Grynberg v Muller - [2001] NSWSC 532

No judgment structure available for this case.

CITATION: Grynberg v Muller; Estate Late M Bilfeld [2001] NSWSC 532

CURRENT JURISDICTION: Probate

FILE NUMBER(S): SC 119213/94

HEARING DATE(S): 18-23 & 26-28 February, 1 & 2 March 2001

JUDGMENT DATE:
27 June 2001

PARTIES :

Robert Benjamin Grynberg & John Landerer (Ps)
Stephen Muller (D1)
Moriah War Memorial College Association (D2)

JUDGMENT OF: Hamilton J

COUNSEL : Dr C J Birch SC (Ps)
No appearance (D1)
A J Meagher SC and I M Jackman (D2)

SOLICITORS: Milne Berry & Berger (Ps)
No representation (D1)
Freehills (D2)

CATCHWORDS: SUCCESSION [5] & [8] - Wills, probate and administration - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Forms of unsoundness of mind - Alzheimer’s disease - Paranoid delusion - Onus of proof - In general.

LEGISLATION CITED: Evidence Act 1995 s 80
Protected Estates Act 1983

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Nock v Austin (1918) 25 CLR 519
Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244
Re Estate Griffith (deceased) Easter v Griffith NSWCA 7 June 1995 unreported
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Read v Carmody NSWCA 23 July 1998 unreported
Shaw v Crichton NSWCA 23 August 1995 unreported
Winter v Crichton (1991) 23 NSWLR 116

DECISION: The testator was not established to have capacity to make her 1986 wills or her 1987 will but did have capacity to make her 1985 will.

IN THE SUPREME COURT
OF NEW SOUTH WALES
PROBATE DIVISION

HAMILTON J

WEDNESDAY, 27 JUNE 2001

119213/94 ROBERT BENJAMIN GRYNBERG & ANOR v STEPHEN MULLER & ANOR

ESTATE OF THE LATE MALKE BILFELD

JUDGMENT

HIS HONOUR:

1 Contents

Subject Par No

The testator
2 - 6

The wills 8 - 9

The parties’ cases 10 - 14

The law: The criterion of testamentary capacity 15 - 18

The law: Onus of proof 19 - 20

The law: Undue influence 21

The testator’s medical history 22 - 28

The making of the 1987 will 29 - 36

The lay witnesses 37 - 41

The medical witnesses 42 - 46

Conclusions as to the 1987 will 47 - 66

Conclusions as to the 1986 wills 67 - 68

Conclusions as to the 1985 will 69

THE TESTATOR

2 This suit concerns a number of wills and codicils of Malke Bilfeld (“the testator”) and whether or not she had testamentary capacity at the time she made them. The instruments concerned are wills made on 14 February 1984 (“the 1984 will”), 11 December 1985 (“the 1985 will”), 30 June, 3 and 11 July, 14 August and 15 September 1986 (together “the 1986 wills”), a will and codicil both made on 22 July 1987 (together “the 1987 will”) and a will made on 9 December 1988 (“the 1988 will”). The plaintiffs, Robert Grynberg and John Landerer, who are the executors thereof, propound the 1987 will. The second defendant, Moriah War Memorial College Association (“the defendant” or “Moriah College”), asks that there be admitted to probate the 1985 will or alternatively the 1984 will, under both of which it is the residuary beneficiary. The plaintiffs do not seriously challenge that the testator had capacity to make the 1984 and 1985 wills. The defendant challenges the validity of all wills made after 1985; although the plaintiffs do not propound the 1986 wills, if they were validly made, they revoked the 1985 will, so they must be ruled invalid for the 1985 will to be admitted to probate as the defendant asks.

3 The testator was born in Poland on 1 October 1907. Her maternal grandparents, Shmerl and Basia Popovtzer, were prosperous people engaged in business first in Podkamien, then in Lvov. They had three relevant children, a son, Aron, a daughter, Malke (the testator) and another daughter. Aron had a son, Mordecai Popovtzer, who was born on 24 October 1935, and one surviving daughter, Felia Heiman. The other daughter also had a daughter, Rozia Matzner, who is living. These three cousins, Mordecai Popovtzer, Felia Heiman and Rozia Matzner, were at all material times the testator's closest blood relatives. The testator married Abraham Bilfeld and went to live in Lodz. After the outbreak of World War II, the testator and her husband left Lodz, which fell into German hands, and went to live with the Popovtzers in Lvov, which was occupied by the Soviet Union. After war broke out between Germany and the Soviet Union in 1941 the families fled from Poland to Czechoslovakia and finally to Hungary, where the members relevant to these proceedings survived the war. At some time the testator and her husband were taken and sent to a concentration camp, but they escaped. The testator said that she sold her gold rings to save them. Another family which participated with them in their wartime escape and survival was the Mullers. The testator and her husband regarded the Mullers as having saved their lives during their wartime flight.

4 After the war the testator and her husband migrated to Australia where they were again successful in business. They had no children (perhaps because testator suffered an early miscarriage). The testator was clearly devoted to her husband, who unfortunately died in 1964. She continued to prosper, being herself, it appears, a shrewd investor. At the time the various wills in question were made she owned two blocks each of 12 home units in Elizabeth Bay, three shops in Edgecliff and five home units in Brighton le Sands. She had jewellery valued at about $150,000, other personal possessions and some $300,000 in cash. Her estate was valued at $6 or $7 million. I am not informed for the purposes of this suit of the present value of the estate, but the parties are agreed that it has not been distributed and that it is worth considerably more than it was at the time of her death.

5 Two Polish families with whom the testator and her husband became and remained closely friendly after settling in Australia are the Grynbergs and the Landerers. It is sons of each of those families who are executors of the 1987 will and plaintiffs in this suit. John Landerer in addition became her solicitor and remained her principal solicitor to the end of her days, despite fears and suspicions of him that she developed, as will appear. The Mullers also came to Australia and remained close friends. A son of that family, Stefan Muller, became her general practitioner and principal medical adviser, but she formed an antipathy to him which will also have to be adverted to. There seems little doubt that she took a close interest in and had a great affection for the children of her close friends, increased, it seems likely, by her own childlessness. As well as being financially capable, the evidence shows that the testator was a lively person. This is attested to by evidence of her friends and acquaintance. There is particular interest in this regard in the evidence of Mr Confos, who played the part of builder and general repairman in respect of her properties in her later years. She was always very talkative. As is not surprising in someone who obviously committed herself to making a success of her new life when translated across the world, she was fluent in English and spoke in that language not only to those who could not speak Polish, but to many of her Polish friends, for instance, Mrs Grynberg. She spoke in Polish only to people who were not proficient or comfortable in English.

6 The testator’s psychiatric history will have to be traversed in some detail in due course. Here it may be said that there is no doubt that she suffered the onset of a dementing illness in about 1983 and evinced progressively greater symptoms of that disease as time went by. She also evinced paranoid manifestations. In March 1987 she undoubtedly suffered a florid outbreak, which led to her hospitalisation first in St Vincent’s, then in Hughlings Private Hospital, and then to her release home under full time care.

7 The Popovtzers did not migrate to Australia. Mordecai Popovtzer studied medicine and pursued a distinguished career in the USA and subsequently Israel, where he lives in Jerusalem and holds a chair in medicine at the Hebrew University. Despite the distance the testator maintained contact with Professor Popovtzer over the years. She visited him overseas on a number of occasions. He first came to Australia with his wife in 1985 to visit her. They came again at her request in 1987 and were present when she gave instructions for the 1987 will, in circumstances which it will be necessary to examine in detail in this judgment. They visited her again in August 1988, March and December 1990 and August 1991. In October 1991 they came and took her to Israel with the permission of the Guardianship Board. They cared for her until she died in Jerusalem on 18 December 1993.

THE WILLS

8 The 1984 will was prepared on the testator’s instructions by Mr David Freeman of Abadee, Dresdner & Freeman, solicitors. He has no independent recollection of events but his notes and file are available. These contain draft wills or notes of proposed dispositions different from those actually incorporated in the will. He has no recollection of these, but from their presence in his file there can be little doubt that they were dispositions which the testator considered at the time. All subsequent wills, up to and including the 1987 will, were prepared by Mr Victor Berger of Milne, Berry & Berger. The testator was sent to Mr Berger by John Landerer, who declined to prepare the will because he was a beneficiary. Mr Berger had not previously acted for the testator. He first met her on 11 December 1985, shortly before he prepared the 1985 will. He did not act for her in any other matter except the preparation of the 1986 wills and the 1987 will. The 1988 will was prepared by Patrick Grimes & Associates, solicitors.

