly satisfied that they were as at 23 November and 3 December 2004. He also thought that Mrs Abraham had capacity at 7 July 2004 to revoke the previous gifts to Mrs Gutkovich. Mrs Abraham’s lucid responses to his questions were the foundation for those opinions.

109 Although Dr Wallace’s notes of his consultation on 17 November 2004 and his affidavit evidence do not demonstrate that he did all that was required to assess Mrs Abraham’s testamentary capacity, particularly in the area of determining her ability to understand the general nature of the extent of her estate, his opinion that Mrs Abraham had testamentary capacity is also entitled to significant weight. That is particularly so given that the area in which his evidence of appropriate questioning was deficient is remedied by the evidence of Mr d’Apice.

110 Prima facie, the onus of establishing testamentary capacity is discharged by the evidence of Dr Wallace and Mr d’Apice. However, that would not be so if I were satisfied that Mrs Abraham had told Mrs Gutkovich in December 2003 that she would buy the Toyota motor vehicle for Mrs Gutkovich. If I were satisfied of that fact, the question would arise why it was that from 1 July 2004 Mrs Abraham asserted that Mrs Gutkovich had stolen the motor vehicle. As Mrs Abraham suffered from dementia, was vulnerable to suggestion, and had an impaired memory, I could well conclude that notwithstanding the opinion of Dr Wallace and the evidence of Mr d’Apice, in fact Mrs Abraham was not able properly to appreciate the claim of Mrs Gutkovich on her testamentary bounty. She may have simply yielded to suggestions of others that Mrs Gutkovich had stolen the car and had no memory of having promised the car to Mrs Gutkovich as a gift (although there was no direct evidence of anyone making that suggestion to her). However, if I am not satisfied that Mrs Abraham promised the car to Mrs Gutkovich as a gift, then this ground for challenging Mrs Abraham’s testamentary capacity would not arise. (Compare Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284.)

111 Therefore, although the critical question is whether Mrs Abraham had testamentary capacity, and as an aspect of that, whether she had the capacity properly to appreciate and weigh the claims of Mrs Gutkovich on her testamentary bounty, the factual issue of whether or not Mrs Abraham did promise the car to Mrs Gutkovich as a gift is important in determining those questions of capacity. On the issue of whether there was a gift of the car, the evidentiary onus lies on Mrs Gutkovich, notwithstanding that the onus of proving testamentary capacity lies on the plaintiff. Prima facie, as the car was purchased with Mrs Abraham’s money, she would be beneficially entitled to the car. The question is whether I am satisfied on Mrs Gutkovich’s evidence that the car had been given to her.

112 Counsel for the plaintiff said that that question had already been decided and that Mrs Gutkovich was bound by the finding of the Local Court. Undoubtedly the Local Court judgment creates an estoppel which bound the parties to the Local Court proceeding, namely Mrs Gutkovich and Mrs Abraham. But the present claim for probate is not a suit between Mrs Abraham and Mrs Gutkovich. It is a procedure in rem which decides for the whole world whether or not Mrs Abraham had testamentary capacity. I do not think that an estoppel arises.

113 The only evidence of the alleged gift was from Mrs Gutkovich herself. In such a case, because the deceased is not able herself to give evidence, the court scrutinises very carefully the evidence of Mrs Gutkovich that there was a gift (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544).

114 I do not consider Mrs Gutkovich to be a reliable witness. Her evidence on the quantum of payments she received from Mrs Abraham was inconsistent with her submissions to the Guardianship Tribunal and with the Tribunal’s account of her evidence to it. It is also inconsistent with the other evidence. From her perspective this was an important issue as behind it lay the contentions advanced by other parties to the Tribunal that she exploited Mrs Abraham. That was not a question before me, but it indicates the importance to Mrs Gutkovich of the topic of how much she was paid. On that topic her evidence was less than frank. Her evidence of not having retained Mr Bush as her solicitor (see para [30] above) was also important on the question of credit, because again the implication was that she exploited Mrs Abraham by having Mrs Abraham pay her solicitor’s bill. There may have been any number of reasons why it was appropriate for that bill to be paid by Mrs Abraham, but Mrs Gutkovich’s denial that she retained Mr Bush was contrary to other objective evidence and damaging to her credit.

