Gooley v Gooley

[2021] NSWSC 56

Supreme Court

New South Wales

Medium Neutral Citation:

Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56

Hearing dates:

18, 19, 20, 21, 22 November 2019
18 December 2019
24, 25, 26, 27, 28, 31 August 2020
1, 2, 3, 4, 23 September 2020, 3 November 2020 (dir)
Further documents received from the plaintiffs/cross defendants on 28 September 2020
Further submissions received from the defendant/cross claimant on 14 October 2020, and further submissions received from the plaintiffs/cross defendants on 21 October 2020

Decision date:

12 February 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See para [1180]

Catchwords:

SUCCESSION – Contested probate – Testamentary capacity – Application of the test in Banks v Goodfellow – Where numerous wills made over two year period – Where wills rational on their face – Where deceased suffered stroke, vascular dementia and other medical illnesses known to affect executive function – Whether deceased was able to comprehend and weigh claims of potential beneficiaries – Whether impairments suffered continuously or episodically

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089

Boreham v Prince Henry Hospital (1955) 29 ALJR 179

Carr v Homersham (2018) 97 NSWLR 328

Coates v Wattson; Estate of Sullivan [2013] NSWSC 604

Croft v Sanders [2019] NSWCA 303

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dellios v Dellios [2012] NSWSC 868

Drivas v Jakopovic (2019) 100 NSWLR 505

Estate Beeby, Re: Beeby v Eggers [2015] NSWSC 1466

Gray v Hart [2012] NSWSC 1435

Kerr v Badran [2004] NSWSC 735

Loupos v Demirgelis [2008] NSWSC 1207

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mekhail v Hana [2019] NSWCA 197

Nicholson v Knaggs [2009] VSC 64

Norris v Tuppen [1999] VSC 228

Pate v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported, Santow J)

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Phillips v Phillips [2017] NSWSC 280

Re Crooks Estate (Supreme Court of New South Wales, unreported, 14 December 1994)

Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Re Estate Stojic [2017] NSWSC 168

Re Estates Croft, deceased [2018] NSWSC 1303

Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22

Revie v Druitt [2005] NSWSC 902

Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir (2008) 71 NSWLR 593

Rowe v Sudholz [2019] QSC 306

Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007

Tobin v Ezekiel (2012) 83 NSWLR 757

Zorbas v Sidiropoulos (Estate of Kriezes) (No 2) [2009] NSWCA 197

Texts Cited:

Martyn Frost, A Victorian Tragedy: The Extraordinary Case of Banks v Goodfellow (Wildy, Simmonds & Hill Publishing, 2018)

Category:

Principal judgment

Parties:

Aleta Joy Gooley (first plaintiff)
Melinda Louise Foley (second plaintiff)
Brett Raymond Gooley (defendant)

Representation:

Counsel:
C Harris SC (2019), E G Romaniuk SC and D-L Del Monte (2020) (plaintiffs)
J P Knackstredt, T Jonker (defendant)

Solicitors:
Teece Hodgson & Ward (2019), Martin Street Lawyers (2020) (plaintiffs)
M & K Lawyers Group Pty Ltd (defendant)

File Number(s):

2018/63881

Publication restriction:

n/a

index

Procedural Background

Background Facts

The Gooley family

The Deceased’s Wills

The Deceased’s Doctors, Carers and Advisors

Significant Events and the Circumstances Surrounding the Making of the Wills

Legal Principles

The Evidence

The Expert Medical Evidence

Professor Watson

Associate Professor Brodtmann

Ms Kennedy

Dr Lonie

The Deceased’s Treating Doctors

Dr Barrett

Dr Dedousis

The Deceased’s Advisors

Mr White

Mr Colley

The Parties’ Evidence

Further Lay Evidence

Peter Rogers

Clive Morris

Vick Rogers

Karen Crighton

Valerie Bryant

Jane Savona

Josephine Borg

Tyrone Gooley-Carrol

Chiara Jackson

Peter Hunt

Attesting Witnesses

Michael Marney

Kiralee Gardiner

Matina Dunphy

Wendy Hanslow

Daniel Haydon

Affidavits of Service

Summary of the Parties’ Submissions

Plaintiffs’/Cross-Defendants’ Submissions

Defendant’s/Cross-Claimant’s Submissions

The witnesses and experts

The Deceased’s 2013/2014 Handwritten Note

Consideration

Judgment

Procedural Background

1. These proceedings concern the estate of the late Melville Gooley (the deceased) who died 23 December 2017. The deceased’s daughters, Aleta Gooley and Melinda Foley (the plaintiffs), by way of summons dated 9 July 2018, seek a Grant of Probate of the will of the deceased made on 18 July 2014 (2014 Will) or in the alternative the latest in time of six earlier wills made by the deceased after a will made on 15 June 2012. The deceased’s son, Brett Gooley (the defendant), by way of cross claim, seeks a Grant of Probate of the will of the deceased made on 1 February 2010 or in the alternative the will of the deceased made on 15 June 2012. The dispute rests nearly entirely on whether the deceased had the testamentary capacity at the time in which the relevant wills were made.

2. The matter first came before me in the expedition list on 31 May 2019. I was informed at that time that the grandson of the deceased, Charlton, had commenced family provision proceedings on 20 December 2018. Charlton was aged 11 and suffers from severe autism spectrum disorder. He is currently under the care of his older siblings and has significant and urgent financial and care-based needs. The family provision proceedings could not be decided until these proceedings have concluded. I therefore made orders expediting the matter.

3. The matter was initially listed for five days from 18-22 November 2019 then a further five days from the 2-6 March 2020 for the completing of evidence and final submissions. I heard an additional day of evidence on 18 December 2019. Further dates were set aside in case they were required, namely 12 and 13 March and 16-20 March 2020. Towards the end of 2019 I suggested that the parties attempt to mediate. That was initially opposed by the plaintiffs but a mediation was eventually scheduled for 24 February 2020.

4. However on 21 February 2020 I was informed that the plaintiffs had terminated their entire legal team, solicitors and counsel, and that it was unlikely the hearing could proceed on the scheduled dates. The plaintiffs brought an application to adjourn the balance of the hearing on 26 February 2020 which I granted.

5. Prior to the matter recommencing the defendant brought what I would call satellite proceedings against the plaintiffs, seeking an order under s 73 of the Probate and Administration Act 1898 (NSW) appointing an administrator pendente lite in respect of all of the assets of the deceased estate and other relief, which were heard by Williams J (see Gooley v Gooley [2020] NSWSC 798; Gooley v Gooley (No 2) [2020] NSWSC 1018).

6. The matter recommenced before me on 24 August 2020 and in the end ran for a total of 17 days.

Background Facts

The Gooley family

7. The deceased was married to Joyce Gooley. Together they had five children, Brett, Melinda, Janine, Damon and Aleta. Damon died on 21 August 1981. The deceased passed away on 23 December 2017. His wife, Joyce, predeceased him, having died in 2000. Janine died in February 2018.

8. The deceased left school after completing year 9 and studied accounting. Over many years he amassed considerable wealth through a family business consisting of a fairly complicated web of companies and various properties. The deceased’s personal estate was estimated to be some $30 million (Affidavit of executors Aleta Gooley and Melinda Foley, 5 November 2018). However the defendant contends the value of the estate is in excess of $90 million (Affidavit of Brett Gooley, 27 May 2020).

9. The defendant, Brett, has practiced as a General Medical Practitioner since 1978, including acting as the deceased’s GP for the majority of time between 1979 and 2006. The deceased assisted the defendant financially in obtaining his medical qualifications as well as providing some financing in relation to the acquisition and development of medical centres. In 2005 the deceased gave the defendant $205,000 as a birthday present however the defendant says he repaid this sum some months later. The deceased occasionally sought repayment of money from the defendant and in 2007 threatened to sue him in relation to moneys loaned.

10. It appears that the relationship between the deceased and his children, in particular Brett and Janine was strained from time to time. He appears to have had a more harmonious relationship with Melinda and Aleta, particularly in more recent years. However the notes of private carers employed to provide 24 hour live in care to the deceased from November 2012 record that their relationship with their father was also troubled at times.

The Deceased’s Wills

11. The deceased was a prolific will-maker in his later years. He made at least 11 wills after the death of Joyce in 2000. The wills can be summarised as follows:

1. 19 April 2001

2. 11 October 2005

3. 9 August 2007

4. 1 February 2010

5. 15 June 2012

6. 4 September 2012

7. 12 November 2012

8. 14 March 2013

9. 22 May 2013

10. 7 March 2014

11. 18 July 2014

12. He may also have made a further will dated 30 June 2008. It appears that there was a general intention on the part of the deceased to give to each of his children one company and with it the real property that that company held.

The Deceased’s Doctors, Carers and Advisors

13. As I have said, the defendant acted as the deceased’s GP for much of the time between 1979 and 2006. From about the 1990s Dr Phillip Barrett also acted as the deceased’s GP.

14. The deceased had several ongoing health issues, as will be revealed in the chronology below. He had several relevant hospital admissions. From November 2012 he received 24 hour in home care when he was not in hospital. Dr Chris Dedousis, a geriatrician, was involved in the deceased’s care from mid 2012. He managed the deceased both as an inpatient and outpatient in conjunction with Dr Robert Smith, cardiologist.

15. Mr John Colley was the deceased’s long term accountant and Mr Gary White was the deceased’s lawyer for a period of time in the mid 1990s and then from approximately December 2011 until June 2015.

Significant Events and the Circumstances Surrounding the Making of the Wills

16. Both sides provided comprehensive chronologies cross referenced to contemporaneous documents, including hospital notes and reports, notes kept by the deceased’s private in home carers (the Private Care Notes), as well as letters, emails and faxes sent by the deceased, the parties to these proceedings and the deceased’s treating practitioners. The defendant also provided a comprehensive annexure to his closing submissions titled “The Facts” which sets out the background to the proceedings in narrative form. The plaintiffs provided an additional schedule of notes from hospital records and bundles and schedules concerning handwritten notes made by the deceased.

17. The events identified in these chronologies and schedules, including that the various records and notes were made, are largely uncontroversial (save for the various submissions made in the defendant’s “The Facts” annexure). However the significance of what was recorded must be considered in the context of the opinions of the expert witnesses and the other evidence (see below). Due to the importance of scrutinising the deceased’s medical condition and circumstances surrounding the execution of each will I have, unashamedly reproduced much of what was included in the parties’ chronologies below and find the following facts. The chronology is necessarily long given the number of wills the deceased made. Some of the events set out below may appear in isolation of little consequence, but I have included them so as to provide as comprehensive a picture as may be obtained from the contemporaneous materials.

18. In 1990 the deceased suffered several transient ischaemic attacks. On 24 August a CT scan was conducted, with no abnormality apparent. However several days later he experienced dizzy spells and weakness down the left arm.

19. In April 1992 Dr Barrett formed the view that the deceased suffered atrial fibrillation with a controlled ventricular response, moderate to severe mitral stenosis and mild to moderate regurgitation with rigid valve mechanism.

20. On 16 August 1993 the deceased made a handwritten note which was recorded in the defendant’s medical notes: “I do not hold Brett responsible for my stroke if I don’t (sic) continue with my warfarin. Recommencing 17/8/93 [signed]”.