9 The dispositions of the wills are summarised in a table, which is set out in a schedule to this judgment. The schedule includes as well the dispositions of a codicil prepared by Mr Berger in June 1987 on the testator’s instructions, but never executed. All the wills under consideration proceeded by way of a series of pecuniary bequests followed by a residuary gift. All of them up to and including the unexecuted codicil of June 1987, but not including the 1987 will, gave the residue to Moriah College. In the 1987 will Moriah College was given a bequest of $1 million and the residuary gift was to Professor Popovtzer. The executors of the 1984 will were Henry Stricker, John Landerer and David Freeman and of the 1985 will John Landerer, Henry Stricker and Stephen Muller. In the will of 30 June 1986 the appointment of Stephen Muller as an executor was deleted, as well as his legacy. The will of 11 July 1986 maintained John Landerer and Henry Stricker as executors but added Professor Popovtzer and inserted a curious provision that if they were not in unanimous agreement they “may” refer matters to Robert Simons for resolution. The only change in the will of 14 August 1986 was in effect the substitution of “shall” for “may” in the difference resolution provision. In the will of 15 September 1986 Professor Popovtzer was removed as an executor.

THE PARTIES’ CASES

10 The defendant’s case is that no will after the 1985 will was made with testamentary capacity and that the 1985 will ought be admitted to probate. There is an alternative case that the 1984 will ought be admitted to probate if the 1985 will fails, but there was no serious argument that the 1985 will was made without capacity. Argument centred on the 1987 will, which changed the residuary legatee from the defendant to Professor Popovtzer, but the defendant presses me to reject the 1986 wills as well. The plaintiffs say nothing to this; on their case, those wills are valid, but they do not assist Professor Popovtzer; the defendant is the residuary beneficiary. Both sides agree that the 1988 will was made without capacity and no one propounds that will.

11 The defendant’s case as to the 1987 will is that the testator had a dementing disease of the Alzheimer's or frontal lobe type which was progressive and irreversible and that that had by July 1987 so damaged her cognitive abilities that, although her condition had improved somewhat from March to July, she was incapable of recovering sufficiently to have testamentary capacity. Alternatively, it puts it that she was suffering from a delusion relating to an object of her bounty, Dr Muller, such as to deprive her of testamentary capacity. Furthermore, the defendant says that it is not demonstrated that she knew the contents of the will and codicil when she executed them. The defendant supports its case with the psychiatric evidence of Dr Stanley, Professor Broe and Dr Phillips. Dr Stanley treated the testator in Hughlings hospital. He did not see her after that. He no longer has his notes but has examined the hospital notes and does recall the testator. Professor Broe and Dr Phillips did not see the testator and have been qualified as expert witnesses. It is common ground that that is a disadvantage in a case such as the present, but they did have the advantage of a minute perusal of all relevant written material in coming to their opinions. In particular, they had access to Mr Berger's notes of his interviews with the testator in June and July 1987 in which instructions for the 1987 will were given and to the nursing notes of the testator at home during mid and late 1987, which Professor Buhrich lacked when he interviewed her in July 1987 (see [34] below). The defendant relies not only on the psychiatric evidence but on an examination of the notes of her interviews with Mr Berger and, indeed, on the whole body of evidence relating to the testator’s behaviour at the time and over the years.

12 The defendant says that if I find the testator to have had testamentary capacity to make the 1987 will, then I should refuse to admit that will to probate on the ground that it was made under the undue influence of Professor Popovtzer. It says that his conduct, particularly during the interview with Mr Berger, her solicitor, on 20 July 1987, put such pressure on the testator that her will was overborne and she gave the residuary gift to him rather than to the defendant as she wished.

13 The plaintiffs concede that the testator had a dementing illness of the relevant kind. They suggest, however, that the florid symptoms of March 1987 were the result of a delirium, perhaps caused by a urinary tract infection, which was diagnosed and which had abated by July. Certainly, they say, the testator's condition, as attested to by the lay evidence and by Mr Berger's notes, was such that she possessed testamentary capacity in. They rely on Mr Berger's opinion that she possessed capacity on the days that he saw her in June and July and that of Professor Buhrich, who had treated her in St Vincent’s Hospital and who had been called in to assess her on the day she made the 1987 will. They also qualified expert witnesses, namely, Professor Ehrlich and Dr Rosenfeld. Dr Rosenfeld (who works under Professor Broe) generally agrees with the latter's analysis but, on the evidence available, departs from him on his view that she did not have capacity on the day. The plaintiffs point to the notes of the interviews with Mr Berger as showing a rational process during which the testator could and did apply her mind to the considerations appropriate to the will making process and thereby demonstrated that she had testamentary capacity when the 1987 will was made. As to the argument that it is not demonstrated that she knew the contents of the will and codicil when she executed them, it is said that she had capacity when she gave the solicitor instructions, and signed the documents believing that they were prepared in accordance with her instructions; reading the will to her was unnecessary.

14 As to undue influence, they say that, although the evidence may show that the Popovtzers sought to persuade the testator to increase her provision for them, the defendant does not clear the high bar set for the establishment of testamentary undue influence, namely, the actual overbearing of the testator's will.

THE LAW: THE CRITERION OF TESTAMENTARY CAPACITY

15 The gateway to the modern law relating to testamentary capacity is in Banks v Goodfellow (1870) LR 5 QB 549. The judicial pronouncement was not in a summing up to a jury, as in a number of early testamentary capacity cases, but in the decision of a full Court of the Court of Queen's Bench on an application to set aside a jury verdict. The judgment of the Court was delivered by Sir Alexander Cockburn CJ and was concurred in by Blackburn, Mellor and Hannen JJ. The jury verdict in favour of testamentary capacity had been taken in the course of establishing title in an ejectment action. It was upheld by the Court. The case particularly concerned the question of delusion. The testator in that case had serious delusions on some subjects, but not connected with the subject matter of the will. The case established that testamentary capacity could still be found in appropriate cases despite such delusion. A number of passages from the judgment germane to the questions in this case are set out as follows:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

“If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.

“In the subsequent case of Stevens v Vancleve 4 Washington at p 267 it is said: ‘The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?’

This view of the law is fully adopted by the Court in the case of Sloan v Maxwell 2 HW Green (NJ Chan R) 563, and is there stated to have been approved by Chancellor Vroom in a case as to the will of Tace Wallace, which, however, is not reported. It appears to have had the sanction of Chancellor Kent, in the case of Van Alst v Hunter 5 Johnson NY Ch Rep at p159, already referred to.

In a case of Harwood v Baker 3 Moo PC 282, before the Judicial Committee of the Privy Council, in which case a will had been executed by a testator on his deathbed, in favour of a second wife, to the exclusion of the other members of his family, he being in a state of weakened and impaired capacity from disease producing torpor of the brain, and rendering his mind incapable of exertion unless roused, Erskine J, delivered the judgment of the Court in these terms: (1) ‘Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed his will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity.’

16 Banks v Goodfellow has been approved and followed in many subsequent cases, including in Australia Bailey v Bailey (1924) 34 CLR 558; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Re Estate Griffith (deceased) Easter v Griffith NSWCA 7 June 1995 unreported; Read v Carmody NSWCA 23 July 1998 unreported; Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244.

17 In Easter v Griffith supra Gleeson CJ (when Chief Justice of this Court) extrapolated the concept of delusion as follows:

“Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.

In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts (such as a husband's belief that his wife is unfaithful). Delusion may also consist in, or involve, a value judgment where ‘the judgment is so extreme as to defy credibility’. (See the definition in the Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed, Revised (DSM-III-R), 1987, issued by the American Psychiatric Association and cited by M Spitzer, ‘On Defining Delusions’ (1990) Comprehensive Psychiatry, Vol 31, No 5 at 395). In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion.

18 Powell JA restated the general test in Read v Carmody supra as follows:

“It is clear from the first of the passages in Brownie J's Judgment which I have set out above that his Honour was aware of the various matters which he was required to consider in determining whether or not at the relevant time the deceased had testamentary capacity. Those matters have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that ‘testamentary capacity’ encompasses the following concepts:

1 that the testator - or testatrix - is aware, and appreciates the significance, of the act in the law which he - or she - is about to embark upon;

2 that the testator - or testatrix - is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power;

3 that the testator - or testatrix - is aware of those or may reasonably be thought to have a claim upon his - or her - testamentary bounty, and the basis for, and nature of, the claims of such persons;

4 that the testator - or testatrix - has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.

