Gray v Hart

[2012] NSWSC 1435

Supreme Court

New South Wales

Medium Neutral Citation:	Gray v Hart & Ors [2012] NSWSC 1435
Hearing dates:	16, 17, 20-24, and 27-29 February 2012
Decision date:	27 November 2012
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to para [387] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - testamentary capacity - whether deceased had capacity to revoke prior will and create new will - test of capacity required for complete revocation of a will same as that required for making a will - whether deceased affected by delusions at time of making will - deceased held beliefs as to motives of some relatives not only rational but correct - held that deceased had testamentary capacity WILLS, PROBATE AND ADMINISTRATION - righteousness of will and suspicious circumstances doctrine - beneficiaries involved in procuring solicitor for deceased and arranging medical examination, but not in framing will GUARDIANSHIP - financial managers - entitlement to remuneration - private financial managers generally must act gratuitously because they must not place themselves in a position of conflict between their interest and duty - no answer to conflict that fiduciary was acting for the benefit of the principal - private managers only entitled to remuneration allowed by the Court
Legislation Cited:	Protected Estates Act 1983 (NSW) Corporations Act 2001 (Cth) Family Provision Act 1982 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 Banks v Goodfellow (1870) LR 5 QB 549 Pemberton v Pemberton (1807) 13 Ves. Jun. 290; 33 All ER 303 Perpetual Trustee Company Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377 d'Apice v Gutkovich (No. 2) [2010] NSWSC 1333 Bull v Fulton (1942) 66 CLR 295 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Boughton v Knight (1873) LR 3 P & D 64 Wechsler v Du Maurier [2002] NSWCA 13 Du Maurier v Wechsler [2001] NSWSC 4 The Lady Mary Cope's Case (1677) 2 Ch Cas 239; 22 ER 926 Ex parte Femor; In the matter of Errington (1821) Jac 404; 37 ER 903 Re Westbrooke (1848) 2 Phil 631 JJK v APK (1986) Aust Torts Reports 80-042 G v B (Supreme Court of New South Wales, Powell J, 27 May 1992, unreported) Gell v Gell [2005] NSWSC 566; (2005) 63 NSWLR 547 Broughton v Broughton (1855) 5 De GM & G 160; (1855) 43 ER 831 In re Doody; Fisher v Doody [1893] 1 Ch 129 In re Gates; Arnold v Gates [1939] 1 Ch 913 In the Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported, BC9303622) Aberdeen Railway Co v Blaikie Bros (1854) 2 Eq Rep 1281; [1843-60] All ER Rep 249 In the Estate of Purton (1935) 53 WN 148 Snelgrove & Ors v Swindells [2007] NSWSC 868 Worth v Clasohm (1952) 86 CLR 439 Re Estate of Griffith (deceased); Easter v Griffith (1995) 217 ALR 284 Kerr v Badran [2004] NSWSC 735 Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197 Read v Carmody [1998] NSWCA 182 Shaw v Crichton (Supreme Court of NSW Court of Appeal, Handley, Powell and Cole JJA, 23 August 1995, unreported, BC9505227) Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 Bailey v Bailey (1924) 34 CLR 558 Brown v McEnroe (1890) 11 NSWR Eq 134 In the Estate of Park [1954] P 112 Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342) Gibbons v Wright (1954) 91 CLR 423 In the Will of Richards [1911] VLR 284 Re Sabatini (dec'd) (1969) 114 SJ 35 Re Estate of Poole; Public Trustee v Elderfield (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) Young v Cleary (Supreme Court of New South Wales, Simos J, 21 October 1997; unreported) d'Apice v Gutkovich; Estate of Abraham (No. 2) [2010] NSWSC 1333 Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152 King v Hudson [2009] NSWSC 1013 Fulton v Andrew (1875) LR 7 HL 448 Fuller v Strum [2002] 2 All ER 87 Nock v Austin (1918) 25 CLR 519 Vernon v Watson [2002] NSWSC 600
Texts Cited:	Jacobs Law of Trusts in Australia, 7th ed Mason and Handler, Succession Law and Practice, LexisNexis
Category:	Principal judgment
Parties:	Beatrice Anne Gray (Plaintiff) Coralie Anne Hart (1st Defendant) Richard Bernard Spinak (2nd Defendant) Warwick Robert Mertell (3rd Defendant) Philip Fletcher Mertell (4th Defendant) Anne Elizabeth Nickolls (5th Defendant)
Representation:	C Harris SC with H Bennett (Plaintiff) L Ellison SC with M Pringle (1st & 2nd Defendants) C Vindin (3rd - 5th Defendants) Teece Hodgson Ward Solicitors (Plaintiff) Pigott Stinson Lawyers (1st & 2nd Defendants) Heckenberg Lawyers (3rd - 5th Defendants)
File Number(s):	2009/319943

Judgment

1. HIS HONOUR: These proceedings concern the estate of Betty May Harris who died on 17 September 2009, aged 95. Mrs Harris survived her husband. She had no children. She had had three sisters and a brother: Lorna, Melva, Florence (Flo) and Fletcher. She survived them all. Her closest relatives were two nieces and two nephews. Mrs Harris' niece, Coralie Anne Hart, is the daughter of her sister, Lorna. Her nephews, Warwick and Philip Mertell, are the sons of her sister, Melva. Her niece, Anne Elizabeth Nickolls, is the daughter of her sister, Flo. Her brother, Fletcher, was killed in the Second World War.

1. Mrs Harris was not close to any of her nieces or nephews.

1. Mrs Harris' estate was estimated for probate purposes to be worth more than $12.5 million. It includes a house in Wyuna Road, Point Piper. Mrs Harris' neighbours on one side were Robert and Beatrice Gray.

1. On 9 July 1996, Mrs Harris made a will in which she appointed Coralie Anne Hart and a solicitor, Mr Richard Spinak, as her executors. She left pecuniary legacies of $100,000 to each of her sisters Lorna and Melva, and left the rest of her estate to Coralie Hart. Mrs Hart and Mr Spinak seek an order that probate be granted of that will. As Mrs Harris' sisters predeceased her, Mrs Hart would be the sole beneficiary of her estate.

1. On 23 March 2005, Mrs Harris made a will that revoked all previous wills. On 31 March 2005, she gave instructions to a solicitor, Ms Michelle Johnson. Those instructions were reduced to writing and signed by Mrs Harris and witnessed by Ms Johnson as an informal testamentary document. It said:

"This document represents my testamentary wishes until I execute a formal will. I give my property and assets to Robert and Beatrice Gray equally."

1. On 4 April 2005, Mrs Harris made a will that was duly witnessed revoking all prior wills. The will provided:

"I give my estate which remains after payment of all debts, funeral and testamentary expenses to those of Robert Gray and Beatrice Gray who survive me and if more than one equally."

1. Mr Robert Gray predeceased Mrs Harris. Mrs Beatrice Gray seeks a grant of letters of administration with the will dated 4 April 2005 annexed.

1. There are five competing claimants to the estate. Coralie Hart seeks probate of the 1996 will under which she is the sole beneficiary. She is joined in that application by the executor named in that will, Mr Spinak. He played no active part in the proceedings. There is no dispute about the validity of that will.

1. Mrs Gray propounds the will of 4 April 2005 under which she is the sole beneficiary.

1. The other claimants are the nephews and the other niece of Mrs Harris, namely Mr Warwick and Mr Philip Mertell and Mrs Anne Nickolls. They (along with Mrs Hart) would be entitled to Mrs Harris' estate on intestacy. They contend that Mrs Harris had testamentary capacity to execute the will of 23 March 2005 revoking her 1996 will. They contend that she did not have testamentary capacity to make the will of 4 April 2005 in favour of Mrs Gray.

1. Mrs Hart contends that Mrs Harris did not have testamentary capacity in March and April 2005 either to revoke the 1996 will or to make a new will in favour of Mrs Gray. She also pleaded that Mrs Harris was acting under the undue influence of Mr or Mrs Gray such that the purported wills were of no legal force. She also pleaded that Mr and Mrs Gray were instrumental in the creation of the alleged testamentary documents and the onus was on Mrs Gray to demonstrate the "righteousness of the transaction" so as to obtain a grant in her favour.

1. Although the plea of undue influence was not formally abandoned, no submissions were made for Mrs Hart in support of the plea. Before probate of a will will be refused on the ground of undue influence, it must be shown that the will of the testator was overborne, that is, that the testator did not intend and desire the disposition, but was coerced into making it (Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 at [63]-[64]). There was no such evidence.

1. The principal issue is whether Mrs Harris had testamentary capacity to revoke her 1996 will and to make her 4 April 2005 will. The informal will can be put to one side. There would be no basis for finding that Mrs Harris had testamentary capacity to make a will in favour of Mr and Mrs Gray on 31 March 2005, but not on 4 April 2005.

Summary of key events

1. Mrs Harris was born on 19 November 1913. She was 91 when she executed the testamentary documents in issue in this case. On 8 December 2004, she was admitted to St. Vincent's Hospital with a bowel obstruction. She remained in St. Vincent's Hospital until 9 February 2005. She was transferred to a geriatric care ward and came under the care of Dr Alexander Beveridge, a geriatrician. He diagnosed her as having moderately severe dementia.

1. On 19 January 2005, Mrs Hart filed an application to the Guardianship Tribunal seeking orders for the appointment of guardians and a financial manager to the person and estate of Mrs Harris. On 3 February 2005, the Tribunal appointed Mrs Hart, Mrs Nickolls and Mr Warwick Mertell as Mrs Harris' guardians. The Tribunal appointed a Mr Darryl Swindells as financial manager of her estate. Mr Swindells was and is Mrs Hart's son-in-law, being married to Mrs Hart's daughter, Amanda Swindells. He is an accountant and a partner of the firm HLB Mann Judd.

1. On 9 February 2005, Mrs Harris was discharged to the Lulworth House nursing home. She returned to her house at Point Piper on 15 February 2005. Her mood improved dramatically. Mrs Harris was angry that orders had been made by the Guardianship Tribunal appointing guardians and a financial manager. For many weeks she was dependent for funds on moneys supplied to her by Mrs Nickolls and on money she had to borrow from her neighbours, Mr and Mrs Gray. She found she was unable to use her chequebook as her bank account had been closed. This was a humiliation. She was particularly angry with Coralie Hart. When she returned home on 15 February 2005 she found that Mrs Hart had (in her words) ransacked her house. On 10 and 11 January 2005, Mrs Hart and her daughter, Amanda Swindells, had searched the house and removed important documents, including title deeds and a copy of her 1996 will. Mrs Harris was also angry with Mrs Hart because she considered that Mrs Hart wanted and tried to place her in a nursing home.

1. On 12 March 2005, a Professor John Watson and a Ms Corinne Roberts attended on Mrs Harris in her home. Professor Watson is a consultant neurologist. Corinne Roberts is a clinical and consulting neuro-psychologist. Their attendance was arranged through the Grays. Mr Gray was present during the consultation. The purpose of the consultation was for Professor Watson and Ms Roberts to consider whether Mrs Harris had capacity to apply to the Guardianship Tribunal to review its decisions of 3 February 2005, whether she had capacity to make a will, and whether she had capacity to instruct a solicitor in relation to those matters. On 18 March 2005, Professor Watson again visited Mrs Harris to complete his assessment. It was Professor Watson's and Ms Roberts' opinion that Mrs Harris did not suffer from dementia and that she had testamentary capacity.