21. On 26 April 1994 Dr J D Woolridge, cardiologist, sent the defendant a letter suggesting that the deceased be put on a “low dose Warfarin”.

22. A CT scan report of 16 April 1998 in relation to the deceased stated, “There is minor patchy periventricular deep white matter hypodensity, particularly around the frontal and occipital horns. This is consistent with chronic small vessel ischaemic disease.”

23. On 22 April 1998 Dr Paul Salmon, radiologist, sent the defendant a letter reporting on a Cerebral Digital Subtraction Angiography examination of the deceased. It identified, “Mild stenosis immediately distal to the origin of the right subclavian artery. Minimal Stenosis in the right internal carotid origin but no other abnormality.”

24. On 24 April 1998 Dr Woolridge sent a letter to the defendant reporting on a referral of the deceased following a dizzy spell and two blackouts. Dr Woolridge said, “He is clearly manifesting vestibular symptoms… He has been slightly deaf over the right ear for some time.”

25. The deceased made a will dated 19 April 2001.

26. On 2 May 2003 the defendant by letter assigned and guaranteed payment to the deceased of $408,146.68 in exchange for advancing $300,000.

27. On 25 May 2004 the defendant accepted an appointment as attorney for the deceased under an Enduring Power of Attorney.

28. On 1 June 2004 the deceased sent the defendant a letter in which he thanked the defendant and his wife for attempting to relocate him but declined on the basis that “the one thing I have really wanted for at least 25 years is to walk along North Cronulla beach every day ‘time’ my greatest enemy has helped to elude me this dream.”

29. On 29 July 2004 a cardiologist, Dr Smith, sent a letter to the defendant reporting on a review of the deceased’s cardiac status. It said:

In 1990 he presented with a TIA and was found to be in arterial fibrillation and in fact has been on Warfarin ever since which has been very successful at preventing recurrences of TIA….

Thus in assessing him, he has rheumatic heart disease with moderate mixed mitral valve disease and mild aortic stenosis, he is in chronic atrial fibrillation which no doubt will be a long term problem for him. In this regard I have told him that the Warfarin is [sic] vital…

30. The deceased made a will dated 11 October 2005.

31. On 6 February 2006 the defendant wrote a letter to the deceased regarding an assertion made by the deceased that the defendant had not repaid all funds loaned to him:

However, it isn’t the money you seem to be running a vendetta on the belief that you think I look advantage of you. Well, despite your beliefs you are in error …as you have been with some repaid as evidenced by traces...

I am more than happy to drop in Mon or Wed early to PM to explain / prove / elaborate

32. On 22 February 2006 the deceased executed a Deed of Revocation of General and Enduring Power of Attorney:

By instrument dated 18 May 2004 I appointed Brett Raymond Gooley of 357 Victoria Place Drummoyne New South Wales Australia as my attorney…

I wish to revoke the power of attorney immediately.

33. A St George Bank cheque stub for the amount of $100,000 was made out to Goold Enterprises Pty Ltd on 10 April 2006.

34. On 16 August 2006 the deceased made a handwritten notation on the defendant’s 2 May 2003 letter:

Dear Brett, The total amount to be paid to me 8-12-05 from Gribbles was $408146.68. You have paid $400,000-00. The balance $8146-68. Is required to 299 Woolooware Rd. Thank You, Dad

35. The defendant made his own handwritten note on the letter dated 30 September 2006: “Paid KB 30/9/06 #000932 Goold Enterprises”.

36. A St George Bank cheque stub was made out to Goold Enterprises for the amount of $8,146.68 for “outstanding interest (MWG)” and dated 30 September 2006.

37. On 11 January 2007 the deceased sent a fax to the defendant:

Dear Brett

It was not until December 2005 that I realised that you were taking advantage of me, your father.

…

You were handed a list of money loaned to you from 1991. Since then all you do is make excuses…

I think it is time you commenced paying your debt or do I have to retract my statement, “about suing (sic)”

38. On 7 June 2007 the deceased sent a fax to the defendant:

My Son Brett

…..

Listening to other peoples questions has educated me with knowledge that I am not the only parent with a child reluctant to pay their borrowings.

Small satisfaction when one thought they could trust their family.

39. On 1 August 2007 the defendant wrote a letter to the deceased:

Your comments about my sisters just further confirms for me how little you know me. Besides if you’re so concerned about them getting their inheritance why not give it to them now, that way you won’t have to worry

…

I until now put your behaviour down to aging & cognitive decline which affects 85% of people after the age of 80 (delirium/dementia). I stood the embarrassment of your solicitor’s letter requesting I acknowledge my sacking as your legal guardian & enduring power of attorney etc. the dumping in the street outside my house your birthday present, you demanding the return to your house of redundant windsurfers, water skies, box trailer etc and the total disengagement or even acknowledging the existence of my children now 11, 7 & 3.5. Innocent victims of your rage. If it was all directed at me one could tolerate it but when you involve the obvious innocent not even your age will excuse you. God, I hope I never age like you.

40. The deceased made a will dated 9 August 2007. It appears that he may also have made a will dated 30 June 2008.

41. On 1 June 2008 the deceased and Aleta executed a deed regarding Dama Enterprises Pty Ltd which states:

A. DAMA ENTERPRISES PTY LTD (A.C.N: 000 604 071) (‘the Company)

is at today’s date, the owner of the properties herein listed:

31 December 2007- Land Tax Value

a) 7 President Avenue Caringbah       $756,667.00

b) 35 Burraneer Bay Road Cronulla        $966,667.00

c) 25 Marlo Road Cronulla           $706,667.00

d) 335 Rocky Point Road Sans Souci     $765,000.00

e) 75 Station Road Auburn           $700,000.00

f) 76 Dartbrook Road Auburn        $699,997.00

g) 9 Gibbons Street Auburn           $534,667.00

TOTAL $5,129,665.00

B. The Testator, by way of his Will dated 30 June 2008 has agreed to

provide the Beneficiary her inheritance by way of a testamentary gift

of the Testator’s remaining shares in the Company.

…

D. As the Testator has made adequate provision for the Beneficiary in

his Will dated 30 June 2008 (‘Testators Will’) the said Testator and

Beneficiary have now agreed to enter into this Deed.

…

3. The Beneficiary understands that the intention of the Testator have

been clearly carried out in his Will and the benefit of the above

properties has been made and accepted by the Beneficiary as being a

fair share of the Testators estate that the Beneficiary may have claim

to.

4. By entering into this agreement, the Beneficiary agrees that they

will not, make a claim upon the Estate of the Testator for any benefit,

of any kind, additional to that which has been provided in the said

Will.”

…

42. And on 10 July 2008 the deceased and Melinda executed a deed in similar terms but in relation to Goold Enterprises Pty Ltd.

43. In 2009 (date unknown) the defendant sent the deceased a fax:

I herein enclose specialist cardiology reports on yourself which you believed you never had, had or never attended.

Is it not conceivable that the things I have said to you were the truth and that you merely forgot…

44. On 11 February 2009 Aleta signed an Appointment of Enduring Guardian.

45. On 16 January 2010 the deceased sent the defendant a fax:

My Dear Son

I understand you have been contacted by people worried about my whereabouts.

I had Xmas lunch at Janine’s place. Aleta and Patrick were there also. They were all advised I was going north for a trip. Enclosed is a fax from Aleta re: coming Xmas.

They are so jealous of each other.

Apologies for any time or worry it has caused you.

Happy new year 2010

46. The deceased made a will dated 1 February 2010. As I have noted, the defendant’s primary case is that probate ought to be granted of this will. It is the last will of the deceased’s that was prepared by a solicitor other than Mr White. It divides the estate roughly equally between the deceased’s surviving children and the defendant is the named executor.

47. On 3 February 2010 the defendant responded to the deceased’s 16 January fax:

Dear Dad,

…

It saddens me that you are still not cognisant of why they may be jealous and the family is perhaps dysfunctional. I on numerous occasions both oral and written have suggested to you that open dialogue with all present was the way rather than secretive one on one interludes which only leads to mistrust for those concerned…

I can forgive your attitude towards me but I will never forgive your treatment of my children who in anyone’s terms including yours were innocents….

48. On 7 February 2010 the deceased sent another fax to the defendant detailing attempts he had made to see his grandchildren. He then stated, “I have since received some invitations to attend functions at school, but have declined. You are right the children are innocents.”

49. On 19 November 2010 Mr Colley stated in a memo addressed to the deceased:

As you are aware, the Company Annual Statement has for many years held on error, stating that Breda Pty Ltd is the ultimate holding company. This is impossible…consequently we need to make an adjustment which I ask you to sign….

50. On 25 November 2010 Mr Colley made another memo regarding various companies:

If “Errors” were made when lodging a Company Annual return (Such as an error being made in quoting the wrong person as being a shareholder) that error does NOT make the error now TRUE…

Changes come from Decisions and actions of the Company – NOT from simply recording some incorrect fact with ASIC

51. On 26 November 2010 a Dr Eugene Loh sent a letter to Dr Barrett setting out the deceased’s request for a low dose of warfarin.

52. On 27 November 2010 the deceased sent the defendant a fax stating, “Should I die you had better keep Motasea P/L she (Janine) cannot handle money.”

53. In early 2011 the relationship between the defendant and the deceased appears to have been quite harmonious. In February 2011 the deceased wrote to the defendant providing him with instructions to access several of his personal and company bank accounts.

54. On 15 May 2011 John C Colley & Co sent the deceased a letter setting out Mr Colley’s advice and recommendations regarding a restructure which included:

Over many decades you have built up a big and profitable asset base and operated through a series of Companies and trusts’…

For more than the last decade you have had quite a definite plan as to what Assets you have wanted to pass to each of your children. The current group of Companies and Trusts does NOT facilitate this. I predict great trouble and great cost if something is not done to redress the situation….

I have to respond to a comment you made that ‘if Company statutory records cannot be found, that will be the end of it. I see such as being the start of it, the potential triggering of enormous Legal fees, possible Stamp Duties, possible Capital Gains Tax and without other certainties being able to be proven potential catastrophic Tax consequences. This is a complicated situation, but my recommendations will serve to solve almost all of them. I can understand you possibly being unsure of the course of action you should take. If so, I implore you to discuss it with others, ……I implore you in the strongest terms to accept my advice and put this plan into action.

55. On the first page of the letter there is a handwritten annotation by the deceased: “Brett This is from Colley. It may help your knowledge. I will not be changing anything. Besides I do not have the cash. Dad”.

56. On 19 May 2011 Mr Colley sent a further letter to the deceased:

Additional CONFIDENTIAL advice and recommendations regarding restructure

This letter is intended to be blunt comment on the whole situation and something that you may wish to keep on file or perhaps you may consider it prudent to destroy it after fully considering its contents….

…..

In addition, Interest paid on Mortgages always seem to be paid excessively by some entities and not nearly enough by others…I smooth the wrinkles…to do otherwise would almost certainly see the Tax Office raising a flag due to the unusual Interest Claim.

This massaging of the Financial Statements has been a real concern of mine in the event of your demise.

57. On 20 May 2011 Mr Colley sent a memo to the deceased acknowledging receipt of a fax from the deceased and continuing, “So far, have not had the opportunity to give it any more than a cursory glance. My first impression is that you are still trying to create a reality again ‘shuffling the deck chairs’”.