115 There was no corroboration of Mrs Gutkovich’s evidence that Mrs Abraham told the salesperson at Toyota to register the car in Mrs Gutkovich’s name, as it was her car. According to Mrs Gutkovich, that statement was witnessed both by the salesperson at Toyota and by her daughter and son-in-law. Mrs Gutkovich’s daughter, Diana, was present in court during the hearing. She did not give evidence. There was no evidence that her son-in-law, Mr Lekrari, was not available to give evidence. Nor do I accept that it would not have been possible, after making appropriate inquiry, for Mrs Gutkovich to have identified the salesperson before whom the statement was allegedly made.

116 In short, I am not satisfied that Mrs Abraham did make a gift of the car as Mrs Gutkovich deposed. That being so, Mrs Abraham’s repeated statements that Mrs Gutkovich had stolen her car do not raise doubts about her testamentary capacity. I do not conclude that Mrs Abraham had forgotten the gift, or spoke in those terms because it was an idea suggested to her by others, because I am not satisfied that there was such a gift.

117 On 1 July 2004 Mrs Abraham told Mr d’Apice that Mrs Gutkovich “turned out to be a thief. She took money from me and she took my car.” Mrs Abraham told Dr Wallace on 7 July 2004 that “she stole from me and took my car.” On 23 November 2004 she did not tell Mr d’Apice that her reason for leaving nothing to Mrs Gutkovich was that Mrs Gutkovich had taken money as well as the car.

118 It could not be said that Mrs Gutkovich stole money from Mrs Abraham. But Mrs Gutkovich did receive substantial amounts of money from Mrs Abraham in a way which created a large tax liability for Mrs Abraham for unremitted PAYG deductions. She undoubtedly “took” money from Mrs Abraham. The statements made by Mrs Abraham after 18 June 2004 (when Mrs Gutkovich had been dismissed) concerning the money she paid to Mrs Gutkovich do not indicate a lack of testamentary capacity. They indicate only some degree of exaggeration.

119 The third reason given by Mrs Abraham for not leaving any money to Mrs Gutkovich was that Mrs Gutkovich had already received enough. That was a view which could rationally be held.

120 Neither in his reports nor in his affidavits did Dr Wallace specifically address the question whether Mrs Abraham had the capacity to make a proper assessment of whether Mrs Gutkovich deserved to be excluded from her will. Nor was that matter specifically raised in cross-examination. In response to questions asked by me, Dr Wallace said that he did not form an opinion on 7 July 2004 as to whether Mrs Abraham had the capacity to assess rationally whether Mrs Gutkovich had done anything to deserve being removed as a beneficiary. I also asked:

“ Q. Considering the position now, having regard to all you saw of her, are you able to express an opinion today as to whether you think Mrs Abraham had the capacity on 7 July to make a rational assessment of whether Galina had stolen from her and taken her car? ”

Dr Wallace answered:

“ A. I think that Mrs Abraham was able to make broad and reasonable statements about her circumstance. I think she was also vulnerable to informations, be it present or absent, and when information was withheld from her I don't think she could reasonably have presumed it. Do I think that she was able to make; I thought that she was cognitively more able at that stage as her competencies reflect, her capacity, I think she was able to make reasonable judgment, yes. ”

121 I understand the effect of this evidence to be that in Dr Wallace’s opinion, although Mrs Abraham was vulnerable to suggestion and not able to pursue her own inquiries, she was nonetheless capable of making a reasonable judgment about Mrs Gutkovich’s conduct.

122 I also asked:

“ Q. As at 17 November 2004 are you able to give an opinion as to whether at that date, 17 November, Mrs Abraham had the capacity to make a rational assessment as to whether Mrs Gutkovich had done anything to deserve being removed as beneficiary of the will? ”

123 The transcript recording Dr Wallace’s answer is garbled, but his initial answer was to say that he did not have an opinion about her capacity to make such an assessment. Dr Wallace added “What I do think [is that] Mrs Abraham was able to do, inform on reasonable ground, able to inform people of her wishes.” (Unfortunately the transcript at T254 where I discussed with counsel Dr Wallace’s answer to the question is also garbled.)