1. On 23 March 2005, Mr Philip Jones and Ms Michelle Johnson, solicitors, attended on Mrs Harris. They were then with the firm Bartier Perry Lawyers. They were both experienced in will and probate matters. At that meeting, Mrs Harris gave instructions that she wished to cancel her will. A handwritten will was prepared and signed by Mrs Harris and witnessed by Ms Johnson and Mr Jones that revoked prior wills. Prior to the document being executed there was discussion between Ms Johnson and Mrs Harris that satisfied Ms Johnson and Mr Jones that Mrs Harris had capacity to execute that will. Mrs Harris said that she wished to think through what she would do in relation to a new will.

1. Ms Johnson met Mrs Harris again at her Point Piper home on 31 March 2005 and took instructions for a new will. As I have said, an informal testamentary document was executed at that time. On 4 April 2005, Ms Johnson and Mr Jones again attended on Mrs Harris when she signed the will of that date.

1. As part of a strategy of seeking to enable Mrs Harris to take back control of her finances, Ms Johnson recommended to Mrs Harris that she appoint an accountant together with Mr Gray (in conjunction with Mrs Gray) as her attorney under an enduring power of attorney. (Mrs Harris' estate was then subject to management under the Protected Estates Act 1983 (NSW)). Subsection 76(4) of that Act provided that a person could give a power of attorney, notwithstanding that the person's estate was subject to management under the Act. By subs 76(5), the power of attorney would be suspended whilst the estate of the principal was subject to management under the Act.) On 13 May 2005, Mrs Harris executed an enduring power of attorney in favour of Mr Gray and a Mr David Bassingthwaighte, an accountant and a partner with PricewaterhouseCoopers Australia. Mrs Gray was appointed as a substitute for Mr Gray if Mr Gray predeceased Mrs Harris or was unable or unwilling to act.

1. Mrs Harris had been advised that the execution of an enduring power of attorney was part of a strategy to be put to the Tribunal to satisfy it that Mrs Harris was capable of managing with assistance her financial affairs and to put in place a safeguard to ensure management of her affairs if she fell ill again. Nonetheless, Mrs Harris was not happy about signing the power of attorney. She told Mrs Gray that she was not happy about the advice that she should execute a power of attorney, because she had her mental faculties. Mr Gray told Mrs Gray that Mrs Harris was unhappy about it and that it was terminated orally by Mrs Harris "basically as soon as it was done".

1. Ms Johnson's retainer was terminated by Mrs Harris on 28 June 2005. She told Ms Johnson that she did not think she was the right person for the job. From Mrs Harris' perspective, the job then was to have the Tribunal's orders of 3 February 2005 revoked.

1. Mrs Harris' guardians were concerned that Mrs Harris had been examined by Professor Watson. They asked for a copy of Professor Watson's report. Professor Watson had prepared a draft report that he had sent to Ms Johnson. He did not sign the report. He did not forward the draft report to Mrs Harris' guardians.

1. On 11 July 2005, Mrs Hart instructed Mrs Harris' general practitioner, Dr Hardy, that he was not to communicate with the Grays. Doctor Hardy said that that was impracticable as they were her principal carers at that time and that if she and her fellow guardians insisted upon that, they should issue him with a formal written instruction. On 11 July 2005, the lawyers acting for Mrs Hart, Pigott Stinson Ratner Thom, wrote to Dr Hardy. Amongst other things, they asked for Dr Hardy's assistance in providing a referral for a further examination of Mrs Harris by Dr Beveridge. On 11 July 2005, Dr Hardy made that referral to Dr Beveridge.

1. Doctor Beveridge saw Mrs Harris in her home on 1 August 2005. He was accompanied by Mr Swindells. In his report of 4 August 2005 Dr Beveridge stated that Mrs Harris still had significant dementia and did not have capacity to give a power of attorney, nor to write a will.

1. On 10 August 2005, Mrs Harris' application was filed with the Guardianship Tribunal for the revocation of the financial management order. She also sought review of the guardianship order.

1. On 18 August 2005, Professor Watson made a further assessment of Mrs Harris. On 26 August 2005, he provided a report to the Guardianship Tribunal. It was his opinion that Mrs Harris did not have dementia and was capable of managing her financial affairs with minimal assistance and of considering and deciding on her health care.

1. On 25 September 2005, Mrs Hart, Mr Mertell and Mrs Nickolls terminated the services of Dr Hardy. They appointed Dr Raymond Seidler as Mrs Harris' general practitioner. He first visited her at her home on 30 September 2005.

1. Mrs Harris' application was heard by the Guardianship Tribunal on 24 November 2005. Mrs Harris attended. She was questioned by Tribunal members for over an hour in private session, that is, with only her and the Tribunal members present. The Tribunal members included Dr Carmelle Peisah, a psychiatrist. The day's hearing before the Tribunal was recorded.

1. At the conclusion of the hearing (which was lengthy), the Grays took Mrs Harris home. Mrs Harris was dissatisfied with the day's proceedings. That evening she gave to Mr and Mrs Gray an envelope that contained the testamentary documents. This was the first they knew that Mrs Harris had made a will leaving her estate to them. Mrs Harris had insisted to Ms Johnson that the wills be kept confidential.

1. The Tribunal made orders on 23 February 2006. It determined not to revoke the financial management order and confirmed that Mr Swindells continue to be manager of Mrs Harris' estate subject to the supervision of the Protective Commissioner. It reviewed the guardianship orders. It concluded that because of conflict between the guardians and Mr and Mrs Gray, it was not in Mrs Harris' interests for Mrs Hart, Mrs Nickolls and Mr Mertell to continue as guardians. The Tribunal appointed the Public Guardian as Mrs Harris' guardian.

1. Doctor Beveridge said the transcript of Mrs Harris' attendance before the members of the Tribunal presented:

"... as exactly the same pattern as her conversation and abnormal behaviour while she was under my care in hospital for the two months prior to the writing of the supposed testamentary documents. ... she was exactly as she is represented by the Tribunal transcripts including in the two months prior to the signing of the documents in question". [CB 5/1690]

It was Dr Beveridge's opinion that:

"The most important evidence of her impairment is that of the Guardianship Tribunal transcripts of 24 November 2005 ... This would hopefully be apparent to any lay reader, unfamiliar with the process of diagnosis in dementia. The content and behaviour of Mrs. Harris was very impaired and it can be seen that her conversation was extremely disjointed, irrational, at times irrelevant to the questions asked, unable to be reasoned with and highly perseverative (Perseveration is the persistence of an idea or thought that remains in the thought process and answers after the context has shifted). She had an inability to concentrate on the task at hand, that is, the conversation with the Tribunal members, and became tangential and disordered in her thinking. This demonstrates that she had a marked impairment of the frontal lobe executive function, the area that would be specifically required for testamentary capacity. She relied on past memories and stories as well as indicating clearly that her affections for family members had been affected by their actions in assuring her welfare was secure. I consider that she had a delusional paranoid belief regarding their motives, which disturbed her ability to rationally make a testamentary document in April 2005. She had a complete lack of insight into her impairment that brought about Guardianship proceedings." [CB 5/1689]

1. Dr Beveridge's opinion that Mrs Harris had a delusional paranoid belief regarding her relatives' motives was an important part of his reasoning, but was not essential to his conclusion that Mrs Harris' dementia so affected her frontal lobe executive function as to render her incapable of changing her will. Nonetheless, a rejection of his opinion that Mrs Harris suffered from a delusional paranoid belief about her relatives' motives would substantially weaken the weight to be given to the balance of his opinions.

1. Mrs Hart pleaded that Mrs Harris demonstrated paranoia and suffered from delusions in that:

a) she believed that persons with whom she had contact were attempting improperly to obtain her assets (especially her money or financial assets) for themselves;

b) she believed that family members were not assisting her and/or were acting out of self-interest when, in fact, those persons were acting in the best interests of her by providing domestic care and assistance; and

c) she believed that family members were not assisting her and/or were acting out of self-interest when, in fact, those persons were acting in her best interests by bringing Guardianship Tribunal Applications and discharging the duties and obligations of a guardian and financial manager,

1. Mr Harris SC who appeared with Ms Bennett for Mrs Gray submitted that Mrs Harris was not deluded. Counsel submitted that Mrs Hart applied to the Guardianship Tribunal not to protect the interests of Mrs Harris, but to protect her own interests after she had discovered, through her search of Mrs Harris' possessions, that she was the sole beneficiary under the 1996 will. Counsel also submitted that Mrs Hart was not acting in Mrs Harris' best interests in that she wanted Mrs Harris to be placed in a nursing home, whereas Mrs Harris was competent to live in her own house and fiercely resisted being placed in a nursing home. Counsel also submitted that Mr Swindells, the financial manager, had not properly performed his duties as financial manager. For some months he left Mrs Harris without adequate funds. He prevented her from being able to write cheques as she was accustomed to do. Further, it was submitted that Mrs Harris' suspicion that Mrs Hart and her son-in-law were after her money was well-founded. When Mr Swindells was appointed on 3 February 2005 by the Guardianship Tribunal, it was on the basis that Mr Swindells had advised that he would not charge at all for professional fees and that the only charge he would make to the estate for his work as financial manager would be for out-of-pocket expenses. That was all he was entitled to charge. In fact, between 30 April 2005 and 30 September 2009, Mr Swindells' firm, HLB Mann Judd, charged and received fees of $206,675.80. The firm also received a fee of 0.55 per cent of moneys invested with MLC and an annual fee of 0.66 per cent of the market value of the investment with MLC.

1. Mr Swindells operated a bank account for moneys in his name as trustee for Mrs Harris. This was irregular. He had no right to transfer Mrs Harris' assets into his own name. He gave a debit card for that account to his wife, Amanda. The card was also used from time to time by his daughter Rachel. Mr Swindells said that the card was only used to purchase goods for Mrs Harris. Mrs Gray contends that it should be inferred from the amounts spent when Mrs Harris was housebound, and from the nature of the establishments at which the card was used, that the card was used for the benefit of Amanda or Rachel Swindells.

1. Mrs Gray also contends that Mr Swindells used Mrs Harris' money to pay legal costs for a prospective challenge by Mrs Hart to the validity of the March and April 2005 wills.

1. Hence it was said that not only was Mrs Harris' belief that Mrs Hart and Mr Swindells were after her money before she died not delusional, her suspicion was justified.

1. The critical question is Mrs Harris' capacity to revoke her existing will and to make a new will on 23 March and 4 April 2005. On this question I was assisted by the evidence of a geriatrician, Dr Beveridge, a neurologist, Professor Watson, and a neuro-psychologist, Ms Roberts, who had all examined Mrs Harris. They all hold high qualifications, but the views of Dr Beveridge on the one hand and Professor Watson and Ms Roberts on the other, diverged considerably. I also had the benefit of the evidence of the solicitors who took Mrs Harris instructions for her will and for her largely unsuccessful application to revoke the orders of the Guardianship Tribunal of 3 February 2005.