58. On 22 May 2011 Mr Colley wrote again to the deceased:

If you do not take my advice, I fear it will be very costly in many ways.

I have read the ATO Letter. The BRG Trust GST Registration should never have been cancelled. However, it may not matter if the Gross Rents are Less than $75,000 and if the Trust is not receiving Rents from Commercial Properties. (as you are aware, GST is chargeable on Commercial properties only and GST can only be claimed on expenses directly related to such Commercial Properties).

There is not even just one positive reason to keep the current structure of Companies, particularly Breda Pty Ltd.

59. On 16 August 2011 the deceased sent the defendant a fax regarding the deceased’s “whole of life” policy with a handwritten note: “Dear Brett, For you to collect on my Demise Dad”.

60. In October 2011 the deceased wrote to the National Australia Bank (NAB) noting that the defendant would be the sole signatory of a new account with NAB in the name of Breda Pty Ltd.

61. On 26 April 2012 the deceased sent the defendant a fax:

Dear Brett,

The BRG Trust Land tax

Paid this February was $108,814.40.

Should the Trust Continue or call a Halt.

Check the site at 106 Parrawerra Road, Taren Pt.

The proposition is the BRG Trust owns the block of dirt, … when it is finalised in about 12 months Rent will then commence. It is supposed to be a Melbourne Hardware wholesaler.

The worst that can happen, I suppose, is to be left with vacant block of dirt, & perhaps a half built building.

Hope your operation has healed & you are feeling better now.

Best wishes, Dad

62. Sometime it seems around the end of April 2012 Mr White received a handwritten note from the deceased stating “Gary, I trust you can decipher the writing… Please do in ### legal terms. Each of my children have been given gift of real estate…” The deceased attached a handwritten will. In it he noted, “I have already distributed the majority of my daughters’ inheritance”. In this judgment “##” is used to indicate sections of handwritten notes which are indecipherable.

63. Mr White prepared a new will and on 9 May 2012 faxed it to the deceased with a two page letter containing some further questions for him in relation to the will. On 11 May 2012 the deceased sent Mr White a fax consisting of a handwritten page headed, “Your Questions Re Will”, and a copy of Mr White’s 9 May letter on which he had made handwritten comments.

64. On 12 May 2012 the deceased sent Mr White a fax containing a further suggestion for amendment to the will, “is it possible at my demise to give 127 Elouera Rd. to my granddaughter Tahnee Carroll. She is residing in a flat there now”. The deceased made further handwritten amendments on the draft will which he sent to Mr White on 6 June 2012 and 14 June 2012.

65. The deceased executed a will on 15 June 2012. This is the will the defendant propounds in the alternative to the 1 February 2010 will. The main differences between this will and the 1 February 2010 will are:

1. The inclusion of some of the deceased’s grandchildren as beneficiaries (Tahnee and Tyrone, Janine’s children, and Riordan and Grayson, Melinda’s children, aged respectively at that time, 23, 20, 18 and 16);

2. The residual estate which had formerly been split between the deceased’s four surviving children equally was given entirely to the defendant;

3. A property at 299 Woolooware Road and ownership of Naladon Pty Ltd were not mentioned but had been dealt with in the 1 February 2010 will; and

4. Jamell Technical Publications Pty Ltd was added and allocated to the defendant (although it was a trustee and did not own any assets in its own right).

66. There is a copy of this will in evidence with the word “REVOKED” written across the second page.

67. On 18 June 2012 Mr Colley sent a letter to the deceased enclosing ASIC Form 361, Registered Agent Ceasing to Act, for each of the companies:

• Barton Press Pty Ltd

• Breda Pty Ltd

• Castetag Pty Ltd

• Jamell Technical Publications Pty Ltd

• Motasea Pty Ltd

• Naladon Pty Ltd

• Neufreund Money Management Pty Ltd

• Ramon Publications Pty Ltd

68. In the letter Mr Colley said:

I have advised you of certain implications before, but please allow me to repeat myself and advise again. Lodging a form with ASIC does not create a legal act, it simply records certain actions that the Directors have taken or events that have occurred that must be advised to ASIC and which require outside the control of the Director/s. Actions that require advice to the ASIC, usually are for decisions made by the Company or the Director/s and such decisions are backed up by meeting minutes evidencing such decisions.

…

Please do not make hasty decisions without talking to me to get some idea of implication. I would love to offer you simplistic solutions to achieve your wishes, but there are none that are simple and completely without cost that I can see, and I feel confident that such do not exist. We can minimise the cost if we are careful and do not take what might seem like simple actions and trigger some crippling debt obligations.

69. A Discharge Referral note dated 10 July 2012 records that the deceased was admitted to Kareena Hospital on 26 June 2012 until 3 July 2012 for drainage of a facial abscess and removal of a tooth. A Nursing Discharge Summary/ Transfer Form dated 3 July 2012 also records that the deceased was admitted on 26 June 2012 due to a tooth infection.

70. On 27 June 2012 Mr Colley sent a letter to the deceased:

Please let me assure you that I am fully aware that you do not want to leave problems for your children into the future. In fact that is a subject that constantly presents itself to me and is at the forefront of my mind whenever I work on yours or your daughters matters

71. A Progress/Clinical Note dated 29 June 2012 records that the deceased “told staff that he doesn’t want daughter Janine to visit”.

72. Emergency Documentation notes from Sutherland Hospital dated 6 July 2012 record:

Patient presents C/O confusion last few days. Patient quite aggressive, accompanied by three family members, very resistant to any intervention…. patient is very rude and confuses and refusing all treatments and want to go home…seen by doctor thinks he has gi bleed hb 79.

73. A Discharge Referral Baseline document dated 6 July 2012 records that the deceased required a CT Scan for “acute confusion” and CXC for “confusion”.

74. In a Progress/Clinical Note dated 7 July 2012 nursing staff recorded at 21:00, “Difficult Pt. Believes he was kidnapped by his children and forced here.” Another note recorded at 09:40 states, “Pt uncooperative with ##”.

75. A Progress/Clinical Note recorded on 8 July 2012 at 10:40 states, “Pt is resistive to care – Pt refusing to have bloods taken despite being informed of the importance of having these done”. Further at 13:00, “Pt refusing monitoring…patient seem orientated to time and place but is making sporadic accusations re hospital and then talking about people outside”. A later entry states, “patient remain agitated and aggressive at times can be confused and vague at times inappropriate re conversations”.

76. The Progress/Clinical Notes from 9 July 2012 include a doctor’s note:

Pt verbally aggressive. Pt wishes to d/c against medical advice. Informed of findings of gastroscopy – informed of risk of death w/o 72 hours of [PPI?] – pt declining another 24 hours of [PPI]

Pt still wishes to d/c after the meal

77. At 11:30 nursing staff recorded, “Pt refusing to have bloods collected this AM”. At 14:30, “Pt ...agitated at times… Pt wanting to d/c but after discussion with Dr’s & daughter (Janine), he has decided to remain in hospital”. And further at 20:35, “States is leaving hospital tomorrow, regardless of what doctors say”.

78. The Patient Handover Care Plan dated 9 July 2012 stated, “Restart warfarin tomorrow”.

79. The deceased was discharged from Sutherland Hospital on 10 July 2012. A Discharge Referral Note of that date includes the following:

Melville Gooley presented to this facility with a 3 day history of melaena

Initial CDA notes state family were concerned about confusion last night…pt was initially refusing intervention, wanted to leave hospital, but was talked to by his daughters and agreed to medical treatment

During this admission it was noted he refused blood tests and it was difficult to monitor Hb and progress. He remained afebrile and HD stable. He remained enthusiastically discharge and leave hospital throughout the admission, but after discussion with his daughters this was understood to be his normal behaviour and not any acute behavioural change

80. The Discharge Referral Baseline document of the same date noted, “Follow up with a GP in 3-5 days for review and restart warfarin”.

81. On 31 July 2012 the defendant sent a letter to Dr Barrett stating that he saw his father at 10.15pm on 31 July 2012. Suggestions for follow up included:

•   Check MSU Cts re mental decline and especially seeing catharised in hospital.

•   ?Cerebral MRI/CT R/O micro emboli re: mental state

82. Also on 31 July 2012 the deceased was found delirious in the foyer of his block of units by other residents and on 1 August 2012 the defendant had the deceased admitted to St George Private Hospital. In a St George Private Hospital Patient Falls Screening Tool dated 1 August 2012 the answer to the question, “Is the patient confused? (i.e. unable to make purposeful decisions, disorganised thinking and memory impairment)”, was checked “yes”.

83. On 1 August 2012 a nursing note was made in St George Private Hospital Progressive Patient Notes stating the deceased was “pleasantly confused”.

84. On 3 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording the deceased was “disoriented [with] times”. He had a fever in the morning (of 40 degrees) and his creatine was said to be up (135). He was given Phenergan for rashes that day. Further notes from that day record:

[before 17:00] septic work up… blood culture, MSU, blood…

[17:55] systolic murmur? – old or new. Called Dr Smith.

… concern infective endocarditis…

85. On 4 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes stating that the “Patient has been disoriented and confused overnight. Wandering about and taking his gown and ? off frequently”. At 15:00 he was said to have been “coherent”.

86. On 5 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “yet another unsettled night. Patient up wandering about his room naked removing his telemetry. Patient may benefit from a geriatric assessment”. A later entry reads, “bit confused/disorientated at times”. At 21:30 his temperature was recorded as 38.7 degrees.

87. On 7 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “confusion of unclear cause …currently orientated, speech normal, does not appear confused”. The notes also record the deceased had a staph infection.

88. On 8 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording the deceased “appears confused at times”.

89. Also on 8 August 2012 Melinda signed an acceptance of appointment as Enduring Guardian.

90. On 9 August 2012 Dr Smith noted in the St George Private Hospital Progressive Patient Notes that the deceased was “much improved in all respects… afebrile… needs CT scan of maxilla”. A later physiotherapy note states, “N/staff report he can get confused and would prefer patient to supervise mobility around ward on a daily basis”. A nurse recorded, “patient needs reminding that he has a picc line insitu tends to forget it is there. Seems confused at times”.

91. On 11 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording that a nurse “walked in to patients room and found picc line hanging off the IV stand. Patient stated he couldn’t remember pulling it out”.

92. On 12 August 2012 a nursing note was made in the St George Private Hospital Progressive Patient Notes recording, “Picc line on floor. Patient denies taking out”. A later entry states, “Patient remains alert and pleasantly confused ++… pts body reddened/rash- QV cream applied to reduce itching”. And at 18:00, “can Phenergan be changed to something less sedating?”. A note made at 20:00 states that “Phenergan ceased” and Telfast was administered. The deceased was “less itchy this shift”.

93. On 13 August 2012 Dr Smith excluded a diagnosis of endocarditis.

94. On 16 August 2012 the deceased was transferred to President Private Hospital for rehabilitation. A President Private Hospital Falls Risk Assessment Tool dated 16 August 2012 records, “some confusion”, in relation to the deceased. President Private Hospital Clinical Notes of the same date note, “some confusion and [decreased] hearing.” The note also incorrectly states that the deceased’s medical history included endocarditis.

95. Further on 16 August 2012 the deceased underwent an initial assessment with the Functional Independence Measure (FIM). The deceased was said to have required supervision with aspects of communication including his comprehension and expression and with aspects of his social cognition, including social interaction, problem solving and memory.