THE LAW: ONUS OF PROOF

19 The onus of proof of testamentary capacity was stated as follows by Gleeson CJ in Easter v Griffith supra:

“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted ( Worth v Clasohm (1952) 86 CLR 439).

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult.

Boughton v Knight (

20 Despite strictures such as this concerning the integrity of the right to dispose of one's assets by will and some statements in cases that suggest some special standard in capacity cases (see, eg, per Isaacs J in Nock v Austin (1918) 25 CLR 519 at 528, “proving affirmatively by clear and satisfactory proof”), the correct test is that the proponent of a will must establish capacity on the civil onus of proof; the relevant onus has recently been stated in the Court of Appeal simply as “the balance of probabilities” in Shaw v Crichton NSWCA 23 August 1995 unreported. Neither side in this case asserts otherwise.

THE LAW: UNDUE INFLUENCE

21 Equally, there is no controversy between the parties as to the legal criterion for the setting aside of a will for undue influence. The law is as stated by Powell J (as his Honour then was) in Winter v Crichton (1991) 23 NSWLR 116 at 121 - 122:

“2. while, in relation to gifts, or other like transactions, made inter vivos, undue influence will be held to have been established in a case in which — whether because a relevant presumption has not been rebutted, or because of direct evidence to that effect — it has held that the donee has, by the unconscionable use of a position of influence over the donor, obtained an advantage for himself, the influence which must be shown to avoid a will must amount to force or coercion destroying free agency.

Wingrove v Wingrove

‘To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, “this is not my wish, but I must do it”.

see also, to the like effect Boyse v Rossborough (at 49; 1211); Parfitt v Lawless (at 469-471); Baudains v Richardson [1906] AC 169 at 184-185 per Lord Macnaghten and Craig v Lamoureux (at 357).

Wingrove v Wingrove

‘There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

Boyse v Rossborough

‘… The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence; that the instrument, though apparently the expression of his genuine will, might in truth have been executed only in compliance with the threats or commands of his wife, or that he had been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty.

THE TESTATOR’S MEDICAL HISTORY

22 The first serious indication of a neurological problem in the testator was early in 1983 when she saw Dr Gonski, neurosurgeon, complaining of forgetfulness. He described her as “a sprightly lady who is virtually a non stop talker”. He arranged a CT scan and found that this showed a degree of cerebral atrophy. He did not recommend any form of treatment. Later that year she wound up in hospital in Zurich. She claimed that she had been attacked by “villains” at the airport, who tried to rob her, drugged her, threw her on a truck and took her to hospital. She certainly wound up in a hospital, from which her release was negotiated by Dr Muller, who flew from Australia. He allowed her to continue unattended on a journey to visit the Popovtzers in Tucson, Arizona, where they noticed her forgetfulness. Late in 1985 Mr Confos noticed changes in her behaviour. She would no longer post letters in boxes but take them to the post office; she would not bank in a branch of the Bank but go to head office; she would not sign cheques for a time and then sign cheques only in front of the bank manager. By that time, he says, she knew she was suffering from Alzheimer’s disease.

23 Some time in 1986, probably early in the year, the testator had a bladder operation performed by a Dr Hakem. This was in an attempt to cure a problem of incontinence. The operation had been discussed with her by Dr Muller, who referred her to Dr Hakem as the surgeon. There seems no doubt that the sequelae of the operation were painful. She complained bitterly that it was not a success. The evidence does not extend to showing what the problem was, although it may be that it did not cure the incontinence, despite the pain and inconvenience of it. After the operation she bitterly blamed Dr Muller for it claiming in colourful language that he had “killed” or tried to “kill” her. This attitude towards him seems to have persisted until 1988, when he was restored to her bounty in the 1988 will.

24 In about September or October 1986 there was an incident involving Victor Grynberg. He is the brother of Robert Grynberg, one of the plaintiffs. He knew the testator from childhood through her close friendship with his parents. He was also in 1986 a director of Moriah College’s Building Fund Appeal, although he is no longer a director of Moriah College, since all his children have finished school there. In about October or September 1986 he noticed signs of unusual behaviour in Mrs Bilfeld including repetition of the same material in conversation and speaking to him in Polish, which he did not speak, and continuing to do so despite his lack of response. At about that time at a fund raising dinner she handed him some thousands of dollars in cash. The next day she telephoned him in a panic saying that all her money was missing and she did not know where it was. That day he went and returned to her the cash and spent some hours with her, during which she was distressed and he felt he could not leave. A deal of what she said did not make sense. Thereafter she seemed “more and more scatty and irrational about what she said”. She spoke about gas and electricity bills and people trying to steal her money from her.

25 In February 1987 she called her money on deposit with Partnership Pacific Limited, some $240,000, then attended at their offices and refused to accept the cheques they proffered her, talking about matters unconnected with that company. On 13 March 1987 she was admitted to St Vincent’s Hospital as a result of a certificate under Schedule II of the Mental Health Act 1958. The certificate of a Dr Sippe stated as the basis of his opinion:

“When I called on Mrs Bilfeld with Mr Ross she spoke immediately in a loud angry voice claiming we were concealing our true identity; she went on in a way that was not understandable, that this building was a bad one, the one next door a good one. She claimed 150 people were stealing her gas. Mr Paul Velikans of Laing Simmonds [sic] has been concerned for Mrs Bilfeld’s wellbeing for over 12/12, eg, she receives thousands of dollars in rent money and is at risk walking between our office and her home. She appears unable to understand basic [illegible] matters. She fell asleep in our office, rolled on to a glass table and broke it.

26 She was admitted to St Vincent’s Hospital and attended by Professor Buhrich, who gave evidence before me. He remembers the occasion vividly because he had never before encountered a person admitted to a psychiatric ward carrying thousands of dollars in cash - he saw the nurses counting the money. His discharge summary records that Dr Muller said that she had been paranoid for years and there had been episodes of confusion for at least two or three years. During her hospitalisation in St Vincent’s Hospital she had a urinary tract infection which was treated by antibiotic drugs from early April to early May. It is not clear whether she was already suffering from that infection when admitted to hospital in mid March. On 18 March 1987 she was discharged to Hughlings Private Hospital where she remained until 11 May. There she was attended by Dr Stanley, who has unfortunately but not surprisingly disposed of his notes. She was then discharged to her home and thereafter lived there with 24 hour a day nursing care. Those nurses kept notes which have been tendered in evidence. Professor Buhrich and Dr Stanley were both of opinion that she did not during the time of her hospitalisation have testamentary capacity and there is really no dispute as to the correctness of this view. During her admission to Hughlings Private Hospital the Protective Commissioner was appointed pursuant to the Protected Estates Act 1983 to manage her affairs and has since continued to do so. At the hearing at Hughlings Private Hospital Mr Landerer made some attempt to avert the making of an order, but did not succeed in doing so. Professor Buhrich , although of the view that she had testamentary capacity in late July did not think she was at that time capable of managing her affairs.

27 A summary of the history to this point is provided in Professor Broe’s report. Although there is conflict in the opinons as to her testamentary capacity in July 1987, there is probably nothing controversial in this summary:

“To summarise the clinical picture and clinical diagnosis up until her discharge from Hughlings Private Hospital on the 11th of May 1987:

Malke Bilfeld developed her first clinical symptoms in the late 1970s or early 1980s at around 70 to 72 years of age. These symptoms consisted of the development of paranoid delusions, particularly in relation to her housekeepers [sic] stealing money, in the late 1970s or early 1980s followed by mild memory impairment requiring medical assessment in early 1983 and diagnosed as ‘cerebral atrophy’. Paranoid ideation over a number of years is uncommon as the initial symptom of Alzheimer's disease (fleeting or non sustained paranoid delusions however occur in approximately 30% of people with Alzheimer's disease during that illness). Between 1983 and 1985 Mrs Bilfeld also had one recorded episode of severe behavioural disturbance with marked paranoia which followed air travel and occurred at Zurich Airport resulting in hospitalisation in a psychiatric hospital in Zurich for one week. It was following this episode in August 1983 that Mordecai Popovtzer noted Malke Bilfeld's forgetfulness for the first time having not seen her since 1981 at his son's barmitzvah.