1. With one qualification relating to the evidence of Ms Johnson, I accept the evidence of the three solicitors. The qualification concerning Ms Johnson (at [206] below) does not affect my assessment of her credibility. For the reasons which follow, I prefer the opinions of Professor Watson and Ms Roberts to those of Dr Beveridge.

1. This does not resolve the question of testamentary capacity. There is no doubt that in 2005 Mrs Harris suffered from some degree of cognitive impairment. There remains the question whether, to have testamentary capacity to make a will in favour of Mr and Mrs Gray, it was necessary that Mrs Harris be able to bring to mind each of her nephews and nieces and the strength of their claims on her estate, and if so, whether she had that capacity, or whether her beliefs were distorted by tainting her nephews and Mrs Nickolls with the conduct of Mrs Hart and Mr Swindells.

1. For the reasons which follow, I have concluded that Mrs Harris had testamentary capacity both to revoke her 1996 will and to make her new will in favour of the Grays. Letters of administration with the will of 4 April 2005 annexed will be granted to Mrs Gray.

Mrs Harris' relations with her relatives and the Grays

1. In her meeting with Professor Watson and Ms Roberts, Mrs Harris stated that she had completed her leaving certificate, having achieved good passes in six subjects. She did not take up paid employment after she left school. A year after she left school, her parents gave her and her sister money for a trip around the world. She married her husband, Mr Keith Harris, on 27 May 1937, at age 23. (She told Professor Watson and Ms Roberts that she had been married at about 21 or 22 years of age.) Prior to her marriage, she lived with her parents in a property in Anglesea Street, Bondi. Mrs Hart also lived in that home at that time. Mrs Harris married and left the Anglesea Street property shortly before Mrs Hart turned four.

1. Mr and Mrs Harris did not have children. He ran a business manufacturing radios and, later, televisions. Mrs Hart said that after Mrs Harris moved out of the Anglesea Street property, she saw Mrs Harris regularly, sometimes two or three times a week, while she was a child. When she was 12 she moved out of her grandparents' house into a property that her parents were then renting nearby. She continued to see Mrs Harris regularly. However, she was told by her mother words to the effect that:

"With Aunt Betty, it is the case that children should be seen and not heard. You should wait for Aunt Betty to speak to you first before you speak to her."

1. There was little contact between Mrs Hart and Mrs Harris after Mrs Hart's childhood. Mrs Harris attended Mrs Hart's wedding in 1955. She and Mr Harris visited Mr and Mrs Hart's home on several occasions between 1964 and 1966. Mrs Hart said that throughout her adult life she followed her mother's instruction that she should not initiate contact with Mrs Harris, but rather should wait for Mrs Harris to make contact with her. Apart from possibly meeting Mrs Harris in town occasionally for a cup of coffee with her mother, Mrs Hart could not recall meeting Mrs Harris between 1966 and 1992. In her oral evidence she said she recalled talking to Mrs Harris on the phone quite often. I do not accept that evidence. For reasons which follow I do not consider Mrs Hart to be a reliable witness and I do not accept her uncorroborated evidence of her communications with Mrs Harris.

1. Mr Harris died in February 1991. In late April 1991, Mrs Harris asked Mrs Hart to become a director of Mrs Harris' investment company, Girton Investments Pty Limited. Mrs Hart agreed to become a director and signed a consent to act. She did not do anything as a director. She did not have any meetings with Mrs Harris. In 1994, she telephoned Mrs Harris and asked if her house would be safe if she were a director. Mrs Harris became agitated. She said "Of course it is". She sent papers to Mrs Hart for her to resign as a director, which she did.

1. The only other meaningful engagement between Mrs Hart and Mrs Harris prior to December 2004 was in 1992, when Mrs Hart visited a property owned by Mrs Harris at Burradoo. After that trip Mrs Hart did not see Mrs Harris again until she visited her in hospital on 6 January 2005.

1. Mrs Hart said that she spoke by telephone to Mrs Harris at least once a month from the visit to Burradoo in 1992 until approximately 2003. Under cross-examination, Mrs Hart said that Mrs Harris called her to discuss a court case concerning a car that Mr Harris had allegedly sold. She said that Mrs Harris stopped ringing when the court case was concluded and that the court case was current when she visited Burradoo in 1992. I do not accept Mrs Hart's evidence in her affidavit that she continued to speak to Mrs Harris by telephone until approximately 2003. That evidence was substantially retracted in cross-examination.

1. Thus, Mrs Hart had little contact with her aunt after 1966, apart from one visit in 1992 and a short episode where she assumed the office as a director of Girton Investments, but resigned in circumstances in which it can be inferred that Mrs Harris was less than enamoured with her.

1. Mr Warwick Mertell gave evidence that when his mother (Melva) died in 2001, he took it upon himself to keep in touch with Mrs Harris. He telephoned about every three months. This evidence was not challenged and I accept it. But the last time Warwick Mertell saw Mrs Harris before 2005 was in 1992, notwithstanding that they both lived in Sydney. There was no contact at Christmas or for birthdays.

1. Mr Philip Mertell had less to do with Mrs Harris. He lived in the United Kingdom from 1986. He had had some contact with his aunt when she was travelling to England and France and recalled speaking to and visiting her in the mid 1980s until the mid 1990s. She would contact him when she was in England and they would speak by telephone.

1. Mrs Nickolls deposed that Mrs Harris did not share many family occasions with her or any other family members. When Mrs Nickolls was 19 (at which time Mrs Harris was in her 50s), it was proposed that she travel with Mr and Mrs Harris to Europe, but her mother ultimately did not allow it to happen. Her most frequent contact with Mrs Harris was through her teens to her early 20s when Mrs Harris was in her 50s. She observed that Mrs Harris was very devoted to her husband who did not enjoy family occasions and consequently Mrs Harris did not seek much family contact.

1. Mrs Harris had fallen out with Mrs Nickolls' mother, Flo. In her 1996 will, Mrs Harris wrote that she had deliberately not provided for her sister, Flo, due to past animosity between them.

1. Mrs Harris' interest was in horse racing. Her husband had been vice-chairman of the Sydney Turf Club. It appears that after her husband's death, she had no close friends. She was not close to any of her relatives.

1. Mr and Mrs Gray moved into their property in Wyuna Road, Point Piper, adjacent to the property occupied by Mr and Mrs Harris at the end of 1977. From 1978 until 1984 their contact was mostly with Mr Harris. After Mr Harris' death in 1991, there was greater communication between Mr and Mrs Gray and Mrs Harris. They became better acquainted with Mrs Harris from about December 1999. Around this time, she had injured herself after falling into her empty swimming pool. Mr and Mrs Gray visited her every second day at St. Vincent's Hospital for about a month. During one visit to St. Vincent's Hospital, Mrs Gray expressed the wish to contact Mrs Harris' relatives to let them know that she was in hospital. Mrs Harris forbad it.

1. Mr Harris had been convicted of a criminal offence in 1986 and sentenced to imprisonment. On another occasion when Mr and Mrs Gray visited Mrs Harris at St. Vincent's Hospital following the fall into the swimming pool, Mrs Harris complained to them that while Mr Harris was in prison she had received no support from any of her relatives whom she had not seen for years.

1. Mrs Harris gave Mr and Mrs Gray a key to her Point Piper property. She gave Mrs Gray the key when she was due to be discharged from hospital in 2000 following her fall. She asked Mrs Gray to keep the key. From this time, Mr Gray helped Mrs Harris with tasks such as replacing light bulbs and wheeling out her garden refuse bin, when necessary. On about four occasions when Mrs Harris was away from her Point Piper property visiting a property she owned in Burradoo, she telephoned Mrs Gray to ask her to check on her house to make sure she had not been robbed, which Mrs Gray did. It does not seem that Mrs Harris had any closer friends than the Grays. She had fallen out with her opposite neighbours over building work of those neighbours.

Mrs Harris' living arrangements, failure to pay tax and allowing company to be deregistered

1. By 2004, Mrs Harris' routine was to rise early and clean her house, of which she was very proud, each morning. She would later change and walk from Point Piper to Double Bay to shop. She took a taxi home from shopping. She did her own banking. She lived independently. She had no GP. She did not employ a cleaner for her house. She prepared her own meals. She employed a man to clean her pool and another man to tend her garden. She also employed a man to mow a small amount of grass on or outside her property. She paid her regular bills.

1. Mrs Harris owned two properties in the Southern Highlands. One was a block of three units at Bowral that was tenanted. The tenancy was managed by the local real estate agent, L J Hooker. She also owned a house at Burradoo. She had a caretaker for that property.

1. Mrs Harris became registered as the proprietor of lots of land on Kangaloon Road, Bowral and residential flats in Toongoon Road, Burradoo on 28 January 1992. She inherited these properties from her late husband. Mr Harris SC submitted that the land on Kangaloon Road, Bowral and Toongoon Road, Burradoo had never been included in Mrs Harris' land tax returns. The relevance of this submission was that Dr Beveridge said that Mrs Harris' failure to attend to her taxation obligations was symptomatic of dementia. An alternative hypothesis is that Mrs Harris simply avoided paying tax. If her avoidance of her tax obligations dated back as far as 1992 it would not be attributable to dementia. If that avoidance was significantly later, for example from about 1998, it might or might not be attributable to early dementia.

1. There is no evidence that Mrs Harris failed to pay land tax from 1992.

1. Mr Swindells deposed that after his appointment as financial manager, he obtained the name of Mrs Harris' former accountants, Hill Rogers by reviewing "a number of boxes containing financial information that had been held at Mrs Harris' house". This must have been material removed on 10 and 11 January 2005 (see para [16] above). Mr Swindells deposed that, having obtained from Hill Rogers copies of their final correspondence with Mrs Harris, including the last income tax return lodged for her and for Girton Investments Pty Limited, he determined that Mrs Harris had not lodged income tax returns for either Girton Investments or herself since 1998. He gave no evidence of there being outstanding land tax.

1. It appears that Mrs Harris paid land tax. She signed a cheque for land tax in June 2005. The only properties on which land tax would have been payable by her were the Burradoo and Bowral properties.

1. In its reasons of 3 February 2005, the Tribunal observed that there were many aspects of Mrs Harris' financial affairs that had been allowed to slide in relation to income tax, land tax and the deregistration of Girton Investments. The evidence does not show in what respect, if any, Mrs Harris had failed to meet her own liabilities for land tax.

1. Girton Investments had owned five lots of land in Eridge Park Road, Burradoo. It sold two lots in 1998 and a further lot in 1999. On 12 July 2000, Hill Rogers advised Mrs Harris that the 1998 financial statements of Girton Investments had not been completed. Capital gains tax was payable on the sale of the lots sold in February and May 1998. Hill Rogers advised that the 1998 financial statements of Girton Investments had not been completed as Mrs Harris had advised there were considerable other expenses incurred on the properties since their purchase. Their files did not have information of such further expenses. No calculation had been made of capital gains tax that would be payable in respect of the property sold in 1999. Their calculations of the capital gain on the two properties sold in 1998 was that there was a capital gain of approximately $176,000.