96. President Private Hospital Clinical Notes dated 17 August 2012 record that the deceased was “living independently but ? struggling with this and considering services on discharge”.

97. President Private Hospital Clinical Notes made on 18, 20, 21, 22, 23, 25 and 26 August 2012 record that the deceased was “alert and oriented”. He had a fall against the wall in the bathroom on 21 August and sustained two skin tears to his left upper arm.

98. In a President Private Hospital Case Conference Management Plan dated 24 August 2012 a note under the section headed, “Medical/nursing personal care, ADL’s”, reads, “? Frontal”.

99. President Private Hospital Clinical Notes dated 27 August 2012 include an occupational therapy note stating, “Completed car transfers. Client needed constant prompting this pm 2 * transfers. Spoke with Professor Smerdly – To do Frontal Battery assessment in / 17”. An ACAT Assessment completed that day states the deceased had a “history of confusion and disorientation when unwell in hospital”.

100. A nursing note in the President Private Hospital Clinical Notes dated 28 August 2012 records that the deceased was “capable of washing self but required verbal prompting with washing certain area of body, drying and dressing self”. An occupational therapy note states, “Started to complete Montreal Cognitive Ax. Client kept dozing off, Client scored 7/11 so far. Client score of 26/30 is considered normal. Daughter requested info on private services”.

101. Occupational therapy notes from 29 August 2012 document a Montreal Cognitive Assessment (MoCA) score of 19/30 (where scores above 26/30 are considered to fall within a “normal” range). However closer examination of the response sheet reveals a number of instances of incorrect scoring, giving the deceased a higher mark than he should have had. The correct mark was 17 or 18/30.

85. In a Referral Sheet addressed to MJ Modification Services dated 29 August 2012, under the heading, “Additional information”, the box “cognitive issues/dementia” was checked.

86. The deceased was noted to be “dithery” at the microwave that day. On 30 and 31 August 2012 he was noted to be “alert and oriented”.

87. On 3 September 2012 Mr Colley emailed Melinda:

I have had a quick look and I am not yet able to find my letter advising that your fathers will should include a provision to make you his replacement ‘Appointor’ to the GFT

That is not one of those things that need to be considered essential. Goold Enterprises Pty ltd is the Trustee and as you own and control that company, there seems little need for that added power. It is just something that I consider is a little better to give you absolute control.

If I can find that written advice I will forward a copy to you.

105. The deceased had day leave from President Private Hospital on 4 September 2012. A President Private Hospital Acknowledgement of Responsibility Form dated 4 September 2012 and signed by the deceased evidences this.

106. According to a Sutherland Aged Care Client Record dated 4 September 2012 the deceased needed help or supervision with self-care, movement activities, communication, health care tasks, transport, domestic assistance and meals. The following issues were also recorded:

acute & chronic ischaemic heart disease

short term memory loss

malaise & fatigue…

History of confusion and disorientation when unwell in hospital…

Occasional disturbed sleep/insomnia, confusion, disorientation to time and place and has regular short term memory problems…

…easily flustered, some short term memory loss evident at assessment dependant with all domestic tasks, transport, shopping, needs assistance with meals and medications

107. The deceased made a Will dated 4 September 2012. Three changes were made by the 4 September 2012 will to the 15 June 2012 will:

1. Aleta and Melinda were added as joint executors together with the defendant;

2. Janine’s children were removed as beneficiaries;

3. The residuary of the estate reverted to being shared equally between the defendant, Aleta, Melinda and Janine.

108. The deceased, Melinda and Aleta also signed an Enduring Power of Attorney on this date. Mr White says he does not have “any recollection of the circumstances in which [he] received instructions for these documents, or any notes or records relating to them” (Affidavit of Gary Alan White, 2 November 2018 [22]).

109. The deceased made the following handwritten note it seems around 2 and 4 September 2012:

Fathers Day

Aleta Sunday 2/9 Aleta Patrick Xander arrived to invite me to lunch at Cronulla Rest Fathers day @ Simones on the Park Cronulla beach Simones on the Park looks over Cronulla Beach BG at the Hospital with Nathan & Elise he said Simone was studying at home & wife Christine had gone away with 10 girls for weekend. Aleta invited him to come & have lunch for 2nd time because there was a lot space at table & then 3 of them came after Aleta’s invite 2nd time & Janine arrived later with Charlton It was freezing & kids were playing in the park & at one stage I walked along the esplanade with daughter Aleta BG put me in wheel chair & took me off in a hurry to toilet Patrick Son in Law had to check toilets for me I was absent for a long time On the way back took with me in wheel chair Charlton jumped in pool

4/9/12 Tuesday had ACAT assessments AM & Aleta was present & 2 ladies Elizabeth & Rhonda botts Interviewed me to assess if ready to go home & if eligible for transitional care at home 4/9/12 Professor Gonski decided on 4/9/12 to discharge me on 5/9/12 on 4/9 @ 1pm Melinda took me out for fathers day coffee & Aleta came too. We went to Nth Cronulla beach & then after went to Whites office to sign leases. etc 1pm only day White was in Sydney & available at 5pm Aleta was told I was going home next day.

110. The deceased was discharged from President Private Hospital on 6 September 2012.

111. He was admitted to Sutherland Hospital on 12 September 2012. Notes relevant to the deceased’s social cognition, state of confusion, memory and mental state were recorded in a Sutherland Hospital Admissions and Discharge Risk Assessment document. The answer to the question, “Is the patient likely to have self care problems? (e.g. walking, bathing, dressing, wound dressings)?” was checked “yes”.

112. In the part relating to “Cognition”:

• The answer to the question, “Changes to memory, concentration, thinking, decision-making?”, was checked “yes”.

• The answer to the question, “Is the patient oriented to Time, Place, Person?”, was checked “no”.

• The answer to the question, “Are there evidence of previous episodes of delirium/ confusion/wandering?” was checked “yes” and the word “confusion” is circled.

113. Further in the part relating to “Mental State” the answer to the question, “Is the patient disorientated? (i.e. lacking awareness, being mistaken about time, place or person)”, was checked “yes”.

114. On 12 September 2012 the deceased underwent a CT scan. The CT Brain Final Report of that date recorded that a cerebral CT scan had revealed evidence of a recent right frontal lobe infarct:

There’s a new region of hypo density in the subcortical and deep white matter of the right frontal lobe which was not present previously… It is thought to represent an infarct which has occurred since the previous study.

115. Sutherland Hospital Progress Notes dated 13 September 2012 state, “Pt alert and vague”.

116. The deceased was transferred to Kareena Private Hospital on the afternoon of 13 September 2012. Kareena Private Hospital Notes dated 13 September 2012 note, “NB Cerebral CT Scan… frontal lobe, other belat. Chronic Δ”. A nursing note also records, “PT displaying signs of confusion”.

117. On 14 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 18:30 that “Pt at times becoming irritable and verbally abusive”.

118. On 15 September 2012 Dr Dedousis recorded in the Kareena Private Hospital Notes:

Pt well known to me

Social Issues

Discussion re: Eventual home. Need to talk w/ family re: their favourite rehab place.

119. On 15 September 2015 a note was made in the Kareena Private Hospital Notes recording dizziness.

120. On 16 September 2012 there was a chain of emails sent between Melinda and Mr White, copying in Aleta and Mr Colley. Melinda set up a meeting to be held at Kareena Private Hospital on 19 September 2012 with Aleta, Mr Colley and Mr White for the signing of papers which appear to be powers of attorney and a transfer and contract.

121. On 17 September 2012 a note was made in the Kareena Private Hospital Notes: “Pt full care with ADLs… Pt occasionally confused.” A nursing note made on the same date states, “Alert, confused @ times… both legs still erythematous… visited by daughters”.

122. Also on 17 September 2012 the defendant made his first application to the Guardianship Tribunal. The health related factors said to affect the deceased’s decision making capacity at that time included:

delirium resulting in reduced mental capacity, atrial fibrillation, cerebral small vessel ischemia, rheumatic heart disease with mural thrombus in the past causing transient ischaemic attacks.

123. The application was to have the deceased discharged to the defendant’s care for one to two months at Drummoyne. The reason being that while the deceased was under the care of Aleta and Melinda he had seven hospital admissions between June and September 2012 with his return home lasting only four days before he had a fall fracturing his hip.

124. On 18 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 14:00 that the deceased was “confused/cooperative… visited by daughter”, and at 21:00, “pt confused this shift, pt becomes easily agitated and worked up”.

125. Also on 18 September 2012 Dr Smith sent a letter to the defendant identifying the need for rehabilitation and respite and stating, “in the very long term he may well need more intensive support which might not be able to be adequately instated at home but this remains to be seen.” The letter also noted that the deceased:

• Was admitted to St George Private Hospital in August with a degree of heart failure related to his rheumatic mitral valve stenosis;

• Went to President Private Hospital for a period of rehabilitation and went home; and

• Was subsequently admitted to Sutherland Hospital with cellulitis and was transferred to Kareena.

126. On 19 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 12:00 that “Pt showered full assistance… Pt at times inappropriate”. Discharge planning notes made at 14:10 said:

Met w/ daughter Aleta to discuss concerns and options for care. Spoke also with Mr Gooley to understand his requests. Family met also with CEO. Dr Smith contacted – certainly not ready for discharge

– will need lots of planning and services in place before consider discharge

127. The following note was also made: “Pt confused ++ tonight, kept saying want to go home”.

128. On 19 September 2012 a Kareena Private Hospital Clinical Plan of Care document was completed. The deceased’s cognitive status was checked as “not intact” (having been intact on 13-18 September).

129. On 20 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 00:45, “Pt confused”. At 14:25 a nurse recorded, “on and off confusion but sensible when established rapport. Patient do not want to go home in his son’s place as he stated”. At 21:30, “PT slightly confused this shift”. And 22:45, “…rashes present on all body… itching too. Patient and other staffs stated this started 3 days ago. Bruises on back. Patient is on antibiotics”. And at 22:45, “Patient was very anxious…”.

130. On 21 September 2012 a Kareena Private Hospital Medical Ward Occupational Therapy Assessment was completed. It appears to set out what assistance the deceased would need if he was to be discharged. It was completed by M Zammit. Next to the question heading, “cognition/emotional status (mood, orientation, memory, planning etc)”, the answer given was “confused”.

131. Also on 21 September 2012 an occupational note was made in the Kareena Private Hospital Notes at 15:10 stating, “PT’s cognition unpredictable i.e. unable to follow 3 step commands at times”. An earlier nursing note recorded at 14:30 states, “Pt showered full assistance”.

132. On 22 September 2012 a note was made in the Kareena Private Hospital Notes at 04:00 that the deceased was “Mild confused earlier this shift… itchy, moisturising cream applied all body… Still confused”. Dr Dedousis noted later that the deceased was “alert” and “orientated”.

133. Also on 22 September 2012 there was an email chain between Mr Colley and Melinda which included a letter from Mr Colley to Melinda and Aleta explaining why an account was issued to them rather than the deceased. It set out that Mr White considered that Melinda and Aleta may have been entitled to reimbursement:

My assumption as to the reasoning is that if the person subject to control by the Guardianship Documents is, perhaps, not mentally capable, the whole purpose of such a document, then there would be some question over the correctness of rendering such person with such costs.