28 After the making of the 1987 will the testator’s condition, inevitably in light of the undoubted diagnosis of dementia of the Alzheimer’s or frontal lobe type, deteriorated. She subsequently made the 1988 will. I do not need to traverse in this judgment details of her condition late in 1987 and during 1988. All medical opinion is that the testator had lost testamentary capacity by the time of the making of the 1988 will and all are agreed that capacity was lost by the end of 1987, or early 1988 at the latest. The 1988 will was originally, but is not now propounded. Dr Muller, who was a beneficiary under the 1988 will, was a party to these proceedings when it was propounded, but ceased to play any part in them after that claim was withdrawn.

THE MAKING OF THE 1987 WILL

29 In June 1987 the testator arranged through the Protective Commissioner for a visit to Australia by the Popovtzers. It was during this visit that the 1987 will was made. As I have already said, it was prepared by Mr Berger, who had prepared the 1985 will and the 1986 wills. I shall in due course say something shortly about my impressions of Mr Berger as a witness. He has little independent recollection of the events but he took notes at the time. Because of his lack of recollection those notes are of the utmost importance. They are somewhat tantalising, because they provide only brief notes of interviews which lasted some time, up to one and a half hours. They are often quite elliptical in their expression. No doubt it was not thought at the time that they would be a principal item of evidence in a probate suit tried almost 14 years later.

30 The first interview at which instructions were given for a change of testamentary dispositions in 1987 was on 24 June 1987. Present at the testator’s request were Mrs Grynberg and Victor Grynberg, who drove the ladies there at his mother’s request. Because of the importance of Mr Berger’s notes as the only contemporaneous record of events of which memories have faded, they will be set out in full. Mr Berger’s notes of that conference are misdated 1986 rather than 1987, but undoubtedly record the conference of June 1987. They are as follows:

“1.

12.05 - 1.00

MRS BILFELD (DORIS G & VICTOR G)

WILL

24.6.86

(Needed some help from Doris in Czech) re will.
Says was not well - now almost 100%.

I Wants Steve Muller in will as E/T in place of STRICKER

- haven't ever seen Stricker privately know of him from BNAI BRITH.

- when asked him to do something + not do anything.

- Put in originally because was a good character. She asked him + he agreed.

Stricker not take her out or buy anything for her. Only nice to her when gave money to BNAI BRITH.

At first John Landerer wanted to be E/T alone + refused Stricker but I knew Stricker as honest man.

Family coming in 10 days. (Professor in Jerusalem).

II Muller to receive $~~100~~50,000 as since my illness he has helped me greatly

‘almost saved me’.

- afraid of him because he told her he do nothing for her + he no help to her at all + said that he could break her will + no one will get anything. (~~He said he would go all over the world~~).

He has she believes a copy of the will.

John has.

2

I say don't alter amt for Landerer.

Asks what if tear it up will what happens. I say if revoke then has no will.

- I say if change will too much may be suggested her illness has caused it.

We discuss how ill has she been (Mrs G speaks to her in Polish/Czech it seems to explain what I've said - seemed readily to understand what Mrs G said VAG repeats in English).

III. - Leave Landerer.

IV. Remove $50,000 from Stricker + give to Popovtzer.

V. Alternate E/T ROBERT BENJAMIN GRYNBERG.

Codicil to be executed in front of Dr Stanley who has and does treat her.

VI. Call Landerer and see if has copy of last will and give details of changes

All once X codicil.”

31 Thereafter the Popovtzers arrived in Australia and, when the testator went again to see Mr Berger on 20 July 1987, they accompanied her to the interview. Mr Berger protested at their presence but the testator insisted that they remain. The interview on that morning lasted some one and a half hours and Mr Berger’s notes are as follows:

“MRS BILFELD	re: WILL	20.7.87
3.05- 4.30
NOTE: Have spent call on prior visits = 1 HR (3-4 occasions) ‘

She produces copy of copy of most recent will

I point out I not happy that discuss will and bequests in presence of Dr and Mrs P - she says OK.

* she wants Dr P to have three times Landerer ie, $450,000.

She tells Dr to ask any questions -he asks I to tell her who most money goes to.

I say I not know value of her estate but say $950,000 to persons balance to Moriah

Dr says estate = $3,000.000 - $4,000,000.

She asks how know value

- I say after death valued

-or now have valued.

Wants valued - BRIAN HARRIS has details.

2.

HARRIS

3 ONSLOW AVENUE, DARLING POINT ((2 x 12 flats) - penthouse in one)’

Not valued but says expects couple of million dollars - just insured at over $2,000,000

- could be 6-7,000,000 - has checked titles.

He says she wants to give Dr and Mrs P $500,000 to buy property in Israel.

- can't give money expect dependent.

- or advance against bequest but depends on amount of bequest

- loan (interest free)

She could sell property for above. He prepared to do what she wants. He satisfied she

knows what she wants to do.

Believed rents down.

MULLER

Stanley not want to give certificate. But Stanley says to go to St Vincent's.

Hasn't spoken to Gertler.

3.

Dr says that if estate $6m then Moriah receives = five times of total to all others = 12 times Dr.

They seem to press her that Moriah gets all. She says I didn't know that.

BUT she returns to speak of John v Dr.

- they press her re Moriah.

- she sticks to John v Dr + says $150,000 v $350,000 is what she wanted to do and says John worth half Dr.

I explain that Moriah gets most. Is that what you want.

- she says yes -I wanted sign for my husband

Mrs P asks would it cost $6mto [sic] build. I say must spend the money.

She wants to give the money for the sign - not the children.

She says she sends Moriah money now for sign. No that it was is in will. I ask again

is Moriah to receive only the money now sent. No they should receive from the will.

4.

Now says:- Bequest = $600,000 - all but Pop (leave Steve OUT).

= $1 million - to Moriah

Balance to Dr Popovtzer.

I explain that may be problem re testamentary capacity - I report what Muller said.

- I say as expert as possible.

Dr Popovtzer says he will find a Sydney doctor

- I prefer 2.

She asks me he to try to get Dr who says she is well and she gets money back. Asks he stay till found one.

'See what I've done for you'.”

32 On 21 July 1987 Mr Berger dictated the will and codicil. It had been decided that the way to proceed was to use the September 1986 will, but to remake it, since the original could not be found, and make the desired alterations by codicil. At first Mr Berger’s evidence was that he had dictated only the codicil, but faced with a contemporaneous note he agreed he had also prepared a fresh copy of the will. But in relation to it “dictation” meant only the dictation of a few small alterations. The codicil was obviously dictated de novo. One interesting feature is that the codicil includes a legacy of $50,000 for Dr Muller, although the last instruction concerning Dr Muller recorded in the notes of the 20 July interview was to leave him out. Nowhere is there written record of an instruction to include him, nor can Mr Berger recall one. The defendant asks me to find there was no such instruction, so that the codicil dictated on 21 July does not accord with the instructions given on the 20th. Mr Berger says that such an instruction must have been given on the 20th, or he would not have included it in the codicil dictated on the 21st. I find on the probabilities that the latter was the case. But the omission of this important instruction emphasises the incompleteness of the record constituted by the notes. It also emphasises the changeability of mind displayed by the testator in the interviews.

33 The testator again attended on Mr Berger with the Popovtzers on 22 July 1987, for a comparatively short time, probably in the middle of the day. The testator was given the will and the codicil. They all attended again in the afternoon when the will and the codicil were executed. Mr Berger’s notes of the earlier interview are as follows:

MRS B 22.7.87

She has difficulty with 'how many zeros' for Johnny - I tried to explain what $150,000 was vis a vis zeros.

Wants to give Steve Muller $1,000. I explain she said $50,000 before. She then asks about zeros for Steve. She says $100,000 but measured the value of sum by number of zeros - said 'is three zeros enough'.

She wants to give him something but not much. But wanted to decide a day or two. I say Dr coming today let's put Steve in now and if change then can do that later.

2.

She had difficulty to understand who was the doctor.

She then asked about Michael Conn - I say $50,000. She then asked me is that enough.

She then asked about the children and sign - I explain $1,000,000 for children.

For Stephen $50,000

She asked that that no amend bequest of $350,000 to Dr P. She wants him to have residue in addition

She again asks about $1,000,000 - new building and sign. She speak of husbands grave and granite used. I don't know why she spoke of this.”