1. Mrs Harris terminated the services of Hill Rogers in about 1999. They had prepared personal income tax returns for her up to the years ended 30 June 1998. Mr Sweeney deposed that her personal income tax returns after that year were outstanding. Mrs Gray tendered correspondence from the Australian Taxation Office (the "ATO"). On 16 March 2001, the ATO wrote to Mrs Harris at her house at Point Piper noting that her income tax returns for the years ended 30 June 1999 and 30 June 2000 were overdue. On 12 March 2002, the ATO advised that the returns for those years and for the year ended 30 June 2001 were overdue. There was follow up correspondence in May 2002 threatening legal action. On 14 May 2002 the ATO noted that there had been a recent inquiry (it can be inferred from Mrs Harris) about lodgment of her tax returns for those periods. The ATO said that "In view of your current circumstances we will delay further action ... until 2 August 2002". It is not known what Mrs Harris said. On 27 February 2003 the ATO again wrote to Mrs Harris. It indicated that her return for the year ended 30 June 2002 was overdue. This was followed up by a letter of 15 July 2003 where the ATO stated that its records indicated that it had not received Mrs Harris' income tax return for the period from 1 July 2001 to 30 June 2002. No reference was then made to the returns for the three years 1998 to 2001.

1. Counsel for Mrs Gray submitted that I should infer that Mrs Harris had attended to the filing of her income tax returns for those years. There was no evidence from an officer from the ATO as to what returns had been lodged and when. There is a number of possibilities. It may be that Mrs Harris lodged returns for the years 1998 to 2001. But Mr Swindells deposed that he engaged the services of HLB Mann Judd to prepare and lodge income tax returns for years which included those years. He deposed "the income tax payable by Girton in respect of the years 1998 to 2004 was $128,106.36. The income tax payable by Mrs Harris was $174,104.95." Although his affidavit does not expressly state that Mrs Harris had not lodged income tax returns for the years from 1998 to 2001, he did say that the records he obtained from Hill Rogers showed that Mrs Harris had not lodged income tax returns for Girton Investments or herself since that year (i.e. 1998). If he had learned that Mrs Harris had nonetheless lodged income tax returns for those years, he would have been bound to say so in order to tell the whole truth. He was not cross-examined on this evidence. Whilst for reasons below I have considerable reservations as to Mr Swindells' credit, in the light of his evidence, I do not infer from the correspondence from the ATO that returns were lodged for the years 1998 to 2001 (before they were lodged by Mr Swindells' firm, HLB Mann Judd). Rather, I infer that the ATO had made some arrangement with Mrs Harris in 2002 in relation to the lodgment of her tax returns for those three years, and it was because of this that the ATO did not refer to the outstanding 1998 to 2001 returns in its correspondence in 2003.

1. Tax returns were not filed by Mrs Harris on behalf of Girton Investments since 1998. Nor were annual returns for the company lodged. Although it continued to own two blocks of land in Burradoo, it was deregistered by ASIC in 2002 for failing to lodge annual returns. The last annual return lodged for Girton Investments had been lodged electronically on 7 September 1999 by Hill Rogers. The registered office of the company was Mrs Harris' address in Wyuna Road, Point Piper. Counsel for Mrs Gray submitted that I should infer that notice of the intention to deregister would have been sent to Hill Rogers as the lodging party or registered agent of Mrs Harris. Whilst there is evidence that, in 2012, it is ASIC's practice to send invoices for annual review fees to the company's registered agent, I do not infer that when ASIC gave notice, as it was required to do under s 601AB(3) of the Corporations Act 2001 (Cth), of its proposal to deregister the company, that the notice was only given to Hill Rogers. ASIC was required to give notice of that proposal both to the company and to the company's directors. The annual return gave the company's registered office and principal place of business as Mrs Harris' address at Wyuna Road, Point Piper. I think it improbable that notice would not have been given to Mrs Harris at her Point Piper address.

1. Thus, for some years before her admission to hospital in 2004, Mrs Harris had not attended to her taxation obligations and had allowed Girton Investments to become deregistered. Understandably, these were critical matters in relation to the Tribunal's decision in February 2005 to appoint a financial manager. They are some of the matters relied on by Dr Beveridge as indicating that Mrs Harris suffered from frontal lobe impairment due to dementia that affected executive thinking.

Admission to hospital in 2004

1. The first detailed assessment of Mrs Harris' cognition by a medical specialist was made by Dr Beveridge on 4 January 2005. He assessed Mrs Harris as having a "mild-moderate dementia of the Alzheimer type". He later modified that diagnosis to one of moderately-severe dementia of the Alzheimer type with atypical features. Counsel for Mrs Gray submitted that he did not sufficiently allow for Mrs Harris' physical ailments and the effect of her hospitalisation.

1. On the morning of 8 December 2004, as Mr and Mrs Gray were leaving their house by car, Mrs Harris went to her gate and motioned them to stop. She was dishevelled and dressed in night attire with dark stains down her front. She asked for help and said she felt dreadful. She said that she had waited for the Grays last night but had missed them because they came home early. She had said she had vomited and had not been able to keep anything down. Mrs Gray asked why Mrs Harris did not contact her when it started. Mrs Harris said "I have had a good innings. I have come to my end. I am dying. I know I am dying. I have thought about it and I am happy to go." Mrs Gray called an ambulance. As Mrs Harris left with the ambulance officers Mrs Harris gave Mrs Gray her handbag so that she had her key, and asked Mrs Gray to stay behind and lock up the house with her key.

1. The notes of the ambulance officer and the hospital notes on Mrs Harris' admission reported that she presented with weight loss and had been unable to eat for 12 days. She was put onto IV fluids. The nursing notes record her being melancholic and saying that she would rather be dead. The notes of the ambulance officer recorded her as being alert and oriented, but pale and obviously dehydrated. A Mini-Mental State Examination ("MMSE") was carried out on her admission. She recorded a score of 22 out of 27. An MMSE is a screening tool for cognitive function. The form used by St Vincent's Hospital stated that if a patient scored less than 24 out of 30, the possibility of dementia should be considered. Part of the test could not be administered because of Mrs Harris' poor vision. She did not have her glasses. Even with her glasses, Mrs Harris had very poor vision. This was due to cataracts which had been untreated both before and after her admission to hospital.

1. Mrs Harris was diagnosed with a bowel obstruction. Professor Watson said, and I accept his evidence, that this would have prevented her from being able to feed herself for the days prior to her belatedly seeking help. Dr Beveridge points to her failure to call an ambulance days earlier as further indication of her suffering moderately severe dementia.

1. After admission, Mrs Harris was in a ward on Level 8 South at St. Vincent's. The hospital notes for 8 December 2004 described Mrs Harris as being "generally coherent, but not fully oriented", she gave the year as 1994, she could not remember the name of the Prime Minister and could not remember the year she was born.

1. Mrs Gray visited Mrs Harris in hospital on 9 December 2004. Mrs Harris identified Mrs Gray as her neighbour. A social worker present asked Mrs Gray whether she knew of Mrs Harris' relatives. Mrs Gray said she did not know her relatives. Mrs Harris said she had had nothing to do with them for years and did not want them around. She said "What has it got to do with them? Why would you be contacting them?" Mrs Gray gave evidence that the social worker said that she thought Mrs Harris had a niece in Coffs Harbour. Mrs Harris said "Yes, but I don't remember her name." She said there were two nephews who "lived down south somewhere called Mertell" but there was no point contacting them. She said "When Keith died they hid in the bushes in Wyuna Road and I went down to the street and abused them and they ran off". Mrs Harris did not mention Mrs Nickolls' name to the social worker. In a low voice she said to Mrs Gray "You know about Anne, but if you mention her I will never speak to you again". The social worker's notes of 9 December 2004 record:

"Pt [patient] has competently nominated a neighbour of 34 years Beatrice Gray [xxxx yyyy (telephone number)] as person to notify in case of emergency. Pt states she has not spoken to any family members for 13 years and wishes for no one to be contacted. Pt does not have any contact number, addresses or names of her nieces and nephews. Pt's husband deceased. Pt's 2 sisters and brother deceased. ... Requested for nephews and nieces to only be contacted if she may pass away. Pt clearly states she does not want them contacted now. Pt would like Beatrice Gray to be person to notify and look after any arrangements as required."

The notes are consistent with Mrs Gray's evidence referred to above. I accept that evidence.

1. Mrs Harris was initially reluctant to consent to an operation for the removal of the bowel obstruction. With Mrs Gray's support, she ultimately consented to the operation. If she had not had the operation, she would have suffered a painful death. She was told that the risk of the operation was that she could suffer a cardiac arrest. In response to this Mrs Harris said words to the effect "That would solve it. You wouldn't do anything to revive me? I am absolutely clear that I don't want to be in a bed or a nursing home. I want to be well enough to go back home." She was told by a doctor that she would need time to recover, but after that she should be well enough to go home. She then gave her consent to the operation.

1. A blood test on 8 December 2004 showed that Mrs Harris had very low vitamin B12 levels. This was not picked up in her treatment when she was in hospital. Professor Watson said that low vitamin B12 levels can be associated with a wide variety of neuropsychiatric abnormalities, but is treatable (3/736). It was his opinion that "it is possible that in Mrs Harris' case, severely unwell and very likely in a hyper catabolic state that the significance of the low B12 level could have been heightened." Doctor Beveridge said that if Mrs Harris had dementia due to vitamin B12 deficiency, then she would still have the dementia four months later (that is, around the time of Professor Watson's consultations with Mrs Harris), as the vitamin B12 deficiency was not redressed. Although it was not redressed in hospital, Professor Watson stated that once Mrs Harris resumed a more normal diet and received oral vitamin supplementation, it was possible that any effects of the low vitamin B12 level were ameliorated.

1. Mrs Harris had surgery for the bowel obstruction on 9 December 2004. On a visit by Mrs Gray on 12 December 2004, Mrs Harris complained of being in terrible pain and said that she should have died. Nursing notes for 11 December 2004 record Mrs Harris' wishing she were at home and asking if she could just die. She was reassured. Notes for 12 December 2004 record Mrs Harris' having made repeated requests over the last few days that she did not want to have any invasive treatment and she was happy to die. Notes for the same day record her as being very confused and screaming and pushing nurses away when they got close enough to help. On 13 December 2004, the nursing notes record that Mrs Harris was confused and stated that she was "seeing lots of people in the room". A note of a medical examination on 13 December 2004 recorded that Mrs Harris was apparently confused, but on examination was alert and oriented. The doctor noted multifactorial symptoms of post-operative delirium against a background of probably mild dementia. The note was apparently that of Dr Alina Stoita, then a medical registrar. She suggested that the hospital should try to avoid morphine for pain relief as it seemed to produce hallucinations. She proposed to review Mrs Harris the next day with Dr Beveridge.

1. Doctor Beveridge and Dr Stoita saw Mrs Harris on the next day, 15 December 2004. Doctor Beveridge said that the purpose of the consultation was to see whether Mrs Harris was suffering from delirium. He concluded that there was no evidence of delirium on that day once the administration of morphine had ceased. He said he would be happy to consider Mrs Harris for rehabilitation once she had improved and was starting to mobilise. That was a short, ten-minute consultation. At that time Mrs Harris seemed oriented and had a reasonable and appropriate conversation with Dr Beveridge. Dr Beveridge agreed that, if he was required to consider whether an elderly person is suffering from delirium, he must automatically consider whether they might be suffering from dementia. From the absence of any note of this consultation that Mrs Harris was suffering from dementia, it was suggested to Dr Beveridge that he must have concluded that he was then satisfied that she was not suffering from dementia. He rejected that proposition, stating that he did not test her for that at that point. He had no cognitive history other than the notes and history from his registrar and the point of the consultation on that day was to determine whether Mrs Harris was still acutely confused. She was not. He did not exclude dementia. I accept that evidence.