134. Melinda said in an email to Mr Colley:

Mr Colley,

As per telephone conversation you had with Aleta this afternoon. I have forwarded you this email with attachments from Gary White.

It involves a lot of searches and work in relation to all of our fathers companies and properties.

For the record I am presently attending to the day to day running of my father’s companies whilst he is in hospital, and trying to prepare tax returns for 2012 without remuneration. This takes a considerable amount of time. I would estimate at least 2.5 hours every day whilst in hospital.

135. On 23 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 12:00 that the deceased “Has remained confused most of shift”.

136. On 24 September 2012 Dr Dedousis recorded the following in the Kareena Private Hospital Notes:

family conference

PT to go to rehab at Calvary

able to make own decisions re-own financial, medical and residential issues.

137. It is not clear how the deceased’s decision making abilities were evaluated.

138. A discharge planning note made on the same day recorded:

Family conference this morning with three daughters, Dr Dedousis, Dr Smith and myself and later Mr Gooley. Decision made to apply for rehab at Calvary Hospital under Dr Dedousis’s referral attended. All in agreement including Mr Gooley.

139. On 24 September 2012 Dr Barrett sent a letter to the Guardianship Tribunal stating that the deceased was of sound mind. He also stated that the last occasion on which he saw the deceased was 11 September 2012.

140. Janine indicated in a chronology that she prepared (and which her son, Tyrone, located on her computer after her death: see Affidavit of Tyrone William Philip Gooley-Carroll, 20 March 2) that on 24 September 2012 Dr Dedousis said during a meeting that the deceased only had a 40% chance of survival and informed everyone that no lawyers or accountants were to be in the hospital again.

141. On 25 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 22:25, “PT is alert but can be confused at times”. The deceased made a handwritten note:

I MW Gooley give permission to my daughter Janine Gooley to seek a legal representative to be power of attorney...my other ## children from taking control of me and my estate to oversee that and will split 4 ways. I do not want to go into a nursing home. I want to go to Tonkin Street Unit 6 Cronulla.

142. At some time before 26 September 2012 a Rehabilitation Services Referral to Calvary Rehab Unit was completed by Kim Boyd, the discharge planner for Dr Dedousis (the patient was admitted to Calvary Hospital on 26 September 2012). In response to the question, “Does the patient have any communication difficulty?”, the answer given was “vague at times”. Underneath the heading, “Outline any cognitive and/or behavioural issues”, the following was written: “short-term memory problems at times. Cognition unpredictable at times”.

143. On 26 September 2012 a Calvary Healthcare Sydney Discharge Summary Nursing form was completed by S Lam, an “RN”. The deceased’s diagnosis was recorded as “fall with fracture of the left greater trochanter and post- operative confusion and delirium…” The section of the form relating to “Relevant Medical History” was completed with the words, “AF. OA. HT. Dementia”. Next to the phrase “cognitive status”, where the options to select were “oriented”, “disoriented”, “alert”, “drowsy”, the words “oriented” and “alert” were circled and a handwritten annotation, “can be vague”, was written above those words.

144. Also on 26 September 2012 the deceased obtained a score of 20/30 on a Mini Mental State Examination (MMSE). The Calvary Hospital MMSE form records that he was wearing glasses and the test was performed in a quiet room. His scores were as follows:

Orientation as to year / season / date etc: 1/5

Orientation as to where he was: 5/5

Registration: 3/3

Attention / Concentration: 4/5

Recall: 0/3

Language: 7/8

145. He was orientated to the month but not the day of the week, year, season or date. He was orientated in place. He could immediately repeat the names of three objects but was unable to recall any of the objects minutes later. He could spell “WORLD” backwards with one error. He could name a watch and a pen. He could repeat a well known phrase. He could close his eyes. His response to a sentence writing task was notably concrete in that he copied the instruction, “Any complete sentence”. There was evidence of visuospatial impairment in his copied drawing attempts. His clock drawing showed poor planning and his attempt to place the clock hands showed further evidence of concrete thinking (with the words “20 to” inserted in place of the minute hand).

146. A nursing note made in Calvary Health Care Sydney Progress/Clincal Notes also records, “patient alert and confused. MMSE 20/30”. A further nursing note was made: “Not listening to any form of instruction or information. Totally non-compliant with call bell use. ## time spent explaining phone and telephone use protocol to find patient talking into telephone ## times with no one there”.

147. The defendant sent a letter dated 26 September 2012 to the Guardianship Tribunal outlining his attempt to visit the deceased on 24 September, the fact that his father initially greeted him and that he was later advised by the charge sister to leave the hospital:

When I returned to my father’s room, I was troubled to see his confusion and told him that I had made the appropriate appointment to see him and while on one hand he was greeting me, on the other hand, it would appear that he had rung my sister Melinda Foley who had advised him not to talk to me. The Charge Sister confirmed that I had sought permission to see him. I then left as I did not wish to upset my father.

148. On 27 September 2012 a nurse recorded in the Calvary Health Care Sydney Progress/Clinical Notes, “patient alert and confused…non-compliant with buzzer”. The deceased made a handwritten note addressed to Dr Dedousis:

Dr Dedousis

I MW Gooley do not want any of my medical records given or supplied to Dr Brett Gooley because he is not my doctor.

[signed]

and I do not want my son Brett Raymond Gooley to visit me in hospital unless specifically requested by me.

[signed].

149. On 28 September 2012 a nurse recorded in the Calvary Health Care Sydney Progress/Clinical Notes at 17:45, “WLGillet AHNM T/C from Dr Dedousis re: pts wishes for son not to have access to Pt. Staff informed. Notes now kept in medication room. A further note was made at 11:30: “Patient [alert?] though forgetful @ times”.

150. On 29 September 2012 a note was made in the Calvary Health Care Sydney Progress/Clinical Notes that the deceased had attempted to shower himself at 03:30, apparently unaware of the time. At 05:40 he was very itchy and sorbolene cream was applied.

151. On 1 October 2012 he was noted to be “alert and orientated”.

152. On 2 October 2012 the following note was made in the Calvary Health Care Sydney Progress/Clinical Notes:

S/B Dr Dedousis

Dtr Janine Gooley present.

…

Mr Gooley’s son not allowed to enter hospital or access any records. If he enters hospital security authorised to escort him out of hospital. No doctors from outside allowed to do any kind of assessment on pt whilst in hospital.

Phone calls to other 2 daughters re [mind sound?] tomorrow @ 10.30am. They are welcome to meet Dr Dedousis if they wish to do so.

153. A Rehab OT Initial Assessment noted the deceased was independent with his medications, “however unsure if he forgets”. The deceased was also noted to require “prompting to recall”.

154. On 3 October 2012 Karen Edwards, “CEO/DON”, recorded the following in the Calvary Health Care Sydney Progress/Clinical Notes:

Phone call received from Mr Melville Gooley’s son (Dr Gooley) requesting to talk to me. I visited Mr Gooley to discuss this with him and clarify his wishes. Mr Gooley was very clear that he did not wish to have his son visit him whilst in Calvary nor did he consent to any medical review organised by his son. This conversation was witnessed by Ms Susan ## Director of Mission. I will contact Mr Melville Gooley son and confirm a need to respect his father’s express wishes in this matter.

155. A note in the Calvary Health Care Sydney Progress/Clinical Notes also records that the deceased was seen by “Dedousis, Ranjan and Miller” at approximately 11:30 on 3 October 2012:

Long discussion between PT Dr Dedousis and two daughters who are power of attorney for PT:

-PT’s son has gone to the guardianship Tribunal without discussing with PT’s treating doctors.

-Concerns raised by daughters re: this

-PT is currently undergoing active medical management

-PT wants to be discharged to own home once ready

-PT is mentally/cognitively competent as per Dr Dedousis

-note meeting with CEO and witness this morning

-PT and daughters advised to get legal representation before going in front of guardianship Tribunal to protect rights/best interest of PT

156. Later that day Ms Edwards recorded:

Dr Gooley (son) requested a meeting with me to discuss his father. Meeting undertaken this afternoon with Susan Uhlmann (Director of Mission) in attendance. File note written and signed regarding meeting. (TRIM Reference #T12/1302)

157. The file note made by Ms Uhlmann recorded that Ms Edwards informed the defendant that the deceased would not agree to be examined by a neuropsychologist or to be visited by him and that the hospital would respect his wishes. It also states:

Dr Gooley asked if he could visit his father accompanied by both Ms Edwards and I so that Mr MW Gooley could be asked to confirm his wishes in Dr Gooley’s presence, as he believed Mr Gooley was being coerced. Ms Edwards confirmed that Mr MW Gooley has been very clear in expressing his wish that he not be visited by his son, and that we had a duty to abide by his wishes. Ms Edwards suggested that I visit Mr MW Gooley and ask him if he would find such a visit acceptable.

158. The note then sets out that the defendant waited in the waiting area while Ms Ulhmann attempted to seek instructions from the deceased but that she did not go into his room as both of his daughters were present. Ms Edwards informed the defendant of this and he left shortly afterwards.

159. The defendant also made a handwritten note of this meeting. It records he was told:

• Dr Jeanette Stewart would not be visiting his father; “that would not be taking place in this hospital”;

• Mr Gooley does not want to be examined by any other Drs;

• Mr Gooley does not want to see Dr Gooley.

160. His note also records that he asked if this advice could be confirmed with his father and that Ms Uhlmann attempted to do so but reported back that both of his sisters were with the deceased and it was therefore inappropriate to ask.

161. A note made at 14:30 on the same date records that the deceased was “alert and orientated.” A social work assessment was conducted with Aleta present at 15:30. It notes that the deceased had been diagnosed as being competent in making his own decisions at the time “as per Dr Dedousis”. It also records:

informed by Dr Dedousis that patients son Dr Gooley has submitted an application to the Guardianship Tribunal – hearing scheduled for 17/10/12. Also noted entry in patients file from Calvary CEO that PT does not wish for his son to visit him whilst it Calvary.

…

He reported… All contact for d/c planning purposes to go by his two daughters Aleta/Melinda. PT clearly stated he did not want S/OT to contact his dtr Janine regarding his care…

162. On 3 October 2012 Dr Dedousis sent a letter to Jill Forrester, Guardianship Tribunal Officer, in relation to the deceased’s care situation. He stated that the deceased’s delirium had settled as his cellulitis settled. There was no mention of confusion:

There are no issues with regards to delirium, infection and his cardiac failure is currently stable.

From the clinical perspective my opinion as a Geriatrician is that Mr Melville William Gooley is able, from the cognitive perspective, to make appropriate decisions with regards to finances, medical and residential care.

I do not believe [power of attorney and enduring guardianship] needs to be enacted as Mr Melville William Gooley is able to make his own decisions regards to his financial medical decisions.

…

I am quite concerned and upset having heard about this guardianship application by Dr Gooley with regards to his father by a distressed phone call from a family member last Friday night. At no stage has Dr Gooley spoken with me, tried to contact me directly or warn me about his concerns which would lead to a guardianship application. There has been one letter received by my office dated 24 September 2012 requesting a medical report on his father’s condition and in discussion with Mr Melville Gooley I have been instructed not to divulge any clinical information and have written back to Dr Gooley stating this.

I am somewhat perplexed as to why the guardianship hearing is going ahead.…

163. Also on 3 October 2012 the defendant sent a letter to the Guardianship Tribunal seeking orders for a neuropsychiatric assessment of his father.