124 Dr Wallace’s answers to this question appeared to be inconsistent in that I understood him to say both that he did not have an opinion as to whether Mrs Abraham had the capacity to make such an assessment, but also that Mrs Abraham was able, on reasonable grounds, to inform people of her wishes. As I understood the latter answer, Dr Wallace was saying that in his opinion Mrs Abraham was able to form her opinion on reasonable grounds. This answer was given after Dr Wallace had observed that people with dementia were vulnerable to suggestion.

125 In the absence of a finding that Mrs Abraham had made a gift of the car to Mrs Gutkovich, I do not think that this evidence from Dr Wallace is sufficient to displace the opinion which Dr Wallace expressed that Mrs Abraham did have testamentary capacity.

126 Mrs Gutkovich relied on the evidence of Professor Ehrlich, a geriatric rehabilitation specialist. Dr Ehrlich proceeded from the position that Mrs Abraham had moderately severe dementia in June 2004 such that she lacked testamentary capacity at that time. As dementia is a progressive disease, he said it was not plausible that she should have regained testamentary capacity. In particular, he said that the medication prescribed for Mrs Abraham by Dr Wallace was not capable of improving Mrs Abraham’s cognitive ability.

127 Dr Wallace agreed that the medication did not cure the underlying condition. However, the cognitive ability of a patient in the circumstances of Mrs Abraham from time to time would be affected not only by the extent of the underlying condition of dementia, but also by other factors such as whether she was suffering from any other illness, or was subject to stress. Moreover Dr Wallace said that whilst the literature showed that for a population of patients the medication could only slow the rate of deterioration, individual patients could show improvement in their cognitive ability for some period of time before their cognitive abilities further deteriorated. Dr Wallace said that this was recognised by the fact that for a patient to continue to be able to receive the medication through the Pharmaceutical Benefits Scheme, it was necessary for a doctor to certify that there had been an improvement in the patient’s cognitive abilities. I accept Dr Wallace’s evidence on this.

128 Moreover, it is not the case that Mrs Abraham had been diagnosed with dementia in June 2004 which deprived her of testamentary capacity, although Dr Wallace did express the opinion to Mr d’Apice that the will of 10 May 2004 would not have been valid. Nonetheless, the assessment carried out by Dr Wallace on 16 June 2004 was not an assessment of Mrs Abraham’s testamentary capacity. A person may be incapable of managing his or her own affairs, but yet have testamentary capacity (Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377). Dr Wallace was also of the view in June 2004 that Mrs Abraham would not have capacity to execute a new power of attorney. Again, it would not follow that on that account she would necessarily lack testamentary capacity. A person’s capacity to make a judgment as to who is a proper person to manage her real property and other investments is different from testamentary capacity.

129 As a doubt arises as to Mrs Abraham’s testamentary capacity, the onus of proving that Mrs Abraham had capacity to make her will of 3 December 2004 or to execute the codicil of 7 July 2004 lies on the plaintiff. It is enough that that capacity is established on the balance of probabilities to my reasonable satisfaction. There is room for some doubt in relation to that question, but I am nonetheless affirmatively satisfied that Mrs Abraham was possessed of sound mind, memory and understanding at the time she executed the will of 3 December 2004 (Worth v Clasohm (1952) 86 CLR 439 at 453). If the question arose, I would also be satisfied that she had sufficient capacity to make the codicil of 7 July 2004.

130 For these reasons I order that probate of the will in solemn form of Irene Abraham made on 3 December 2004 be granted to the plaintiff.

131 I order that the proceedings be referred to the Registrar to complete the grant.

132 I order that the claims in paragraphs 2, 3 and 4 under the heading “Relief Claimed” in the further amended statement of claim be dismissed.

133 I order that the cross-claim be dismissed.

134 I order that the costs of the plaintiff on the indemnity basis be paid out of the assets of the estate.

135 I will hear the parties in relation to the further costs orders to be made.

136 The exhibits may be returned after 28 days.

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