1. Mrs Harris continued to complain about her condition, stating that she wanted to die. She was unco-operative. She refused to shower or mobilise. She was reluctant to drink and refused food. She was still in pain. On 16 December 2004, she vomited black bile whilst Mrs Gray was visiting her.

1. On 17 December 2004, Mrs Harris spoke to a social worker about making a new will. The note records that Mrs Harris "said she probably should've started thinking about what to do about her affairs earlier (Joking!)" She did not ask for assistance in making a new will. The social worker's note also records: "she told me she has a niece in the North and nephews out of Sydney".

1. On 20 December 2004, a physiotherapist's note recorded that her legs were oozing a lot of fluid. A nursing note on 23 December 2004 also recorded that Mrs Harris' limbs had been leaking fluid for 24 hours, that she was incontinent and had passed blood and that her skin condition was very poor. The physiotherapist's note of 22 December 2004 records that Mrs Harris was still feeling depressed and wanted the family to be notified as well as her lawyer.

1. When Mrs Gray visited Mrs Harris on 21 December 2004, she had been moved to level 7 North. Mrs Gray said that she was sitting in a chair and was alert. Mrs Harris said that she was worried about her will and wanted to make a new will to get her affairs in order. She said that her nephews and nieces had done nothing for her and had not given her any comfort or support. Mrs Gray said that "You've never talked to me about them. You wouldn't name them and you would never let me contact them, so whose children are they?" Mrs Harris replied "Coralie belongs to Lorna. I was closest to Lorna. It was really Lorna's idea to give my money to Coralie. ... " Mrs Gray asked about the Mertells. Mrs Harris said "They are a pretty pathetic lot. They would be useless to me. I don't think they would be able to do anything for me. There would be no point in me asking them to do anything for me." Mrs Harris also said "You know Anne and we are not discussing her. She is a bitch."

1. Mrs Harris had been accustomed to using strong language all her life. Mrs Nickolls said that she had always "sworn like a trooper".

1. Mrs Harris continued to refuse to mobilise. Physiotherapy notes on 23 December 2004 recorded that she was adamant that she was not getting out of bed or sitting in the chair on that day. She refused to do so despite encouragement.

1. On 23 December 2004, the notes of a social worker, Ms Kennon, recorded that Mrs Harris appeared confused and anxious in relation to her belongings. She was adamant that someone had stolen her wallet. She was given reassurance, but asked that her belongings be located. They were. Her wallet had not been stolen. Doctor Beveridge later noted that such a statement was typical of persons with dementia.

1. Ms Kennon's notes of 23 December 2004 recorded that Mrs Harris appeared confused in regards to her will. She recorded that, before surgery (i.e. before 9 December 2004), Mrs Harris had told her that she had left money to her niece in Coffs Harbour. On 23 December, when this was mentioned to Mrs Harris, she was unable to recollect the conversation. However, she was able to give Ms Kennon the name of her solicitor. Ms Kennon's notes read "Pt is requesting me to contact lawyer Richard Spinak, [telephone number given]. Pt believes Richard has her will."

1. Ms Kennon discussed Mrs Harris' family with her. She asked Mrs Harris if she would like her to contact her niece and nephew. She recorded that Mrs Harris appeared hesitant, that she stated that she had a niece, Coralie Hart, in Coffs Harbour, but did not have any contact numbers for her. At that stage she did not want Ms Kennon to investigate contacting any other relatives. An inquiry made by Ms Kennon on the same day to the law firm confirmed that, whilst Mr Spinak no longer worked for the firm, Mrs Harris' will was still with that firm. However, due to the Christmas holidays, no solicitors were available to discuss her affairs. Ms Kennon told this to Mrs Harris, who asked her to try to contact her niece. Mrs Harris said that she did not have any contact numbers for Coralie Hart, but believed the numbers were in the will. Mrs Harris was concerned that she may have council bills that needed to be paid. Ms Kennon suggested that she would contact Mrs Gray in relation to the mail.

1. By 21 December 2004, Mrs Gray was dissatisfied with the care Mrs Harris was receiving. She spoke with a person whom she describes as a mature age man she took to be a doctor, saying that she wanted to talk about getting Mrs Harris' cataracts done. He said "we won't be doing anything about them. Her teeth have settled and a podiatrist has been booked for her feet". Mrs Gray responded by saying that the podiatrist was booked on 9 December and it would assist Mrs Harris to walk and "she surely must be at the top of the list by now".

1. When Mrs Gray visited Mrs Harris on 23 December 2004 she observed that her condition had deteriorated since her admission. Mrs Harris said "You have to get me out of here". Mrs Gray said that she could not and to get out of the hospital Mrs Harris would have to walk the corridors. Mrs Harris said "I am not up to it. I am in pain." Mrs Gray said "You will not be up to anything if you don't start eating." Mrs Harris was uncomplimentary about the food.

1. Doctor Beveridge saw Mrs Harris on 24 December 2004. She had been placed in a geriatric ward under his care. His registrar's notes of the consultation record that Mrs Harris was then not currently suitable for rehabilitation as she was amotivated and did not appear to be improving. She currently required a high level of care and if rehabilitation were not an option she would have to go to a nursing home or have 24-hour care at home. At that time, she was refusing both of those options.

1. Mrs Harris was seen by a clinical nutritionist for the first time on 24 December 2004. The nutritionist noted that "ideally she should have been referred a lot earlier" (emphasis in original). She noted that Mrs Harris was very depressed and angry, stating that she wanted to die. The nutritionist's note records:

"Apparently eating very little - it appears her nutritional intake has been appalling for at least a month (nutrition support during this admission very suboptimal)".

1. On 26 December 2004 (Boxing Day), Mr and Mrs Gray visited Mrs Harris. Mrs Gray took a quantity of mail. It was all accounts. The accounts were read out. Mr Gray wrote out cheques which Mrs Harris signed. She examined each cheque closely with a magnifying glass before she signed it. It was a slow process.

1. On 29 December 2004, Mrs Harris was seen by a Dr Brennan. The registrar noted that part of the plan for treating Mrs Harris was for the surgical team to do an MMSE. The Mini-Mental State Examination conducted on that day resulted in a score of 25/30.

1. The hospital managed to contact Coralie Hart. On about 30 December 2004, a nurse telephoned and told Mrs Hart that her aunt Betty was in hospital. She put her through to Mrs Harris. According to Mrs Hart, there was a conversation to the following effect:

"The next voice that I heard was Betty's voice. I then had a conversation with Betty to the following effect:

I said: 'Are you alright?'

She said: 'Yes. But I think I might have to sell Point Piper' (I assumed that Betty was referring to her home at Point Piper).

I said: 'Don't be rash. You might not have to. You need to speak to your solicitor.'

She said: 'He's away'.

I said: 'Well, I will come down and we will try to get in touch with him'."

1. Mrs Hart rang the following day. Mr Gray answered the phone. At that time Mrs Harris said that she did not want to speak with Coralie Hart. Mr Gray tried to persuade her to do so, and Mrs Harris said to ask her to ring back that night.

1. According to Mrs Hart, in the second conversation, as well as the first, she said to Mrs Harris that she would come down to Sydney. According to Mrs Hart, Mrs Harris said to leave it for a few days until everybody got back to work, which she did. Mrs Hart then visited Mrs Harris for the first time on 6 January 2005.

1. If Mrs Harris said the words attributed to her by Mrs Hart in the first conversation, it would show that she was at least confused as she had no need to sell her house. But I do not accept Mrs Hart's evidence that Mrs Harris said those words. There is nothing in the hospital notes or in Mrs Gray's evidence to suggest that Mrs Harris was thinking that she might need to sell her house. She was very proud of her home and if she had come to believe that she needed to sell it, it is probable that she would have made that clear to persons other than Mrs Hart. Mrs Hart was an unsatisfactory witness. There were numerous inconsistencies between her evidence in cross-examination and her affidavit evidence. Her evidence in important respects referred to below is inconsistent with other clear objective evidence (in particular, in relation to her reason for deciding to apply for guardianship and financial management orders from the Guardianship Tribunal, rather than to pursue the possibility of Mrs Harris giving a power of attorney). Her conduct in removing documents from Mrs Harris' house without authority is discreditable.

1. I do not accept Mrs Hart's evidence that she told Mrs Harris she would come down to Sydney to see her. Mrs Hart said that she spoke to Mrs Harris on 30 and 31 December 2004 and on 3 January 2005. On 4 January 2005 Mrs Hart posted a letter addressed to Mrs Harris at her home in Wyuna Road, Point Piper. Her letter was dated 1 January 2005 and reads:

"Dear Betty,

You asked me to let you know my phone number and address. Phone [xxx yyyy]

Address [xxx yyy] Coffs Harbour 2450

Hope you get well soon.

Lots of love Coralie"

1. Mr and Mrs Gray took the envelope containing that card to Mrs Hart in hospital on about 6 January 2005. After they gave the card to Mrs Harris she said "You had better keep that because if I die you might want to contact her." As Mrs Hart accepted in cross-examination (T248) the reason she would have addressed that card to Mrs Harris at Wyuna Road, Point Piper was because she expected that Mrs Harris would be out of hospital soon and would be home by the time the letter arrived. It was posted on 4 January 2005. Mrs Hart did not visit Mrs Harris until 6 January 2005. She made no reference in the note to her intention to visit.

1. Doctor Beveridge saw Mrs Harris on 4 January 2005. He then diagnosed her as having a "mild-moderate dementia of Alzheimer type". He later modified that diagnosis, and now describes it as moderately-severe dementia of an Alzheimer type, but with atypical features. Dr Beveridge said:

"I think she had an atypical Alzheimer presentation or a mixed presentation of Alzheimer's and vascular disease." (T329)

1. On 4 January 2005, Dr Beveridge conducted a Mini-Mental State Examination of Mrs Harris. She scored 15/28. Things she got wrong included orientation as to place (she said she was in Bowral). Doctor Beveridge formed the opinion that there were no features of delirium, that Mrs Harris was highly perseverative and repetitive. She continued to say things such as "I want to die", "Why can't you kill me", and "I thought my insurance covered [homecare]". He said that she could not recall close relatives' details or her accountant's name.

1. This last is hardly surprising if she had not used an accountant for five years.

1. Doctor Beveridge recorded that Mrs Harris was "amotivated, rigid and resistant to care".

1. Doctor Beveridge could not recall whether, when he carried out the MMSE on 4 January 2005, in which Mrs Harris scored 15/28, he had looked at the earlier MMSEs or not.

1. Professor Watson carried out two MMSEs on Mrs Harris on 18 March and 18 August 2005. The results were 26/28 in each test. Doctor Beveridge acknowledged that those results were consistent with the two earlier MMSEs conducted at St. Vincent's and that the examination out of kilter was the one he conducted on 4 January 2005.