164. On 4 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes that the deceased was “alert and orientated” at 07:00 but “alert and confused, c/o diarrhoea overnight” at 15:45.

165. On 5 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes stating:

Dr Gooley not to be allowed into hospital

Mr White is PTs lawyer

Pt to stay as inpt while guardianship tribunal hearing taking place

166. On 8 October 2012 a social work note was made in the Calvary Health Care Sydney Progress/Clinical Notes:

Discussed bed move with the pt and dtrs advised pt that his son was allegedly cited on ward today. Pt confirmed he does not wish his son to visit him in Calvary. Explained to pt that it would be beneficial to move his room to be closer to NSG station where staff can monitor visitors – patient and daughters agreeable to same

167. On 9 October 2012 a meeting of shareholders of Motasea P/L was held. The minutes recorded that Ms Janine Gooley was appointed as director of Motasea. The deceased signed the minutes as chairman. Janine was removed as a director three months later in January 2013. The deceased was noted to be “alert and orientated” by a nurse at 15:30.

168. On 10 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes regarding the deceased’s attendance at “breakfast club”:

Pt did not recall planned assessment and denied being informed.

Pt was oriented to set up by OT, however needed prompting to initiate collecting breakfast items

…..

Pt required A to operate toaster and kettle due to difficulty w/ problem-solving skills despite several prompts. Pt attempted to use metal utensil to get toast out of toaster was still plugged in and electricity on.

169. On 12 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes stating:

Pt discussed concerns regarding his son trying to visit him once he is discharged & requested OT taken to the police station on the return from the home visit. Issue further discussed with his daughters who advised that this would be discussed further following Dr Dedousis’s meeting with PTs son

170. Also on 12 October 2012 Michelle King, Occupational Therapist, completed a Calvary Health Care Sydney Occupational Therapy Home Assessment document in relation to the deceased. In it she noted that the deceased expressed concern about his son, that he did not want his son to visit him and that he wanted to be taken to the police station to discuss options for restricting his son’s access to him. It was also noted that:

Cognition: mini mental status examination on admission 20/30. Patient is required prompting with problem-solving however was very receptive to prompting to facilitate safety awareness.

171. On 15 October 2012 Dr Barrett sent a letter to Whites Lawyers stating that he last saw the deceased on 11 September 2012 and that on that occasion he did not notice any significant decline in his mental state or decision making. He did not explain how he assessed the deceased’s mental capacity.

172. On 16 October 2012 a note was made in the Calvary Health Care Sydney Progress/Clinical Notes in relation to the delivery of a letter from the defendant to the deceased via a third party. The note, which was made at 14:35, states the letter requested the deceased “see a clinical neuropsychologist”. It also said that the report could “never be used in any proceedings against you” and continued:

if she finds that you are cognitively impaired, I will proceed with my current application because you are being deceived and or manipulated by Aleta, Melinda and their advisors. If she finds that you are mentally capable and are aware of your situation, then I will withdraw my application’

173. The nursing note said the letter was provided to Dr Dedousis with the deceased’s consent and the conclusion was said to be:

Pts daughters Aleta and Melinda will be the only visitors to visit Mr Gooley.

Addit = patient also stated he will see his younger daughter, Janine if she visit him. He would consider the ‘AVO’ order and he will discuss with Dr Dedousis tomorrow.

174. A later note made at 15:00 records, “Discussed with NUM and nursing staff that pt should not be allowed to be contacted by any means by anyone other than his daughters Aleta and Melinda as discussed with pt and Dr Dedousis.”

175. The deceased was noted to be “alert and orientated” at certain times on 16, 18, 19, 21, 23, 26 and 27 of October 2012.

176. However on 17 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes in relation to the deceased’s attendance at “breakfast club”:

Pt required encouragement to attend. Pt did not recall planned Ax.

Pt prepared simple meal of cereal, coffee, toast. PT required verbal prompting to turn on toaster and observed to have ↓ problem- solving.

177. On 20 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes at 04:10:

Pt seems uncomfortable with nursing staff entering his room. Towels everywhere in the room…Pt wants door closed despite explaining to pt reason for having door open.

178. On 25 October 2012 a social work note was made in the Calvary Health Care Sydney Progress/Clinical Notes by L Moussallom in relation to discharge:

Dtr Aleta continued to express her dissatisfaction with d/c date – requested that pt stay in Calvary for another 2/52 so that they can continue to sort out legal/guardianship proceedings. Explained to DTR that this was not a valid reason to keep PT in hospital and that we would lose ###. Also advised that d/c was going ahead as per discussion with Dr Dedousis. Dtr also stated Calvary was ‘forcing PT to go home’ and he was petrified that his son would come to his house post d/c – advised dtr that Calvary staff could not control this or provide services to monitor this. Advised that this was a family issue and that if they wanted PT monitored 24/7, the family would have to provide this.

Outcome: after lengthy discussion with Dtr Aleta, she was still unhappy… And pleading for d/c date to be extended.

179. Also on 25 October 2012 Dr Dedousis sent a letter to Mr White in response to a request for information from Mr White. He stated that he had been involved in the deceased’s care on and off for three months and continued:

Mr Melville Gooley has consistently insisted that he does not want to see Dr Brett Gooley at any time or place. He has consistently refused visits and the interaction with Dr Brett Gooley, as a result this information has been passed on to the nursing and medical staff at Calvary Hospital and has been reconfirmed by the chief executive officer.

Most concerning to me over the past week and a half has been Mr Melville Gooley’s comments to me that he fears for his safety. He is asked to see the police on discharge because he fears his son Dr Gooley and what may happen after he leaves hospital. I’m not sure exactly what the details of these fears are as he would not elucidate any further. Certainly they have been mentioned in the presence of my team and also in the presence of his daughters. I have recommended to his family that they seek further advice from you with regard to these fears and the possible institution of an apprehended violence order should this be appropriate.

180. On 26 October 2012 an occupational therapy note was made in the Calvary Health Care Sydney Progress/Clinical Notes: “patient remains confusing…staff please aware patient has been turning on the taps in his bathroom and leaving them running fully”.

181. On 29 October 2012 there was an email chain between Aleta and Melinda and Mr White. In one of these emails Aleta wrote:

Please find attached – scanned copy of original letter from Dr Dedousis – hand written & signed at Kareena Private – 24 September 2012, now DATED.

He wrote this letter at Kareena – but didn’t date it. I asked him to date it tonight,

Thankfully he did – with the same pen that he originally wrote it with. I feel this is really important for Tribunal – because it was written at the same time in September – when Brett claimed that Dad was mentally incompetent & not of sound mind.

I also asked him to sign a copy of the letter he wrote – 25 October 2012.

Dr Dedousis seemed quite worried when he left today. He said Brett is very serious and determined.

182. The deceased was discharged on 30 October 2012.

183. On 31 October 2012 the defendant made a handwritten file note recording his conversation with Constable Ardus at Cronulla Police Station on that date:

MWG & 1 of 2 sisters…tried to issue an AVO – “no ground for” …

“MWG concerns were that I was going to call and put him in a car and take him to Drummoyne and he doesn’t want to go” (abduct).

184. Dr Barrett conducted a MMSE of the deceased on 31 October 2012. A hand written note at the top of the assessment sheet records a score of 28/30.

185. Also around 31 October 2012 the deceased made a handwritten note on instructions Tyrone made for Mr Colley in relation to “Tahnrone Pty Ltd”. The deceased wrote, “Mr Colley. Tyrone says company should be called Tytahn Pty Ltd and they should have 1 share each”.

186. Private Care Notes made during November 2012 suggest that the deceased refused deliveries and parcels sent to his home that he felt might be from family.

187. On 8 November 2012 there was an email chain between Mr White, Melinda and Aleta. At 5:49am Melinda sent an email stating:

Gary,

I have faxed the Power of Attorney & appointment of Enduring Guardianship to Dad…

188. In an email sent at 4:12pm Mr White stated:

As discussed this morning I enclose short summary of difference between power of Attorney and Appointment of Enduring Guardianship which your father should read carefully and try to recall…

189. On 10 November 2012 Mr White made a handwritten note regarding a telephone discussion with the deceased: “Trying to contact me – if trying to ring me in the office, it is Saturday!”

190. At some time in November 2012 the deceased moved from his family home in Cronulla to an apartment in Cronulla.

191. The deceased made a Will dated 12 November 2012. The changes brought about by this will were as follows:

1. The defendant was removed as an executor, with that role from this point forward being exclusively occupied by Melinda and Aleta;

2. The shares in both Castletag Pty Ltd and Decahill Pty Ltd which had previously been allocated to the defendant were divided between Aleta and Melinda;

3. Melinda was allocated all “shares” and any interest in the “Gooley Family Trust” and appointed as its Appointor;

4. Aleta was allocated any interest in the Dama Unit Trust.

192. The defendant withdrew his application in the Guardianship Tribunal on 13 November 2012.

193. At some time after 13 November 2012 a typed document titled “AVO” was created. It begins, “Points to refute BG claim- that there was an attempt to take an AVO out against him on 13 November 2012- AFTER the guardianship tribunal hearing”. Typed points include:

MWG was fearful that BG was going to forcefully remove MWG from his home at Cronulla and take him to Drummoyne against his will, once he was discharged from Calvary Hospital…

MWG was afraid of what might happen to him…

28 September 2012

BG serves Tribunal document on MWG & states that DR Stuart is going to neuro–psych test MWG prior to Tribunal and that BG will be taking him to Tribunal in his car…

194. The deceased made handwritten annotations on the document:

Each of my children wanted me to leave the big house at 299 Woolooware Road for a unit and since moving I have been having arguments, and trouble.

MWG NEVER TOOK AVO out over anybody! If it was not for my Daughters I would… threat and finish argument.

Dr Dedousis said he could not care for me once I left the hospital.

Dr Dedousis said he could not protect me once I left Calvary Hospital

Dr Dedousis told me not allow or take such a test. Once I left hospital he could not protect me. MWG

195. Seemingly shortly before 16 November 2012 a Private Care Note document headed “Confidential Job Information” was created. It states:

Has an estranged son Brett…

The carer is to ensure that Bill does not go out with either Janine or Bill’s son, Dr Brett Gooley, there are family tensions with family court proceedings currently happening…

Shopping and appointments Daughter Aleta normally takes him for blood test and GP Appts…

196. The Private Care Note for 16 November 2012 records the commencement of 24 hour care for the deceased. A note was made stating that the deceased required assistance to take off his support stockings and rub in cream, that the carer (who arrived at 6pm) made dinner and that the carer made his bed for him.

197. On 18 November 2012 a Private Care Note was made stating:

Janine asked her brother to try and admit Bill to hospital and to have Bill collected by ambulance. Bill was shocked when his son rang to say that Janine had informed him that their dad was not well and needs to go to hospital….Melinda and her husband came over immediately to Bill, to establish what Janine and her brother were doing…I took over answering the phone to filter out unwanted calls [note then records that carer refused to pass Janine’s call through] ….(…Bill refuses to get any more calls from Janine or the brother) in future, visitors and phone calls will be screened on Bill’s behalf – Bill is happy with plan.