34 Although Mr Berger believed (as I do not doubt) that the testator had the requisite capacity, he had enough doubts about the issue to ask that the opinion of two psychiatrists be obtained. In the event, the attendance was procured of one psychiatrist, namely, Professor Buhrich, who had earlier treated the testator at St Vincent’s Hospital. During the afternoon the testator returned to Mr Berger’s office with the Popovtzers and Professor Buhrich arrived shortly after. The professor interviewed the testator for about 20 minutes in a room with only the two present. They then emerged from the room and Professor Buhrich indicated to Mr Berger that he believed the testator had testamentary capacity and hand wrote a certification of her capacity. Two days later in a report he set out the circumstances of the interview as follows:

The patient’s general orientation

She recognised me as ‘doctor’ and knew I had come to assess her psychological ‘strength’. She remembered having been in hospital earlier in the year but could not remember my name, the name of the hospital or for how long she had been admitted. (In fact she had been admitted to St. Vincent’s Hospital from 13.3.87 to 18.3.87 where a diagnosis of senile dementia Alzheimer’s type with features of excitement and paranoia, was made.

She gave her date of birth as the 1st October but was too coy to give me the year of birth. After some time but without prompting she was able to give the present month, approximately the time of day as 4 p.m. (actually 5 p.m.), and gave the date as ’26 or 27’ (actually 22). Initially she was unable to give her address but ten minutes later it suddenly came to her and then she gave it correctly.

Patient’s assessment of her property.

She tells me she lives in and owns a ‘beautiful penthouse’ and gave the correct address.

She says she also owns -

a. 12 units in Onslow Ave, Elizabeth Bay.

b. 5 units at Brighton le Sands for which she receives rent of ‘at least $50 per week’ and the value of which she assesses at ‘more than a few hundred thousand’ dollars.

c. Another 3 flats ‘in the city’, the address of which had escaped her.

She said she owned no other property and that the total value of all properties was in the order of 5 to 7 million dollars.

Patient’s assessment of beneficiaries and amount left to them.

She says she has no children.

She states that the bulk of her estate will be going to her brother’s child Dr. Mordecai Popovtzer, who is now her closest relative. She could not remember his name but knew he was a doctor and was able to instantly recognise the name when I gave her a list of several other names in her Will.

She knows that Henry Stricker is an accountant and that she is leaving him ‘about $50,000’ (which is correct).

She knows that John Landerer is a solicitor and that she is leaving him $150,000 (which is correct). She states that she has known Mr Landerer ‘all (her) life’ and that he frequently took her out in the company of his mother.

She understands that Michael Conn is not a relative and reports that she has known him from his birth and that she ‘likes (him) very much’. She says she is leaving him ’50 or $100,000’ (actually the sum is $25,000).

She states that Fela Heiman is the sister of Mr Popovtzer and that she is leaving her $50,000 (which is correct).

She says that Mirel Meller is a family member of her deceased husband that she ‘looked after’ her husband and her when they were in Israel. She says she is leaving her ’50 or $100,000’ (actually the sum is $25,000).

She says that she is leaving Faye Clair Tyger, a family member on her husband’s side, ’50 or $100,000’ (actually $50,000).

She states that she is leaving Phylia Confos $50,000 (and this is correct), on the basis that she is the wife of a builder whom she has known for many years but who is ‘so rich’ that he does not need the money and she is therefore leaving it for his wife.

Presentation

At interview she was neatly dressed and well kempt and her manner was amiable. She had evidence of intellectual impairment of moderate severity. There was also evidence of nominal aphasia (inability to think of the correct word to describe an item but which is immediately recognisable once the word has been spoken by someone else) which gave the impression that thee [sic] was more intellectual impairment than there was in fact. For example her inability to recall the name of her nephew was not related to her impaired intellectual functions but was strictly related to her inability to name the word or person she was trying to think of. She immediately recognised the name amongst a list of others once it was given to her.

Conclusion

On the assumption that her assessment of her properties is reasonably accurate, and on the basis that she knew the people to whom she was leaving her money and could generally explain what those reasons were, and on the basis that she was fairly accurate in telling me what amount of money she was leaving to these people, I formed the view that she possessed testimentary [sic] capacity.”

35 It is to be noted that she in fact had 24 flats in Elizabeth Bay. She did have five flats at Brighton, but the rents were much greater than $50 per week each. She did not have any flats in the city, but did have three shops at Edgecliff, which were not mentioned. She did not mention assets other than real estate, which were worth hundreds of thousands of dollars, but her estate was worth $6 or $7 million. What that report does not reveal, but subsequently appeared in evidence, is that Professor Buhrich had planned to traverse the whole of the provisions of the will and the codicil with the testator to assess her state of mind, but the interview was terminated by the testator declining to continue with it after about 20 minutes and long before the plan was completed. The testator emerged from her interview with Professor Buhrich saying that she had answered all his questions and all was well (although she had prematurely terminated the interview). It was immediately after that that she executed the will and codicil as set out in [62] below.

36 The notes taken by her home nurses during the period leading up to the making of the will were not sought or seen by Mr Berger or Professor Buhrich. The nurses’ notes have been tendered and those covering the period surrounding the execution of the 1987 will are set out as follows:

Date Entry

9.6.87 “Was good all day but became paranoid ++ and agitated in the pm and remained so most of the evening.”
“Still paranoid for night.”

10.6.87 “Brian Harris here 10.30am (with Clara Conn?) Brian Harris and Mr and Mrs Conn 10.30 made arrangements for nephew to visit. Agitated and paranoid.”

14.6.87 “Very drowsy by 7.30pm, unable to walk by 8.30pm. Helped into bed.”

15.6.87 “Very agitated most of day.”

17.6.87 “10.30am John Landerer .”

19.6.87 “Conns came 7.30pm..... Settled night. Conns to visit until 10pm. Lots of shouting going on between the 3 of them.”

24.6.87 “Met Mrs Greenburg (sic) & son in city this am. All went off to solicitor. Phoned Margaret & (Brian Harris).”

25.6.87 “Very confussed (sic) today though calm, busy doing ‘nothing’ all day.”

30.6.87 “9.30am Brian Harris - letter given for [illegible] safety deposit box, then to Westpac Bank to Safety Deposit Box - went in by herself took articles from Box then went to J Landerer who told her to put them back - to Bank replaced contents into Box - not happy +++.”

3.7.87 “Someone upset M this afternoon. a long time at Commonwealth Bank.”

13.7.87 “Slept only a few hours last night - up 2-3 times [?] thing for the ‘coming visit’. Reasonably settled.”

14.7.87 “Slept only a few hours - as preparing for the ‘nephew’. Settled just not tired.”

15.7.87 “Nephew arrives. Thai Airlines arrives 8.10pm”

19.7.87 “Agitated +++ on my arrival/slept from 10.00pm until 5.00am. Bothered and agitated this am.”

20.7.87 “‘Very active’ today ‘with business’ (c/o B. Harris and lawyers). Confussed (sic) and a little agitated coz of this but not unmanagable (sic).”
“3pm Appt - Victor Berger”
“M given normacin and serenace this pm. Agitated and needed a good nights sleep”

21.7.87 “Woke up at 4.00am agitated and accusing everyone of theft. Went back to bed at 4.30 then asked me to fix clock at 5.00am which I did, she then accused me of going into her bedroom to steal her ring which is on her finger. Confused, agitated xxx and very angry and paranoid - a bit calmer and apologetic this am.”
“Becoming increasingly confussed (sic) & agitated C/o making new will.”
“Slightly agitated and did not want to sleep as [the next few words are not legible]. Slept four hours but rested in bed most of night.”

22.7.87 “Somewhat more calmer today - as the ‘will’ is finally settled - given 0.5mg at 12 md/day with a good settling effect”

23.7.87 “Slept from 10pm till 6am, woke up agitated. Sat [the next word is illegible] her and talked calmly for one hour - paranoid about will, money, cockroaches - problems solved by 7am [illegible], now happy 0.5mg - Brian Harris contacted about [illegible] pest man in”
“The Conns came for coffee, there was an upheaval when [illegible were brought. Conns said they would never come again. Upheaval - all calmed down mid afternoon.”

25.7.87 “Given Serenace 0.5 given. Becoming increasingly agitated.”

26.7.87 “Good day ... M had a good time. Confused & preoccupied about will.”

29.7.87 “Slept soundly from 9.30pm to 6.15am. Seems reasonably happy but refusing to speak English this am.”
“Agitated i/c with Margaret this pm but settled and happy e/c me by 6.30pm.

30.7.87 “Very calm day - did not go out dressmaking most of the day spent most of morning discussing the will with relatives. The Conns came for a few hours. Pleasant.”