1. However, Dr Beveridge was at pains to emphasise (whether responsively to the question asked or not (e.g. T326-327)), that his diagnosis of dementia was based upon his observations and diagnosis over an extended period in which Mrs Harris was in hospital and where he saw her regularly, and where he observed that she did not have symptoms of delirium or impaired attention, nor fluctuating levels of consciousness or fluctuating confusion, but that her presentation of confusion or cognitive impairment was consistent.

1. The hospital needed the bed. Mrs Harris was resisting attempts by the hospital to feed and mobilise her. Doctor Beveridge was of the opinion that, as a priority, the hospital needed to identify the "person responsible" and someone who could provide financial management. The options were either high level care in a nursing home, or care at home with private carers. The reference to the "person responsible" was to a "person responsible" within the meaning of s 33A of the Guardianship Act 1987 (NSW). Such a person can give consent to the carrying out of medical treatment if the patient is incapable of giving her own consent. The only persons who might arguably have qualified as a "person responsible" under the Guardianship Act were Mr and Mrs Gray. But even then, it might be doubted whether they had a "close personal relationship" with Mrs Harris through "frequent personal contact" within the meaning of s 3E. In any event, the issues were not the giving or withholding of consent to medical treatment, but how the care of Mrs Harris was to be arranged where she was resistive to treatment and in need of carers either at her home or in a nursing home.

1. The views expressed by the Grays on 4 January 2005 to a social worker who assumed care for Mrs Harris, a Mr Constable, was that Mrs Harris should go home with help.

1. Mrs Hart visited Mrs Harris in the company of her daughter, Amanda Swindells, on 6 January 2005. They then met with Dr Beveridge and Mr Constable. Mr Constable's notes recorded that he and Dr Beveridge discussed with Mrs Hart and Mrs Swindells Mrs Harris' medical condition, the problem with her going home, the need to access her finances to pay for post-discharge care or a nursing home and the need to contact her solicitors. When they saw Mrs Harris, Mrs Hart and Mrs Swindells said that Mrs Harris was happy to see them, but was disoriented. She thought she was at Burradoo. She also said "Have you seen my beautiful view?". Mrs Hart assumed that Mrs Harris was referring to the view from her Point Piper home. She said that although there was a view from the window of Mrs Harris' room at the hospital, it was not one she would describe as "beautiful". Both Mrs Hart and Mrs Swindells said that Mrs Harris was confused during their visits.

1. On 6 January 2005, Mrs Hart signed a form known as an "ACAT application" seeking approval for Mrs Harris to access residential aged care or residential respite care. She did so at the request of Mr Constable, who completed the details on the form. The form stated that it should be signed by the applicant, that is, Mrs Harris, and only in exceptional circumstances should someone else sign it. Mrs Hart signed, stating that Mrs Harris was unable to sign because she was confused.

1. Mr Constable said that the reason the form sought only approval for residential aged or respite care was because he was aware that Mrs Harris' wealth was such that she would not qualify for government assistance for the provision of carers to attend on Mrs Harris at her own house.

1. On 6 January 2005, Mr Constable told Mrs Gray that Mrs Harris could be discharged to a nursing home when financial matters were arranged. Mrs Gray objected. She told Mr Constable that Mrs Harris had only consented to the operation on the basis that she would not be sent to a nursing home. Mrs Gray said that Mrs Harris should be sent to her own home and that she could afford to be there. Mr Gray said words to the effect "You have left Betty sitting here for weeks waiting for these people [that is, Mrs Harris' relatives]. There is no medical reason for her having been left here. She is entitled to rehabilitation and you have not mentioned rehabilitation." Mr Constable said that Dr Beveridge did not propose any period of rehabilitation.

1. Mrs Harris told Mr Constable that she wanted to go home. She told him that she could manage on her own. That was not the view of Mr Constable or Dr Beveridge. Mr Constable gave evidence that the reason he told Mrs Gray that Dr Beveridge did not propose any period of rehabilitation was that a patient was not offered rehabilitation if they did not have either the physical or cognitive ability to undergo rehabilitation. So far as he and Dr Beveridge were concerned, that was the position. Later, events proved their opinion to be wrong.

1. Mrs Hart deposed that on her first or second visit to the hospital, Dr Beveridge told her that Mrs Harris was suffering from advanced dementia, needed 24-hour care, and that the best solution would be a good nursing home. Dr Beveridge reviewed Mrs Hart's affidavit and made no comment on this evidence. Accordingly I accept Mrs Hart's evidence that Dr Beveridge did express that opinion.

Removal of Mrs Harris' documents from her home

1. On 10 January 2005, Mrs Hart visited Mrs Harris with her daughter, Amanda Swindells. According to her affidavit, Mrs Hart said to Mrs Harris words to the effect: "Mandy and I would like to go to Point Piper to see if we can find any papers which show who your new solicitor is. Do you have the keys?" She deposed that Mrs Harris gave her the keys and asked her also to look for her engagement ring. On that day, Mrs Hart and Mrs Swindells went to the Point Piper property. Mrs Hart deposed:

"We searched through some drawers in Betty's bedroom and found several documents, including Betty's will dated 9 July 1996. ..."

1. In fact, Mrs Hart made a comprehensive search of the house looking for documents. Mrs Hart took not only the copy of the will that she discovered, but also bank books, bank statements and title deeds. Mrs Hart said that "we were anxious to find out if she had enough money to go into the best nursing home, or be home for care" (T264). The bank statements would have shown that Mrs Harris had several hundred thousand dollars in the bank. The documents removed took up two large plastic shopping bags. Mrs Hart and Mrs Swindells returned the following day to complete the search. They had no authority from Mrs Harris to remove any documents.

1. Mrs Hart did not tell Mrs Harris that she had removed the documents.

1. On 11 January 2005, Mr Swindells arranged for searches to be made of land registered in the name of Mrs Harris or Girton Investments.

Conference on 13 January 2005

1. Mr Constable arranged a conference between Mrs Hart, Mrs Swindells, Mr and Mrs Gray, Dr Beveridge and himself. The meeting took place on 13 January 2005. He recorded that the purpose of the meeting was to sort out finances so that after-care plans could be made.

1. There was disagreement about what was said at the meeting on 13 January 2005. However, some things are clear. Mr and Mrs Gray did not accept Dr Beveridge's opinion that Mrs Harris had moderately severe dementia. They said that Mrs Harris should not go to a nursing home, but should be discharged to her own home where she could afford to pay for carers. Secondly, Dr Beveridge did not take kindly to Mr and Mrs Gray, who were both barristers, disputing his opinion. In his report provided for the purposes of the hearing, Dr Beveridge said:

"My recollection of this family meeting was one where there was significant tension and conflict between parties in the room. The Grays sat on one side, Mrs. Hart and Mrs. Swindells on the other. Mrs. Harris was not present as she would have disrupted the proceedings and was not considered able to evaluate her care and decision needs. The Grays were not accepting of the team opinions on Mrs. Harris' diagnosis, her situation and care needs. They did not accept that there might have been some background cognitive decline. Mrs. Hart and Mrs. Swindells expressed on a number of occasions their wish for Mrs. Harris to receive the best care she needed. In this meeting there was no ability to reach a consensus decision, largely in my opinion as the Grays were not agreeing that there was a problem facing Mrs. Harris. In my years of experience with family conferences I do not remember another with the level of adversarial approach by participants. The Grays remain notable in my mind for their inability to assist in an outcome for the patient. It appeared to be a matter of who was in control, and the Grays certainly were not appearing to relinquish control, even to me in this meeting to discuss my diagnosis and management issues.

...

I believe that the outcome of the conference was that there was no collaboration between the parties, they remained in conflict, both suspicious of each other's motives ..." [CB 5/1707, 1708]

1. Mrs Hart was certainly suspicious of the Grays. Mrs Hart's evidence was that Mrs Gray said that she and her husband should have a power of attorney to look after Mrs Harris' affairs. According to Mrs Hart, her response was: "If you have power of attorney you could steal my inheritance." However, it was agreed at the meeting that if Mrs Harris could give a power of attorney, it would be given jointly to Mrs Hart and to Mr or Mrs Gray. Mr Constable's note of the meeting recorded that:

"Meeting consisted of the two parties i.e. relatives and neighbours coming to terms with how best to resolve the issue of who should have POA, or if not given, who would be financial manager either Guardianship Tribunal/Supreme Court. Agreed if POA can be given by [patient] then go that route. [Social worker] to contact Law Society and get a list to make selection."

1. Doctor Beveridge gave evidence that:

"The only concrete resolution other than the antipathy and lack of trust between the two parties was to then determine if Mrs Harris could comprehend and [sign] a power of attorney. I had my doubts and later felt this was not a feasible option. But as I had not formally tested for this ability it was our undertaking to try this option, as it was less confronting than Guardianship."

Application to Guardianship Tribunal

1. After returning home, Mrs Hart changed her position. I infer that she did so after speaking to Mr Swindells. He took immediate legal advice. The following day, Mr Swindells told Mr Constable that Mrs Hart and his wife were upset about the course of the meeting on 13 January 2005, and had taken legal advice. Mr Swindells asked Mr Constable not to proceed with a power of attorney, and said they would go to the Guardianship Tribunal.

1. Mrs Hart and Mrs Swindells said that this course was taken because Dr Beveridge had said that Mrs Harris did not have the capacity to execute a power of attorney. I do not accept that evidence. It is not consistent with the evidence of Dr Beveridge, Mr Constable or Mrs Gray. Dr Beveridge said that it was "later" that he examined Mrs Harris for her ability to understand a power of attorney (CB7/1709). Moreover, it is contradicted by the steps Mr Constable took as recorded in his notes. After the meeting on 13 January 2005, Mr Constable contacted the Law Society and obtained the names of solicitors who might act, and contacted one such solicitor. He stopped pursuing that course of action after hearing from Mr Swindells.

1. I am satisfied that having learnt that she was the beneficiary under her aunt's will, Mrs Hart decided to apply for guardianship and financial management orders in order, as she saw it, to protect her inheritance. She was suspicious that Mr and Mrs Gray would attempt to take control of Mrs Harris' finances.

1. On 17 January 2005, Mrs Hart applied to the Guardianship Tribunal for orders that she and her daughter, Amanda Swindells, be appointed guardians of Mrs Harris and that she and Mr Swindells be appointed as Mrs Harris' financial manager. The application stated that:

"Mrs Harris has been told of the application; I am not sure that she understands or will remember. She has said that she supports the application."

1. I do not accept that Mrs Harris ever said that she supported an application that guardians be appointed to her, or that a financial manager be appointed to her estate.

1. The application stated:

"Mrs Harris' illness means that she cannot make decisions for herself. Her doctors advise that she needs 24-hour care, and she needs to be placed in a suitable facility that can provide the care she needs. The application for appointment of Guardian is being made to enable us to place her where she can receive the best care."

1. The application included a statement of Mrs Harris' savings. Eight accounts were listed, two with the Commonwealth Bank in sums totalling $117,588, four with Westpac in sums totalling $958,344, one with a bank in France containing £487,194, and one with a bank in London containing £36,641.

1. On the same day as the application was signed, Mr Swindells telephoned Mr Warwick Mertell and advised him that Mrs Harris was in St. Vincent's Hospital. He made no mention of the intention to lodge the application with the Guardianship Tribunal.