198. On 19 November 2012 Private Care Notes were made recording that the carer assisted the deceased to put on his shorts and stockings and that:

Bill instructs me to tell Janine…to call and let her sisters know and they can ring their brother. Bill refuses to phone or talk to Janine or the son. Bill gets very anxious when Janine phones.

199. On 20 November 2012 Whites Lawyers sent a letter to Janine stating, “Mr Melville William Gooley (‘Bill’) has requested that you refer any business correspondence or inquiry to this office rather than direct to your father.”

200. On 23 November 2012 a Private Care Note was made recording that “Bill refused to talk to Janine over the phone. Bill felt the walker issue was a trap”.

201. On 24 November 2012 a Private Care Note was made stating:

Didn’t get to sleep until 10:40-11 pm (sic) as he was up a few times trying to figure it out and get rid of the reflection through the window in his bedroom…

Most of the day Bill was either looking for his car keys (which Aleta told him were on a shelf in the study when she phoned) or looking up yellow pages and phoning driving test companies to see if he could book an aged assessment now that he had his medical certificate from his doctor

202. The Private Care Note for 25 November 2012 records that the deceased napped from 2:30-3:15pm in his chair, and from 3:20-4:20pm and 4:30-4:50pm in his bed.

203. The Private Care Note for 26 November 2012 records that the deceased drove the car out of the garage when he was not cleared to drive and that he “seemed intent on finishing off his bottle of wine”.

204. On 26 November 2012 the defendant sent a letter to the deceased in relation to his Guardianship Tribunal application:

I made the application to the Tribunal (for your temporary care…) out of my deep concern for your welfare and well-being…

After my Solicitor Mr. Marshan spoke with your Solicitors Gary White and Richard Neale at the Tribunal, and having been satisfied that you were sufficiently in control of your physical and mental faculties to know and act upon your own wishes, I was only too ready to withdraw my application, particularly as I could see how hurt and upset you were by the whole process.

205. On 27 November 2012 Private Care Notes were made recording that the deceased told the carer that he slept okay but was up four times during the night and that the deceased was “on phone trying to secure an appointment for driving test, in hope of getting his licence back”.

206. Also on 27 November 2012 Janine responded to the letter from Whites Lawyers dated 20 November 2012:

1140. In theory of course courts are not bound by the testimony of witnesses, lay or for that matter expert, even if there has been no cross examination. It goes without saying that testamentary capacity is a matter of fact and degree, but medical science has moved on exponentially since Banks v Goodfellow. The availability of sophisticated technology together with a high level of expertise makes the search for a “connection” between any cognitive impairment and a disposition a good deal easier to identify. This is an area no longer in need of judicial notice but rather that of expert evidence paying due deference to relevant facts. In a case such as this, especially given the way it was conducted, the medical evidence in particular called by the defendant is to be given very considerable weight.

1141. In contrast to the experts called by the plaintiffs the defendant’s experts had advantage of the availability of a greater amount of material. Professor Watson did not have the transcript of the cross examination of Mr White, Mr Colley, Dr Barrett or Dr Dedousis, upon whom he relied heavily. In other words he did not have the benefit of reviewing and considering their various qualifications and concessions. This in my view and to my observation placed him at a significant disadvantage.

1142. As is obvious he relied heavily upon their accounts in chief of what he no doubt took in the case of Mr White and Mr Colley as “business as usual” and very much his own summaries of the evidence and what he perceived as pertinent and relevant. It is fair to say that when confronted with the documents underlying Mr White’s affidavits, not having carefully considered them before, he understandably but unpersuasively attempted to avoid answering some of the questions and was in my view reluctant to make appropriate concessions (e.g. TT.1153-1156). He also did not have for example all the carers’ notes which were of some relevance as to the deceased’s confusion and forgetfulness in particular (TT.1160-1162). I did not find his attempt to reject or dismiss the importance of that material convincing (T.1170).

1143. The failure to cross examine the medical experts for the defendant is in my view a real problem for the plaintiffs’ case. Judges in the common law system are umpires not investigators. It is no part of the function of a trial judge to make or explore a case not sought to be made by one of the parties. They are not of course obliged to accept evidence even that which has not been the subject of cross examination. But the failure to cross examine at all where matters are seriously in issue usually should have consequences, especially where the decision is to be seen as a deliberate forensic choice.

1144. The failure to cross examine in effect either Associate Professor Brodtmann and/or Dr Lonie is of some considerable consequence here. Forensic risk taking aside both experts were, as I have otherwise commented, highly qualified to express the views they did. They both thought that the deceased did not have testamentary capacity from at least mid 2012 due to the damage caused by the stroke and the deceased’s dementia. Both did numerous reports and were given a vast amount of relevant material. They explained their opinions in some detail not only in their reports but in their detailed dissertations in chief which I invited each expert to give if they so chose. They gave thoughtful and comprehensive analyses of the situation by reference to comprehensive materials and supported each of their opinions in a highly persuasive and plausible fashion. In my view, in the face of that evidence, the lack of cross examination should be regarded by the court as an acceptance by the plaintiffs of those opinions. That is so notwithstanding the calling of opposing opinions, which were of course tested, and the criticisms the plaintiffs made against them in closing submissions, which by that stage could not be adequately ventilated with the experts themselves in order to test the foundations of their opinions.

1145. Cross examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side’s evidence in order to persuade the court to accept or reject evidence. By adoption of this convention the court has the full opportunity to evaluate the opposing cases. Failure to cross examine will generally as I have said have consequences especially where, as here the evidence is expert, plausible and comprehensively explained.

1146. If evidence is glaringly improbable or absurd it may be no cross examination will be necessary or if, as discussed in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1, the contest is plain and obvious. I dare say I may have had questions if an attempt to challenge either witness was attempted but, as I have said, the case must be made by the party not the court.

1147. Absent some exceptionable circumstance, which is absent here, in my view, as I am otherwise satisfied with the reports and the evidence of Professor Brodtmann and Dr Lonie, the failure to challenge them is in my view highly relevant in assessing whether the court should accept their evidence.

1148. Counsel for the plaintiffs did make the comment that the defendant’s experts were not given the usual set of comprehensive assumptions. I agree. It is not generally appropriate to give an expert materials and ask them either to assume it is all true or worse to in effect make their own findings of fact and then express opinions based on in effect their findings. That approach which both sides adopted to some extent here is not to be encouraged. The lawyers should identify the relevant factual material and then ask the expert to assume certain facts which they have carefully constructed to support the case sought to be made. That ensures the expert is directed to what the party considers relevant. Then it is for the court to make the relevant findings or not. On the other hand inviting an expert to be a sleuth may well have the effect of making a case that is not pleaded or worse cause considerable confusion about what they are truly relying upon. In an extreme case it may be an expert draws impermissible inferences or relies on irrelevant or inadmissible material.

1149. This problem is highlighted somewhat dramatically by the approach of Professor Watson who, despite being given some assumptions by the plaintiffs, it appears spent a huge amount of time preparing his own summaries of the evidence which must have been time consuming and may well have distracted him from addressing relevant materials before he expressed his views.

1150. In the end he focused very much on an unqualified acceptance of the various plaintiffs’ witnesses in chief and was not by his own side asked to consider the concessions made, or for example the carer’s notes, although he was asked to do so in an effective cross examination which exposed the deficiency caused by the myopic approach the plaintiffs adopted in relation to his evidence.

1151. I am satisfied in all the circumstances that I should accept the evidence of Professor Brodtmann and Dr Lonie on testamentary capacity with respect to the wills made between September 2012 and July 2014, namely that a combination of the deceased’s dementia and other illnesses, and particularly his stroke, had destroyed the deceased’s testamentary capacity by this time. And contrary to what the plaintiffs sought to argue there is it seems an abundance of material supporting that conclusion.

1152. Many features of the deceased’s behaviour which were referred to in the Background Facts, and pointed to by Professor Brodtmann and Dr Lonie, indicate or support a conclusion of executive function impairment from mid 2012. Examples include the numerous references to confusion, anger, paranoia, lack of empathy and forgetfulness recorded in the carers’ and hospital notes from July 2012 up to and following Dr Lonie’s May 2015 testing.

1153. I do not accept the plaintiffs’ submission that references to behaviours such as confusion and aggression are few and far between. A review of the chronology in the Background Facts shows that is not the case. However they are correct in pointing out that no behavioural type matters appear to have been recorded in the four weeks preceding the deceased’s making of the 18 July 2014 will, and that the references to “confusion” and “delirium” in the hospital notes of 2012 could be explained by infections and adverse reactions to antibiotics and/or sticking plaster or the deceased’s recent stroke.

1154. However the carers’ notes certainly record somewhat regular instances of bizarre behaviour that indicates a pattern of functional impairment. For example on 18 December 2012 the deceased forgot how to drive, being unable to change gears from “P” to “R” (recorded above at [222]). On 24 December 2012, Christmas Eve, he was up doing office work at 5:25am and could not understand why no one was picking up their phones or responding to messages (at [228]). On 20 February 2013 he stood in the middle of the road while a car waited, attempting to turn, and he ordered the carer, who was already on the curb, to get off the road (at [256]). On 28 February 2013 he got up and dressed for breakfast at 12:20am (at [264]). On 1 April 2013 he woke up at 1:50am because he thought someone was knocking on the door trying to give him a puzzle (at [290]). On 13 May 2013 at 8:30pm the deceased woke up from a nap and yelled into the telephone for 10 minutes with no one on the other end (at [310]). He misplaced things, such as the blood pressure machine on 20 March 2013 (at [285]), a cheque on 28 July 2013 (at [332]), his keys on 29 July 2013 (at [333]). On 3 March 2014 he went to the wrong bank, St George, not realising he had closed his St George bank accounts and the cheque he had was for NAB (at [382]). On 15 July 2015 he pulled his trousers down when the physiotherapist came to visit, saying he wanted to wipe himself (at [588]). Associate Professor Brodtmann was of the view that these behaviours were indicators of severe functional impairment.

1155. The plaintiffs sought to argue that there may have been better explanations for the deceased’s behaviours than cognitive dysfunction. I have already noted my agreement that the behaviours observed during the course of the deceased’s 2012 hospital admissions may have been caused by other factors at least partly. Yet when other incidents, including those I have just listed, are viewed in context of the expert evidence I am not satisfied that is otherwise the case. Associate Professor Brodtmann considered that the observations recorded in the carers’ notes provided evidence of gradual deterioration in the deceased’s function in association with episodes of sudden worsening of his cognitive function, usually in the context of intercurrent illness. Yet she was of the view that was consistent with someone with vascular cognitive impairment developing vascular dementia (Associate Professor Brodtmann’s Executive Summary, p 4).

1156. The results of Dr Lonie’s May 2015 tests seem to support Associate Professor Brodtmann’s conclusions. Dr Lonie was criticised for extrapolating back from May 2015 to mid 2012. However that approach was supported by longitudinal research into the nature and course of cognitive decline in cerebral small vessel disease. She was criticised due to the length of her testing and because she was testing for financial management not testamentary capacity but Associate Professor Brodtmann “found little to dispute with Dr Lonie’s report, except that I feel she erred on the conservative side when describing the severity of his impairments” (CB.3014). I found her dissertation at the commencement of her evidence particularly persuasive and I accept her evidence on this.