2.8.87 “Good day. Visited Conns and Dita, happy, calm and pleasant then at 6.30 became agitated, delusional and aggressive and paranoid. One milligram serenace needed another milligram serenace and 5mg Valium.”
Then apparently continued over the page:
“Very agitated and paranoid had a yelling match i/c me. Up till 12 mn went to bed angry. Slept till 5am up and down from then on. Had breakfast - very hungry.”

3.8.87 “Agitated this morning and very tired. 2mg Serenace given went [??] sleep at 10.30am slept till 3pm - very drowsy. [??] sitting in chair most of afternoon just dosing - still delusional and paranoid.”

4.8.87 “Slept from 8am to 4.30 asleep. Up for half hour then back to bed until 6.30am. Demanding ++ and sounds very chesty. Serenace 1.5mg given with breakfast.
“Got through the day without any major troubles though still paranoid c/o relatives. Went to airport to say goodbye, relatively unaffected by this. Went to bed early.”

THE LAY WITNESSES

37 The non medical witnesses called by the plaintiffs to give oral evidence were Mr Berger, Professor Popovtzer and his wife, Mr Landerer and Mr Michael Conn, and by the defendant Mrs Grynberg, Victor Grynberg and Mr Confos. All those witnesses have already been identified in this judgment except Mr Conn. Mr Conn is a solicitor and the son of another Polish family with whom the testator was friendly from the time of his childhood. His parents were among those with whom she habitually communicated in Polish over the years. He deposes as to his observations of her both before and after the 1987 hospitalisation, but his evidence does not add a great deal. In approaching the evidence of these lay witnesses, and, indeed, of the medical witnesses who actually attended the testator in her lifetime one must constantly bear in mind in assessing what they say they remember and what they say they do not remember that they are talking of events more than a decade old. In virtually every case (except those of Mr Berger and Professor Buhrich) they are doing that without any contemporaneous note of the events.

38 Allowing for that, the lay witnesses, with the notable exception of the Popovtzers, were not subject to the suggestion that they were deliberately giving incorrect evidence. Mr Berger's cross examination was critical of his failure to perceive (as was asserted) the relevance of various matters to his judgment at the time that the testator had capacity; it was not really suggested that he did not honestly at the time hold that view, even if erroneous. It was suggested to Mr Grynberg that he heard more than he admitted remembering of the interview he attended between the testator and Mr Berger and that, if he doubted the testator's capacity, he would have spoken about this to Mr Berger, with whom he was well acquainted as his own solicitor. Mr Confos conceded that certain observations he made, which he asserted by affidavit were made after the testator’s bladder operation must have been made before it, as he saw the testator only twice after that operation (the second time in the street in 1988). No effective attack was made otherwise on his evidence, or on the evidence of Mr Landerer or Mrs Grynberg.

39 So far as concerns Mr Berger, I was impressed with the care with which he gave his evidence. He attended carefully to the distinction between actual recollection on the one hand and inference from and interpretation of his notes. This was of particular importance because in this case those notes play a central part to which I have already adverted. His evidence was that he remembered virtually nothing other than by reference to the notes, although with lengthy questioning about and repeated reference to them he came at times to feel that recollection was returning. It is not unnatural in my view that he has no independent recollection, since these were some pieces of business among many in his practice and done more than 13 years ago. He could offer some insights into the interpretation of the notes, since he was the author, and knows better than others can know his own use of language and his professional practices at the time. However, his approach to the notes was mostly, as the Court’s must be, one of objective interpretation of this concrete but incomplete record of what occurred. I did form the view that Mr Berger meticulously attempted to give the Court frank answers to the questions he was asked.

40 Both the Popovtzers were attacked on their statement that the testator declared before going to Mr Berger's office on 20 July 1987 that she intended to leave them the bulk of her estate. They were also attacked for the paucity of their recollection of the meeting on that day. They both say that they recall little of that meeting save that the testator insisted on their presence at it when this was questioned by Mr Berger and that it ended with the testator giving instructions for the residue of her estate to be left to Professor Popovtzer. Despite the time that has passed and bearing in mind that they claim to have detailed recollection of other events and conversations at the same and earlier times, it is difficult to accept that they recall so little concerning an occasion when the provision by the testator for Professor Popovtzer in her will was increased by some millions of dollars. Bearing this in mind, and also that early in the meeting Mr Berger’s notes show that the testator was still talking only of a specific bequest to Professor Popovtzer, I am unable to accept their evidence concerning the testator’s statements of her intention to make a residuary gift to Professor Popovtzer before the interview. In rejecting this evidence I have also taken into account my observations of their demeanour in the witness box. Mrs Popovtzer was a particularly unimpressive witness. Their evidence concerning the interview itself is of little account, in the sense that it is proved by other evidence that what they say occurred at the end of the meeting did undoubtedly occur. Their evidence concerning events earlier than the days of the interviews I generally accept. In particular, I accept their evidence as to family history and as to the testator’s outburst against Dr Muller during their 1987 visit to Australia.

41 Despite his error of timing referred to in [38], I generally accept Mr Confos’ evidence. He first met the testator when he was a child in his father’s fish shop. He subsequently became a builder and they became friendly. He attended to problems relating to her units and associated matters for her. The friendship between them was quite close and extended to social visits and not just to contact for business purposes. His friendship with the testator was something unusual in his life and I accept his recollections of it as correct. Mrs Grynberg was an impressive witness. As to Victor Grynberg, he was criticised as to his account of the interview with the testator which he attended with his mother. As I have said, it was suggested in effect that he must have remembered more than he claimed and that if he had believed that the testator had any difficulty in conveying her instructions to Mr Berger he would have drawn Mr Berger’s attention to that fact. I accept Mr Grynberg’s evidence that he was in fact somewhat embarrassed to be at the interview and as to the degree of his recollection of it. I also accept his explanation, in light of the fact that Mr Berger was well known to him and was his own solicitor, that he had confidence that Mr Berger would deal with the situation in the way that was professionally appropriate and did not think that it was his place to communicate with Mr Berger concerning the matter. I found Mr Grynberg a satisfactory witness and generally accept his evidence.

THE MEDICAL WITNESSES

42 Professor Buhrich: Professor Buhrich was a psychiatrist in general hospital practice. He is not a specialist in geriatric medicine or in dementing illnesses. There is no doubt, however, that he has had considerable experience with aged patients admitted to hospital. He was well qualified to make the diagnosis that he did on the testator’s admission to St Vincent’s Hospital in March 1987 and to assess her testamentary capacity in July 1987. He could not be said to have had any predisposition in favour of finding her capable. He said that, from his experience of her in the hospital, he came to the task in July 1987 expecting to find her clearly incapable and was surprised by her presentation to him on 22 July 1987. I have already said that it is common ground that a medical expert who has interviewed the subject generally has an advantage in the exercise at hand over one who has not. The difficulty with Professor Buhrich’s evidence is that he lacked material of particular relevance which was available to others. He was not given Mr Berger’s notes or any account of the latter’s then recent interviews with the testator, though it would not have been difficult to do so. He did not have the recent nursing notes, which were not in Mr Berger’s possession, but could have been obtained. The lack of these was rendered the more significant because he did not even complete the comparatively simply exercise he went to carry out by way of interview with the testator. She broke off the interview after about 20 minutes and before he had traversed with her the provisions of the will and the codicil. A particularly significant matter which was not reached (since he was progressing through the will and the codicil in that order) was the omission of the residuary gift to the defendant and the reason for that. A number of the pieces of information she gave him which she took as correct were in fact incorrect. The question of whether Professor Popovtzer was her closest relative contained the ambiguity as to whether the closeness was by blood or by sentiment. He conceded that had he had available the additional material he would not have formed an opinion on her capacity without conducting further tests. At the close of one day’s evidence, faced with the fact that the testator had two other blood relatives coordinate with Professor Popovtzer, he withdrew his opinion that she had had testamentary capacity. The next day he sought to reinstate the opinion on the basis that closest meant closest by sentiment, although in my view this is far from clear. As I understood his evidence, it remained that, had he known of the contents of the interviews and the nursing notes he would have required further tests before coming to a view, but that without those tests it was still his opinion that she had capacity. He appeared visibly shaken by the revelation to him of the contents of the notes, of which he appears to have been ignorant until in the witness box. His advantage of contemporaneous interview must be at the least read down in the light of the foregoing matters.