1. The application was lodged with the Tribunal on 19 January 2005. On 21 January 2005, Mr Swindells told Mr Warwick Mertell that the application had been made. It was not until Friday, 28 January 2005 that a phone message was left by Coralie Hart for Mrs Nickolls to inform her that there was any problem with Mrs Harris. The message left was "There's been some drama with Betty. But don't worry - we are dealing with it. We've made an application to the Guardianship board. She's in hospital." On the Sunday, Mrs Nickolls was telephoned by Mrs Gray who had obtained Mrs Nickolls' telephone number from a mutual friend.

1. On 30 January 2005, Mrs Nickolls spoke with Mrs Hart. She suggested to Mrs Hart that, if guardians were needed and a financial manager were needed, it should be three people, namely Mrs Hart, Mr Mertell and Mrs Nickolls. Mrs Hart agreed. The following day Mr Swindells telephoned Mrs Nickolls and told her that she was obviously not aware that Mrs Hart was the executor and beneficiary of Mrs Harris' will. Mrs Nickolls' note, which I accept, was that Mr Swindells said that:

"no matter what I said or did the original application for carers/fmanager i.e. Coralie, Coralie Amanda and Darryl, would stand and no one would alter it and basically warned me not to try. I told him Coralie had last night agreed to the three and he replied 'well that's not happening.'"

1. At the Tribunal hearing on 4 February 2005, that opposition was not maintained. But I am satisfied that Mr Swindells was instrumental in the bringing of the applications to the Guardianship Tribunal and that his motive in doing so was to obtain control over Mrs Harris' finances to protect his mother-in-law's inheritance.

1. Doctor Beveridge and Mr Constable provided reports to the Guardianship Tribunal. In his report of 21 January 2005, Dr Beveridge stated:

"I first met Mrs Harris on 16th December 2004 to evaluate her for the presence of delirium postoperatively. At this time, she was scoring 22/30 [sic] on MMSE cognitive screening. There had been evidence of postoperative delirium but this was clearing with cessation of morphine. I next reviewed Mrs Harris on the 24th December to assist with long-term care planning and she was declining to mobilise after the operation. There was no apparent physical reason for her immobility.

Mrs Harrris was transferred to the geriatric care ward following this consultation and has been under my care for the past month, during which I have seen her at least three times a week. Over this time she has remained cognitively impaired and her most recent mental state examination score was 15/30 [sic], with no features suggestive of delirium. In spite of seeing Mrs Harris multiple times she still does not recognise me from day-to-day and interestingly when I reviewed her this week she presumed i was the kitchen staff in spite of my suit and stethoscope. She did not recognise when shown the stethoscope what it was and could not describe what profession I or my colleagues might engage in. She persistently believes she is residing in Bowral in spite of reorientation to her location at St. Vincent's Hospital. At times she does not recall her Sydney address and has had difficulty remembering the names of her neighbours. It was initially difficult to establish contact with any family or friends as she had no recall of their contact details.

Mrs Harris clearly has a significant impairment with a moderate severity dementia, most likely of Alzheimer-type, with frontal features of impaired insight, planning, judgement and motivation. She remains reluctant on many occasions to mobilise or transfer out of bed.

Mrs Harris has significant wealth, it appears, owning properties in Point Piper, Bowral or Burradoo as well as owning three cars which she does not drive but maintains the registration upon. She apparently has accounts in France and England with substantial amounts of money. Mrs Harris to the best of her ability in searching does not appear to have appointed a Power of Attorney. Investigation of her previous legal and financial matters indicates that she terminated the services of both her lawyers and accountants many years ago.

1. Mr Mitchell raised with Mrs Harris the fact that the Tribunal had stated in its February decision that she had not filed any income tax returns since 1999. She told him that she only had her properties and the income on them was less than the expenses. She said that as far as she knew, land tax had always been paid. The precise position concerning Mrs Harris' financial affairs was not made clear. The returns lodged by Mr Swindells were not tendered. Professor Watson said that, presuming that it was not true that Mrs Harris' expenses exceeded her income, nonetheless her belief and inaction did not mean that she was demented.

1. Doctor Beveridge's diagnosis of moderately severe dementia was inconsistent with the FAB scores obtained by Professor Watson on 18 March 2005 and on 18 August 2005. The FAB is a screening test to assess frontal lobe (executive) function, being more sensitive to frontal lobe dysfunction than the Folstein MMSE. Dr Beveridge was critical of the administration of the test, but I do not accept those criticisms. Mrs Harris also performed significantly better on the MMSEs which she was administered, both in hospital and by Professor Watson and Ms Roberts, than would be expected of a patient with moderately severe dementia. The one qualification to this is the MMSE administered by Dr Beveridge, which was out of line with all of the other tests.

1. As adverted to earlier in these reasons, it is possible that Mrs Harris' symptoms when examined by Dr Beveridge in January 2005 were caused by vitamin B12 deficiency. That there was such a deficiency is established. It is not known whether it was corrected by diet after her discharge. It is clear that Mrs Harris improved markedly in her general health after she returned home.

1. By the time Mrs Harris was seen by Dr Beveridge she lacked motivation. She refused to get out of bed and to mobilise. As noted by Dr Beveridge in his report of 21 January 2005, Mrs Harris then persistently believed that she was residing in Bowral. This shows a marked deterioration from when she was admitted to hospital, when the MMSE that was then conducted showed that the only faulty aspect of her orientation was not knowing what floor of the hospital she was on. The social worker's notes of 9 and 17 December 2004 show that Mrs Harris competently appointed Mrs Gray as her contact person, and identified that her closest relatives were her nephews and nieces. On 23 December 2004, she was able to tell the social worker that she had left money to her niece at Coffs Harbour and give her the name of her solicitor, stating that she believed that her solicitor had her will. The social worker's notes also record a telephone number for the solicitor, but it is not possible to say whether she obtained that number from Mrs Harris or whether she obtained it herself, having been given the solicitor's name. The social worker's notes for 17 December 2004 record that Mrs Harris told her that her neighbour was attending to her mail, that she was not really concerned about her bills and that she said that her other property had a manager/agent to attend to it. She told the social worker then that she had a niece in the north and nephews out of Sydney. She said that she did not want them contacted and was thinking about how to go about things.

1. Professor Watson expressed the opinion that if Mrs Harris had at least moderate severity Alzheimer's type dementia through the period of December and January, she could not have been conducting her affairs in the way she had apparently been doing before her hospital admission and could not have had the type of conversations she had with the social workers, including Ms Kennon. I accept that evidence.

1. Professor Watson's opinion was challenged on the ground that Mr Gray was present during his and Ms Roberts' interviews with Mrs Harris, and that he provided initial prompting for a number of answers. This was one of the reasons for the Guardianship Tribunal preferring Dr Beveridge's evidence to Professor Watson's. However, Professor Watson took the extent of Mr Gray's prompting into account in forming his view as to her testamentary capacity.

1. Ms Roberts said that Mrs Harris' MMSE of 26 out of 28 and frontal assessment battery (17/18), her intact basic language functioning and her ability to recall recent events was not consistent with the diagnosis of either Alzheimer's dementia, nor frontotemporal dementia. She said that, although such simple cognitive testing did not rule out the possibility of some age-related cognitive decline, Mrs Harris' results suggested that if that existed, it was likely to be mild at best. Ms Roberts also observed that a deterioration in Mrs Harris' performance on the MMSE between the test administered on 29 December 2004, where she scored 25 out of 28, and the results of the test administered by Dr Beveridge on 4 January 2005, showed a deterioration over the course of a week which would be highly unusual, unless factors other than an underlying dementia were affecting her performance. I accept this evidence.

1. For these reasons I do not accept Dr Beveridge's diagnosis that Mrs Harris suffered from moderately severe dementia. Nonetheless, she did suffer from a degree of cognitive impairment, which may have been dementia of a milder form.

1. It is clear that Mrs Harris knew the effect both of the first will, which revoked prior wills, and of the later will. Counsel for Mrs Hart submitted that it should be concluded that she did not have the understanding of the effect of the first will because the result of it was that her property, if she died, would pass on an intestacy to nephews and nieces whom she said she did not want to inherit her estate. But Mrs Harris was aware of that. That is why she told Ms Johnson that she did not want to die before Ms Johnson returned on 31 March 2005 for the purpose of making a new will, after more thought about the question as to who should inherit her estate.

1. I conclude that Mrs Harris understood the general nature and extent of her estate. She knew she owned her house at Point Piper. She said she also owned the properties at Bowral and Burradoo. I do not think that the fact that she described those as her properties, whereas some land was owned by Girton Investments, is of any significance. She was the sole beneficial shareholder of Girton Investments. She did not own other shares and was aware of that. Counsel for Mrs Hart submitted that Mrs Harris' statement to the Guardianship Tribunal on 24 November 2005 that she had £60 in her London bank account showed that she did not appreciate, even in a general way, the extent of her assets. As noted earlier in these reasons, that statement is to be contrasted with what she told Professor Watson and Ms Roberts in March, where she initially said that she had $70,000 in the bank account. In fact, at the then exchange rates, there was approximately $85,000 at that time. Mrs Harris knew that the money was in sterling and the difference between $70,000 and $85,000 is not material.

1. In executing the will of 23 March 2005, Mrs Harris was able to identify and weigh the claims of the natural objects of her testamentary bounty. She had good reason to revoke the will leaving her estate to Mrs Hart for the reasons given. She appreciated that Mrs Hart had, as she put it, ransacked her house. She was right in thinking that Mrs Hart wanted her placed in a nursing home and she was entitled to be resentful of both of these things. She was not deluded. I accept that she had the belief that Mrs Hart had not acted in her interests. That was a view she could reasonably form. In fact, I think it is probably correct. Mrs Hart was acting to protect her inheritance.

1. Mrs Harris understood that the effect of revoking her will would be that if she died without making a new will, her estate would pass to her nephews and nieces. She knew who they were. She had named Mrs Hart and Mrs Nickolls. She had referred to the Mertells. She knew she had two nephews, even though Phillip Mertell lived in England and she had not seen or spoken to him for a decade. Although in her discussion with Professor Watson and Ms Roberts on 12 March 2005 and with Ms Johnson on 23 March 2005 Mrs Harris referred only to Warwick Mertell, in her discussions with the social worker at St. Vincent's Hospital, she referred to her nephews as well as her nieces. It was natural that she would mention Warwick Mertell as he had been around. I do not conclude from her then only mentioning Warwick Mertell by name that she was incapable of bringing Phillip Mertell to mind and evaluating his claim. The question is not whether she did bring the claims of each nephew and niece to mind in making her decision about her will, but whether she had the capacity to do so (King v Hudson [2009] NSWSC 1013 at [51]).

1. If Mrs Harris were deluded in thinking that her family were waiting for her to die, or that all of her nieces and nephews were after her money or had stolen her property (and I do not accept that she did have delusions, that is, irrational beliefs out of which she could not be persuaded), such delusions could not have influenced her decision to revoke the 1996 will so as to leave her property to her nephews and nieces if she did not make a new will before her death. She did not want her property to go to her nephews and nieces, but this did not affect the validity of the will of 23 March 2005, because she understood that she was making a will that she intended to be a stop-gap measure.