1157. The plaintiffs also submitted that there is a wealth of evidence explaining the deteriorated relationship between the defendant and the deceased, and the change in the allocation of the deceased’s testamentary bounty, other than the deceased’s supposed cognitive condition. They pointed in particular to the fact that the deceased and defendant fell out over money in 2005 or 2006, the two Guardianship Tribunal Proceedings and other legal proceedings. However there is evidence that the deceased and defendant maintained a somewhat harmonious relationship in 2011 (for example see their 2011 correspondence set out in the Background Facts). And while many people are likely to be distressed or angry about their children commencing guardianship or any kind of proceedings against them, it is also the case that right hemisphere strokes and functional impairment can lead to problems with judgment and insight. As Dr Lonie pointed out the deceased’s “impaired memory and executive function, lack of insight into his cognitive and associated functional impairments, limited understanding of the context in which he found himself and the actions taken by his son” may have contributed to his negative appraisal of the defendant (CB.2770; CB.2999-3000). It should also be noted that Melinda and Aleta did not correct the deceased’s misunderstanding of the nature of the defendant’s 2012 Guardianship Tribunal application. I regard the evidence concerning the deteriorated relationship between the defendant and the deceased as somewhat inconclusive.

1158. The deceased had several episodes of syncope or non responsiveness that lead to hospital admissions on 7 March 2013 (recorded above at [267]-[268]), 19 April 2013 (at [299]) and 16 April 2014 (at [402]-[403]). Associate Professor Brodtmann thought he may have had further strokes, at least during the March 2013 admission (CB.3004).

1159. In my view one of the most significant indicators of the deceased’s cognitive impairment is the note he sent to Mr White on 3 February 2014. I agree with the defendant’s characterisation of that note over that of the plaintiffs. The deceased was it seems instructing Mr White to write him a new will in the same terms as his previous one. That does not speak of a man capable of making rational decisions about his bounty. And I am not convinced the deceased’s other handwritten notes which the plaintiffs’ relied upon necessarily indicate any greater capacity. Some are cogent; some, such as that of 1 August 2014, are in my view less so. The deceased had a practice of making notes and faxing them to his advisors and family members over his lifetime, which he continued up to 2015, whether out of habit or otherwise. As the defendant pointed out, it is unclear whether all the notes were sent, and some could be considered somewhat divorced from reality (TT.1291-1292). Again I regard these handwritten notes as somewhat inconclusive.

1160. The fact the deceased’s deficiencies were not picked up by his legal, accounting or medical advisors does not in my view assist the plaintiffs’ case very much. I regard Mr White and Mr Colley as somewhat unimpressive. Mr White was clearly not attuned or interested in making sure his client truly understood what he was doing. He had very little real recollection of events and I am uncertain as to whether he was being untruthful. He was in my view clearly favourable towards the plaintiffs who he also acted for and who failed to tell him that the deceased was on day leave from hospital when he made his 4 September 2012 will or later that he had had a stroke. He appeared to rely heavily upon Dr Dedousis’s assessment of the deceased’s condition. Mr Colley also acted for the plaintiffs and was it seems unaware of the deceased’s true condition. Mr White and Mr Colley did not, let alone I am satisfied dare, to test, in the deceased’s own interest as it were, his understanding of what he was doing in making his multiple post 2012 wills. One would think the deceased’s frenzy of will making over the period June 2012-July 2014 would have raised questions in their minds about his capacity or at least rationality at the time.

1161. The deceased’s deficiencies were not picked up by either Dr Barrett or Dr Dedousis perhaps by reason of a lack of expertise but certainly by inadequate testing with the use of the MMSE alone. Even the deceased’s clock drawing attempts did not appear to raise alarm. On 26 September 2012 the deceased inserted the words “20 to” in the place of the minute hand. On 28 August 2012 he drew some numbers inside the clockface and some numbers outside the clockface. During Dr Lonie’s May 2015 testing he drew the numbers 1-16 inside the clockface and wrote “20” and “4” outside the clockface. Although by that stage Dr Dedousis had recommended (in January 2015) that the Power of Attorney be invoked.

1162. Dr Barrett relied heavily upon Dr Dedousis who was to some extent kept in the dark by the plaintiffs. Dr Dedousis seemed convinced the defendant had done the wrong thing in bringing the Guardianship Tribunal proceedings in 2012 but was not told about the true nature of the application at the time. He was not told that the deceased had live in carers from November 2012 and he said he was not shown the private carers’ notes. He was not aware of the deceased’s financial situation.

1163. I am satisfied the plaintiffs attempted not through altruism but self interest to orchestrate the facts so as to obscure their father’s true condition and succeeded in cajoling Dr Dedousis to change his professional opinion on at least two occasions, in relation to the discharge summary that recorded “dementia” and the deceased’s death certificate, for their benefit. During cross examination Dr Dedousis said he changed the records because he wanted to ensure they were accurate. I reject that explanation. That he was so malleable is indicative in my view of his partisanship but also his susceptibility to inappropriate influence, both of which blurred his judgment. He admitted that he did not mention the deceased’s stroke or cognitive state to Mr White or in the letters he sent to the Guardianship Tribunal.

1164. I accept that Mr Hunt’s evidence was largely unchallenged in cross examination, although he said that he could not recall exactly what was said during his meeting with the deceased. I note that the deceased assisted Tyrone to resolve some disputes about rent with the real estate agent in about 2013, and the plaintiffs’ submission that Mr Marshan’s impression of the deceased at the Guardianship Tribunal on 13 November 2012 was that he was in control of his faculties, although he did not give evidence in these proceedings. I also accept that the evidence of lay people as to a testator’s health condition can be valuable (Zorbas v Sidiropoulos (Estate of Kriezes) (No 2) [2009] NSWCA 197 at [90] (per Young JA, Bergin CJ in Eq agreeing).

1165. However I am not satisfied on the whole of the evidence that the deceased was of sound and disposing mind when he made his September 2012-July 2014 wills. The factual question posed in Croft v Sanders was it seems whether the testator’s moments of testamentary incapacity were in fact continuous as opposed to merely episodic. Clearly relevant capacity need not always be present. The question is to be answered on the particular facts. Here, although his deficiencies were largely undetectable unless adequately tested, the profound nature of the stroke suffered by the deceased and its effect on such an important aspect of brain function makes it in my mind more likely that he suffered with the incapacity more or less continuously afterwards and as his dementia progressed. His stroke was a physical injury which on top of his dementia, atrial fibrillation and other illnesses caused him cognitive impairment which I am satisfied he did not travel in and out of. I am satisfied on the evidence of Associate Professor Brodtmann and Dr Lonie that after his stroke the deceased never regained cognitive functions sufficient to weigh and contrast the potential claims of his various children and grandchildren to his estate, which was complex, consisting of numerous companies and various pieces of property, and therefore lacked testamentary capacity (Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6]).

1140. Associate Professor Brodtmann and Dr Lonie differed however in their opinions with respect to the deceased’s 15 June 2012 will which was made prior to his stroke. Associate Professor Brodtmann, who considered that the deceased lacked testamentary capacity at that time, based her opinion on the likely progression of the deceased’s other medical illnesses, including it seems the extent of the disease in his white matter which was visible on CT brain scans prior to his stroke, the delirium he was likely suffering due to his facial infection, his atrial fibrillation, and the severity of his illnesses during his admissions over the following months (Executive Summary pp 3-4; CB.3000, 3008-3009; Report from Conclave between Brodtmann and Watson).

1141. Dr Lonie on the other hand initially concluded on the basis of her May 2015 tests and the longitudinal study that the deceased likely lacked capacity at 15 June 2012 but later changed her opinion based on the correspondence between Mr White and the deceased about the content of the will. That correspondence was put to Associate Professor Brodtmann at least it seems in the conclave she had with Professor Watson but did not cause her to alter her opinion.

1142. I prefer and accept Associate Professor Brodtmann’s opinion given her qualifications and the explanation she provided. The correspondence between Mr White and the deceased was conducted via faxes and handwritten notes. It is of course some evidence that the deceased understood what he was doing however as I have said Mr White did not ever discuss the deceased’s wills with him nor test his capacity himself. On balance I am not satisfied the deceased had testamentary capacity when he made his 15 June 2012 will.

1143. Given what I have said already about the deceased’s testamentary capacity it is not necessary to determine the defendant’s suspicious circumstances case. However there are circumstances from at least the time of the deceased’s 4 September 2012 will that raise doubts in my mind about whether his wills expressed his mind, unaffected by the influence of the plaintiffs (Tobin v Ezekiel at [46]). The circumstances surrounding the making of his 4 September 2012 will are particularly suspicious. The deceased was very ill in hospital at the time and his condition should have been obvious. The plaintiffs took him to Mr White’s offices where he made the will and they also signed an Enduring Power of Attorney. However, as I have said, Mr White was not made aware of his precise condition or that he was on day leave from hospital. The plaintiffs were either unaware of the extent of his illness or intended to withhold it. These circumstances clearly also relate to the deceased’s testamentary capacity, and as the plaintiffs’ pointed out the defendant’s case concerning the plaintiffs’ manipulation of the deceased depended in part on their medical case, which I have upheld.

1144. It seems clear that by the time the defendant made his first application to the Guardianship Tribunal in September 2012 the plaintiffs and the defendant were deeply divided. I am satisfied that the plaintiffs thereafter engaged in a course of conduct that, whether intentionally or otherwise, influenced the deceased against the defendant, and in their favour, and concealed his true condition from his medical and legal advisors. They did not for example inform their father of the true nature of the defendant’s guardianship application which appears to have played on his vulnerabilities and fears about being placed in a nursing home. They did not inform Dr Dedousis or Mr White about the comments in the carers’ notes and sought to sanitise information contained in hospital records and later on the deceased’s death certificate.

1145. I have carefully considered the submissions of both sides and would find the suspicious circumstances alleged by the defendant to have attended each of the deceased’s respective wills from September 2012-July 2014 (and which I have summarised above at [1100]-[1107]) to have existed. Of particular significance in my view is the likely presence of one or both of the plaintiffs at the signing of most of the wills; the fact Mr White said (T.79/11-18) his instructions in relation to the 12 November 2012 will came from the deceased and Mr Colley, who had previously been corresponding with Melinda about the power of appointment of the Gooley Family Trust which she was gifted under that will (see above at [104]); the fact that Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White (although she denied that was necessarily the case on occasions when he signed his wills: T.783.14-25); and, in relation to the deceased’s 2013 and 2014 wills, their increasing control over the deceased’s affairs at that time, evidenced for example by their instruction to the deceased’s carers on 10 February 2013 to ban the defendant and Janine from the deceased’s unit and Melinda’s giving instructions to Mr White, Mr Colley and Mr Rogers about Motasea despite not being a director in May 2013 (see [305] above).

1146. When these matters are considered alongside the general trend in the deceased’s wills, which (save perhaps for the 22 May 2013 will) were changing in their favour, inconsistently with the deceased’s long held succession plan, there is in my mind a suspicious circumstances case to meet. Yet given the deficiencies in Mr White’s practice I am not satisfied it could be allayed.

1147. For these reasons I am satisfied that the deceased lacked testamentary capacity at all relevant times after he made his 1 February 2010 will and would grant the primary relief sought by the defendant in his cross claim. I would dismiss the plaintiffs’ claim. I invite the parties to bring in short minutes reflecting these reasons and would hear them further in relation to costs if necessary.

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Decision last updated: 12 February 2021