43 Professor Ehrlich: Short cross-examination demonstrated that in effect Professor Ehrlich regarded his opinion as relying on that formed by Professor Buhrich at his interview on the day the 1987 will was made, so that it would change if Professor Buhrich changed that opinion. In those circumstances I do not regard Professor Ehrlich's view as advancing the matter.

44 Dr Rosenfeld: Dr Rosenfeld's evidence was given in a clear, cogent manner. His analysis was similar to that of Professor Broe. He parted from Professor Broe on the inference to be drawn concerning the testator's capacity in July 1987. He drew the inference that the degree of recovery after the March 1987 events was sufficient for him to reach the conclusion that the testator had capacity to make the 1987 will.

45 Professor Broe: The defendant relies heavily on the evidence of Professor Broe. Professor Broe is a distinguished expert in the fields of geriatrics in general and dementing diseases in particular. He has a particularly impressive history in carrying out, coordinating and publishing research in these areas. It was suggested in address that he did not have the degree of clinical experience of Professor Buhrich and Dr Rosenfeld. His detailed curriculum vitae speaks of considerable clinical experience and he was not cross-examined on this subject. I do not accept that he was lacking in clinical experience. He was most impressive in the manner in which he gave his evidence. His examination of the extensive written material with which he had been presented had obviously been minute and his recall of it in the witness box was impressive. His manner was assured and authoritative. He had no problem in conceding propositions put to him by the cross examiner with which he agreed. But despite stringent and skilful cross-examination he adhered essentially to the view which he had originally formed that the testator did not have capacity to make the 1987 will, or, indeed, the 1986 wills. Some doubt was cast on his conclusion that the testator did not generally know the nature of her estate, but that really turns on the ambit of the concept of "generally". He allowed the advantage that Professor Buhrich had in seeing the testator on the day, but saw that as overborne by matters revealed by the contemporaneous documents which he has seen and his conclusions as to the degree of deficit from which he believes the testator suffered. Importantly, he also drew attention to the difficulty of even experienced professionals in perceiving the degree of deficit present in demented patients, which is attested in the learned literature on the subject.

46 Dr Phillips & Dr Stanley: Dr Phillips does not have Professor Broe's very high degree of specialised expertise, but is a very senior and experienced psychiatrist. He is also a most impressive witness and one who had a detailed grasp of the material with which he had been presented. Again, under skilled and persistent cross-examination he adhered to his view that the testator did not have capacity to make the 1987 will. Dr Stanley was also an impressive witness. He adhered to his view that she did not have capacity. He had the advantage of having seen the testator, having treated her in Hughlings Private Hospital. But he had the disadvantages that he had not seen her since she left the hospital and that he had lost his notes: see [12].

CONCLUSION AS TO THE 1987 WILL

47 I have not found the question of the testator’s capacity to make the 1987 will an easy one. In the authorities which I have cited the point is made that the decisions as to whether particular conduct or speech bespeak merely eccentricity on the one hand or lack of capacity on the other, harsh judgments of people on the one hand or paranoid delusion concerning them on the other, are in the end matters of value judgment. This is a case in which the Court is called on to make such value judgments in order to reach a conclusion on the question posed. The question is made harder to answer by the fact that, except perhaps in relation to Dr Muller, it cannot be said that either the testamentary provisions under challenge or the testamentary provisions they replaced were inofficious. What is or is not inofficious in the dispositions of a particular testator must be judged according to that testator’s circumstances. In the case of a woman who dies at an advanced age not leaving a widower or other partner and not leaving children, the question of provision for people in those close relationships to her does not arise. The appropriate ambit of this lady’s bounty was marked in part by the provisions she chose to make in earlier wills that were made while she undoubtedly still had testamentary capacity. The relations she had to consider were relatives no closer than a nephew or nieces. The other legatees were largely members of a close circle of friends or the children of those friends, for whom she had a special affection (as marked both by the gifts and by other evidence), particularly bearing in mind her own lack of children. Equally, the charitable gift to Moriah College could not in my view be described as an inofficious gift. Whilst she had no direct association, so far as the evidence goes, with Moriah College itself, the gift was intended in part to make a gift to children generally in the absence of children of her own and in part to ensure that there was a memorial to her husband, who was loved much and lost early. So, in my view, this is not a case in which (again leaving aside the question of Dr Muller) inferences can be drawn from the inofficiousness of the 1987 will or, indeed, any of the wills.

58 I have already indicated that, bearing in mind the passage of time, the most accurate evidence of what occurred at the time is what is recorded in Mr Berger's notes. I have no doubt that Mr Berger was attempting to record accurately what he perceived at the time he made the notes. The difficulty is that the notes do not purport to be and are not anything like a full record, but only a sketchy summary, of what occurred during the quite long attendances which they record. It was put to Mr Berger that he recorded what was of importance to him bearing in mind that he knew that he was taking instructions for a will. However, the notes are sufficiently sketchy for me not to feel any confidence that even all matters of importance were in fact recorded. Indeed, this is confirmed by the lack of any recorded instruction for the inclusion of the gift to Dr Muller: see [32].

59 The notes of 24 June 1987 set out in full in [31] above show (as does other evidence) that the testator lapsed into Polish (not Czech, as wrongly recorded in some places in the notes). This was uncharacteristic conduct. Mr Berger did not speak Polish, nor did Victor Grynberg, and the testator normally spoke to Mrs Grynberg in English. Unusually in 1987, at this stage the testator had some good to say of Dr Muller, though she wavered in the amount he should be left. But her remarks concerning Mr Landerer appear paranoid. It is inherently unlikely he would have made to her the extreme statements she alleged. I accept his denials that he made any such statements. Significantly, the only additional provision for Professor Popovtzer mooted at this stage was a transfer to him of Mr Stricker’s gift of $50,000.

60 The notes of 20 July 1987 are set out in full in [32] above. With a full awareness of the limitations I have referred to, what appears to me to be shown by those notes is as follows. The interview lasted from about 3.05 to 4.30 that afternoon. The testator had with her a copy of her most recent will and the unexecuted codicil. Mr Berger indicated his unhappiness that the interview take place in the presence of the Popovtzers but the testator said that they should stay. The testator said she wanted Professor Popovtzer to have three times what Mr Landerer had. Mr Berger added in the notes "ie, $450,000". It is impossible to tell whether the testator stipulated this figure or Mr Berger added it as recording his knowledge of the existing gift to MrLanderer. The testator then said that Professor Popovtzer should ask any questions and he asked whom most of her money went to. Mr Berger replied that he did not know the value of the estate, but $950,000 went to various persons and the balance to Moriah College. Professor Popovtzer said the estate equalled $3 to $4 million. This was a considerable underestimate. The notes then record, "She asks how know value". Her enquiry may have been as to how Professor Popovtzer knew this, but it seems more likely from what follows that it was a more general inquiry as to how the value might be known. The question was followed by a telephone call to Brian Harris of the Protective Office, who suggested a value of $6 to $7 million. He said that the testator wanted to give the Popovtzers $500,000 to buy property in Israel. The note of this telephone conversation is followed by a heading "MULLER". It is not clear whether what is recorded here was a telephone call to Dr Muller or a report (by whom it is not clear) of information obtained from Dr Muller at another time. The relevant information recorded as from Dr Muller was that Dr Stanley did not want to give a certificate (presumably as to the testator's capacity) but said to "go to Saint Vincent's", presumably a suggestion that Professor Buhrich be approached for the purpose. The next thing recorded is Professor Popovtzer saying that if the estate is worth $6 million then Moriah College was getting five times the total of everyone else and 12 times what Professor Popovtzer was getting (on the assumption that his gift was $450,000, the level mentioned earlier in the interview; incidentally, this rather suggests that the figure of $450,000 had actually been enunciated). The Popovtzers "press her that Moriah gets all". Significantly, she replied, "I didn't know that." The significance is that only a short time before, earlier in this interview, it had been stated by Mr Berger in answer to Professor Popovtzer's first question that the balance of the estate over $950,000 went to Moriah, a fact she had apparently been unable to retain in her mind in the interim. The testator then spoke again of "John v Dr". This subject matter I take to be the relativity of the gifts to Professor Popovtzer and Mr Landerer. The Popovtzers again "press her re Moriah", presumably suggesting that it was receiving too much. She persisted with the subject matter of "John v Dr", saying "$150,000 v $350,000 is what she wanted to do and says John worth half Dr." This again is significant because it differs only a short time later from the relativity which she desired at the start of the interview, namely, 1:3. There is nothing in what is recorded that shows that she had changed her mind about the relativity during the short time that had elapsed, rather than simply forgetting what she had said and thought that short time ago. Mr Berger repeated that on the present arrangements Moriah got most of the estate and asked, "Is that what you want?" She replied in the affirmative, said that she "wanted sign for my husband", and asked whether it would cost $6 million to build. There was then discussion about whether there was to be an immediate gift to Moriah or a bequest, and she indicated her intention was a bequest. There follows an equivocal note, "Now says:- Bequest = $600,000 - all but Pop (leave Steve OUT)." This appears to record her saying (correctly) that the specific bequests other than to Professor Popovtzer total $600,000 and saying that Dr Muller should be excluded. It is not clear whether she voiced his exclusion emphatically or whether Mr Berger's capitalisation was to highlight the instruction for his own purposes. It is then rather casually recorded, bearing in mind the radical nature of the change, that she enunciated that the gifts should be $1 million to Moriah College and the balance to Professor Popovtzer. At this stage Mr Berger explained there might be a doubt about testamentary capacity and reported "what Muller said". This last suggests that the earlier reference to Muller was to a telephone conversation held during this interview and not reported to those in the room until this time. Professor Popovtzer said he would find a Sydney doctor. Mr Berger said that he would prefer two. The notes continue, "She asks me he (sic) to try to get Dr who says she is well and she gets money back. Asks he stay till found one." This shows a lack of understanding of the whole purpose of getting the doctor, which had nothing to do with releasing her from the control of the Protective Office, as she obviously desired, but which had not been a matter of discussion, so far as the notes go. The notes end by recording her saying, obviously to Professor Popovtzer and recorded as an exact quote, “See what I've done for you.”