1. The question then is whether Mrs Harris was able to evaluate and discriminate between the objects of her testamentary bounty when she made her will of 4 April 2005. For the reasons given, Mrs Harris was well able to evaluate the claim of Mrs Hart on her testamentary bounty. She was also able to evaluate the claims of Mr and Mrs Gray. She was grateful for their assistance and attention, but nonetheless suspicious of their motives. She had expressed that suspicion to Mrs Nickolls. Such suspicions made her difficult to influence, and there is no evidence that any influence was sought to be exercised by the Grays. I conclude that she was able to weigh their claims as neighbours who had become friends and helped her.

1. Mrs Harris was also able to evaluate the claims on her bounty of Mrs Nickolls and the Messrs Mertell. She had distanced herself from them, or they from her, prior to her admission to hospital. She had had little or no contact with them for years prior to her admission to St. Vincent's Hospital in 2004, save for Mr Warwick Mertell having telephoned her every few months. Notwithstanding that contact, her relationship with Mr Warwick Mertell was distant in that he had not seen her since 1992, even though they both lived in Sydney. There was no exchange of cards or other contact at Christmas or on birthdays. When Mrs Harris was admitted to St Vincent's Hospital, she initially and consistently said she did not want her relatives to be contacted. She had not made provision for Mrs Nickolls or the Messrs Mertell in her previous will. Sometimes she had difficulty in naming her nieces and nephews and identifying which of her sisters was their mother. This did not affect her ability to know of their relationship to her, that is to say, that they were nieces and nephews, or to assess the nature of that relationship, that is, that they had had nothing or little to do with her.

1. In her discussions with Ms Johnson, Mrs Harris was able to describe her contact with Warwick Mertell and Mrs Nickolls after her return from hospital. She told Ms Johnson that Warwick Mertell, the son of her sister Melva, had come over and brought her flowers. She said in apparent reference to Mrs Nickolls that "I think its about 50-70 years since I have seen one of my nieces, it could be more. And what right does she have to come 'parading into my home'?" Although 50-70 years was an exaggeration, relations between them had been distant. Mrs Nickolls deposed that her most frequent contact with Mrs Harris was when Mrs Harris was in her 50s and was focused on events of the Sydney racing season. Mrs Nickolls introduced her husband to Mrs Harris in the early 1980s. Other contact was intermittent. Mrs Nickolls deposed:

"She didn't just 'sack' professionals such as solicitors or accountants if she took a set against them (which she did in the 1990s): she did the same with friends and family. She fell out with my mother many years before my mother's death and had no contact for years, even noting this 'animosity' in her 1996 will."

1. In her dealings with Mrs Nickolls after her return to her house, Mrs Harris appeared to think well of Mrs Nickolls and was grateful for her help, in particular for her help in getting her home from hospital. Nonetheless, Mrs Harris complained to Mr Mitchell in September 2005 that her relatives could "just waltz in here now as though they own my house" and that after she came home "all these people were coming into my house". This attitude was inconsistent with the attitude Mrs Harris showed to Mrs Nickolls herself. But that inconsistency does not betoken a loss of capacity. Mrs Nickolls deposed that it was Mrs Harris' personality that she could speak harshly about anyone in their absence and then be charming to them in their presence.

1. Mrs Harris made a number of statements about the Messrs Mertell and Mrs Nickolls that, if correctly related, were wrong. As noted at [75], Mrs Gray deposed to Mrs Harris telling her at the time of her admission to hospital that when her husband died, her nephews hid in the bushes in Wyuna Road and that she went down to the street and abused them and they ran off. In 1991, when this incident was said to have taken place, Mr Warwick Mertell was about 39 years old and his brother Phillip was living overseas. Neither hid in the bushes.

1. Ms Johnson deposed that Mrs Harris told her that Mr Warwick Mertell wanted her to go into a nursing home. He denied that that was his wish. He deposed that he and Mrs Nickolls always firmly supported Mrs Harris' wish to return to her own home and they were the ones who facilitated that (in contrast to Mrs Hart who wanted Mrs Harris to go into a nursing home). I accept Mr Mertell's evidence on this.

1. Mr Mitchell deposed that Mrs Harris told him that a few weeks after she returned home she came into her living room and found Anne Nickolls sitting there with her feet on the seat. Mrs Nickolls denies that and I accept her denial. Mrs Nickolls deposed that Mrs Harris always referred to her as Anne, and not as Anne Nickolls. At the time of the event in question, Mrs Harris had a carer whose first name was Anna and whom she dismissed because she put her feet on her chair. It is possible that Mr Mitchell misunderstood Mrs Harris and thought that she was referring to Anne Nickolls when she was referring to her carer, Anna. But it is also possible that Mrs Harris, by September, had formed the view that Mrs Nickolls was the person who had put her feet on the chair. Having seen Mrs Nickolls in the witness box, I think it unlikely that Mrs Harris would reach that conclusion about Mrs Nickolls. Nonetheless, it is possible that she did have that wrong belief.

1. In conversation with Mr Mitchell on 10 October 2005, Mrs Harris said "they all want their bit of money, Swindells, Hart and these guardians." On 14 October 2005, she said to Mr Mitchell "Coralie Hart, Swindells, Nickolls all came in and treated my house like their own. Came into my house. They stole every important piece of paper."

1. At the Guardianship Tribunal hearing on 24 November 2005, Mrs Harris said "they wanted me money". When asked by a member of the Tribunal who it was she meant, she named Mrs Hart, Mrs Nickolls, Mr Swindells and Mr Mertell. In context, Mrs Harris was not talking about whether the persons she named hoped to receive an inheritance after her death, but wanted to get the control and benefit of her money during her life. That was not true in the case of Mr Mertell and Mrs Nickolls. Counsel for Mrs Nickolls and the Messrs Mertell submitted that the driving factor that led to Mrs Harris making her will in favour of Mr and Mrs Gray was her anger arising from the conduct of Mrs Hart and Mr Swindells, which she then extended to her whole family without any basis for doing so in the case of the Messrs Mertell or Mrs Nickolls. In relation to them, so it was submitted, Mrs Harris was suffering from a paranoid ideation.

1. Mrs Harris did not express these views about Mr Mertell and Mrs Nickolls in her discussions with Ms Johnson and Mr Jones in March and April 2005. She said there were a "couple of nieces" who wanted her money, but that could have been a reference to Mrs Hart and her daughter, Amanda Swindells (i.e. a niece and a great-niece). She complained to Ms Johnson that Mrs Hart was trying to get her into a nursing home and had dragged her to the Guardianship Tribunal (2/276). She did not then make the same accusation against Mr Mertell.

1. It is a reasonable inference that between April 2005 and September to November 2005, Mrs Harris would have brooded over the wrongs she perceived had been done to her. This could explain why it was not until the weeks leading up to the Tribunal hearing on 24 November and at the hearing itself that she accused Mr Mertell of wanting to put her into a nursing home and made statements associating him and Mrs Nickolls with Mrs Hart and Mr Swindells in wanting to take her money and having stolen her documents. I do not conclude from the statements she made in October and November 2005 that she was motivated in making her will of 4 April 2005 by a belief that they had stolen her property, or were after her money.

1. Even if she were of those beliefs at the time she made her will and was influenced by them, I do not conclude that those beliefs were the result of a disorder of her mind. A will is not invalid merely because the will-maker misjudges the conduct or the merits of an object of his or her testamentary bounty. Even if Mrs Harris held those beliefs when she made her will, there is nothing to show that she was deluded in the sense that her beliefs were irrational, so that she could not be argued out of them, or, to put it another way, that no person in his or her senses could have held that belief. No one asked Mrs Harris why she thought that Mr Mertell or Mrs Nickolls were after her money or had stolen her property. The Tribunal members attempted unsuccessfully to persuade Mrs Harris that she was deluded in her suspicions of Mr Swindells by arguing that he, as her financial manager, was required to act in her interests. She was not persuaded by that and reasonably so. The Tribunal members assumed that because Mr Swindells was required to act in her interests, he was doing so. She did not accept that. Her non-acceptance did not connote any disorder of mind. No such explanation was attempted that was addressed specifically to the position of Mrs Nickolls and Mr Mertell.

1. Similarly, Ms Johnson did not challenge Mrs Harris as to why she believed that Mr Mertell had wanted to put her in a nursing home. It is not shown that that belief was incorrigible. As earlier indicated, Mrs Harris might reasonably have thought from the fact that Mr Mertell joined in the application in February 2005 to the Guardianship Tribunal, following which she was moved to Lulworth House, that he was of the same opinion as Mrs Hart in wanting to place her in a nursing home. Her belief in that respect was not irrational.

1. If Mrs Harris said that Mrs Nickolls had placed her feet on the chair, I do not think it likely that that would have influenced her will-making decision. In any event, it does not appear that that was a fixed and incorrigible false belief which she could not be reasoned out of. The same is true of Mrs Harris' statement to Mrs Gray when she was admitted to hospital concerning her nephews hiding in the bushes and being chased away.

1. In concluding that none of these beliefs is likely to have influenced Mrs Harris' will-making capacity, I have concluded that two matters were of fundamental importance to her. The driver for her decision to change her will was her anger towards Mrs Hart and Mr Swindells. She knew that Mrs Hart was the beneficiary of her will. Having decided to revoke her gift to Mrs Hart, the principal factor that governed her decision to leave her property to Mr and Mrs Gray and not to her nephews and nieces, or her nephews and other niece, was the absence of any substantial connection between her and her relatives prior to her admission to hospital.

Righteousness of the will

1. If a person writes or prepares a will for another under which he or she takes a benefit, that is a circumstance which will excite the suspicion of the Court. The Court will need to be satisfied that the will expresses the true will of the deceased, that is, that the deceased knew and approved of its contents. That will be particularly so if the gift is in favour of persons who had no special claim on the deceased's bounty (Fulton v Andrew (1875) LR 7 HL 448 at 461, 469, 471). It has been said that the onus is on such persons to show the "righteousness of the transaction" (Fulton v Andrew at 472; In re Nixon (dec'd) [1916] VLR 274 at 281). For the Court to be satisfied of the "righteousness of the transaction" does not mean that it can substitute its judgment for that of the testator as to what would be a proper disposition of the estate. What must be dispelled is any suspicion that the will-maker did not understand what the will provided for, that is, did not know and approve its contents (Fuller v Strum [2002] 2 All ER 87 at [33], [65], [78]; Nock v Austin (1918) 25 CLR 519 at 524, 525, 528; Vernon v Watson [2002] NSWSC 600 at [2]-[9]). In the present case, Mr and Mrs Gray were instrumental in procuring the services of a solicitor for Mrs Harris and arranging for her to be medically examined, but not in framing the will in their favour. As such, the "suspicious circumstances" doctrine does not come into play. In any event, it is clear that Mrs Harris knew and approved of the contents of each will.

Conclusion and orders

1. For these reasons, I conclude that Mrs Harris had the capacity to make both her will of 23 March 2005 and her will of 4 April 2005. I make the following orders:

1. Letters of administration with the will dated 4 April 2005 of the late Betty May Harris annexed, in solemn form, be granted to the plaintiff.

2. The proceedings be referred to the Registrar to complete the grant.

3. The other claims of relief in the amended statement of claim, save as to costs, be dismissed.

4. The cross-claim and the second cross-claim be dismissed.

1. I will hear the parties on costs.

Decision last updated: 27 November 2012