61 The next set of notes relates to the shorter and earlier interview on 22 July 1987. By this time there seems no doubt that the testator had the re engrossed will and the new codicil (as to which, see [32]). The notes commence with the testator indicating “difficulty with ‘how many zeros’ for Johnny”. The context of what was said and how the interview commenced is quite unclear, as is whether or not she had read the documents. Mr Berger seems to have sought to convey to her the magnitude of $150,000. There is then a very confused note concerning Dr Muller. The testator apparently announced a desire to give him $1,000. Mr Berger explained that she had said $50,000. She then said $100,000, and asked a question as to whether three zeros was enough, the sense of which in the context is far from clear. She then said she wanted to give him something but not much. Mr Berger explained that the doctor was coming and suggested in effect putting Steve in now and changing the will later if she changed her mind. There was then discussion about Michael Conn. The notes proceed, “she then asked about the children and sign - I explain $1,000,000 for children.” Whilst this note does not give the context very clearly, it does suggest that she was asking what provision was made by the will for Moriah College, apparently not bearing in mind or remembering that she had less than 48 hours previously given instructions for a legacy of $1 million to the defendant. She then said, “For Stephen $50,000”. The notes then record, “She asked that no amend bequest of $350,000 to Dr P. She wants him to have residue in addition.” Again, it is not clear whether she specified the sum of $350,000 when mentioning the legacy to Professor Popovtzer, or whether that was Mr Berger’s interpolation, or, indeed, in what terms she raised the subject matter. The notes conclude, “she again asks about $1 million - new building and sign. She speaks of husbands [sic] grave and granite used. I don't know why she spoke of this.”

62 The testator returned to Mr Berger’s office with the Popovtzers that afternoon and Professor Buhrich, after his interrupted interview (see [35] above), indicated to Mr Berger that he believed the testator had testamentary capacity. The three then went into another room, where Professor Buhrich and Mr Berger witnessed the testator’s execution of the will and the codicil. They were not read over to her before being executed. There is no suggestion that she herself read them at that time and no evidence that she had read them at all. After the documents had been executed the testator said words to the effect, “Which of the two, Robert or Victor [Grynberg], would be making the decisions? The fat one or the other one, is it the one who came to me and gave me flowers? Not the one who was here with Doris, not the one that I saw yesterday. Leave Robert as the executor and trustee.” Afterwards she proclaimed herself happy.

63 The conclusion that I have come to is as follows. It is clear that doubt has been cast upon the testator’s testamentary capacity in relation to the 1987 will and that the plaintiffs as the proponents of the 1987 will bear the onus of proof of testamentary capacity. I am not satisfied in the requisite fashion that it has been established that the testator had testamentary capacity at the time of giving instructions for or executing the 1987 will. In coming to that conclusion I bear in mind the considerable complexity of her estate and of the dispositions of the will and the codicil. I bear in mind that for an understanding of the dispositions comparison and cross reference had to be made between the will and the codicil. I bear in mind the undisputed diagnosis of dementia of the Alzheimer’s or frontal lobe type and the whole of the testator’s medical history. I bear in mind the florid episodes that had occurred during 1986 and particularly in 1987. I bear in mind the contents of Mr Berger’s notes recording the interviews which he had with the testator on 24 June and 20 and 22 July 1987 and what occurred on those three days. I bear in mind that, even as the testator made changes as to the provisions that she was making for various people, she did not appear to be able to bear in mind from the beginning to the end of one interview what provision she intended to make for particular individuals. I bear in mind that she was under 24 hour nursing care at the time of the instructions and execution. I bear in mind the revelations in the home nurses’ notes of confusion, agitation and paranoid ideation in her home at the times leading up to and surrounding the making of the 1987 will. I bear in mind the evidence of the views that she expressed at this time concerning Dr Muller and John Landerer, which views I have already found were affected by paranoid delusion. I bear in mind the conflict of eminent medical opinion (particularly that of Professor Broe and Dr Phillips on the one hand and Dr Rosenfeld on the other) as to her testamentary capacity. I do not doubt that Mr Berger, whose conduct in the matter was in my view not open to criticism from a professional point of view, genuinely believed her to have capacity at the time the will was made and I bear in mind the view that Professor Buhrich formed and expressed at that time. However, those opinions must be viewed against the background of all the evidence and against the evidence of Professor Broe, which I accept, of the ability of persons with the testator’s condition to present to the world as more capable than they in reality are. I bear in mind that I should not lightly make a decision depriving the testator of her power of testamentary disposition. But, taking into account the whole of the evidence, I am not satisfied that it is established that she had testamentary capacity at the time she gave instructions for or executed the 1987 will.

64 When I say that capacity is not established I should extrapolate that to say that I have doubts as to whether it is established that she could be said to have appreciated from moment to moment even generally the extent of her estate. But even if she could do this, I certainly do not think that it is established that from time to time within a comparatively short span she was able to keep together in her mind the various dispositions that she was making of her estate or of the ways in which she wished to distribute her bounty or the various calls upon it. The will was not read over to her at the time it was executed. Normally, when somebody who undoubtedly has testamentary capacity has given instructions for even a complicated will a couple of days before execution, the inference can be drawn that the testator assumed and correctly assumed that a will that they did not read at the time of execution was drawn in accordance with their instructions. I am not convinced that that inference can be drawn in the case of the testator. I have already commented upon the testator’s apparent lack of memory from time to time during the instruction interviews as to earlier parts of the conversations and earlier expressed intentions in the same interview. In relation to her state of mind at the time of execution, I bear in mind that there must be doubt as to whether she knew at the time of execution which of the Grynberg brothers she had appointed as her executor.

65 I have preferred to make my primary finding in this case upon the general basis of failure to establish capacity. I have in making this finding adverted to her past and recent history of paranoid ideation, but only as part of the general picture of her mental condition at the time. However, if it were necessary, I should decline to find that she had testamentary capacity on the basis that she was under a delusion concerning at least one of the objects of her bounty, namely, Dr Muller. As I have said, she herself had marked Dr Muller out as an object of her bounty by her earlier gifts to him. This was entirely appropriate by reason of her closeness to his parents and to their children as they grew up, and the continuing association that he had with her as her general practitioner, including doing things far outside the general line of duty of a doctor by travelling to Zurich to rescue her at the time of the 1983 episode. I have already found that the views that she developed concerning Dr Muller that led to his exclusion from the 1986 wills and the reinstatement in the 1987 will of only a small gift (compared with the greater gifts in the earlier wills and in the 1988 will) were not simply harsh, unfair or unjust views concerning him, but passed into the realm of paranoid delusion. I do not see a practical way of curing the effect of this delusion by omitting from probate some portion of the will or in any practicable way. I have also formed the view that there were elements of delusion in her attitude towards John Landerer, and that this delusion was relevant to the will making process in light of her having consistently marked John Landerer out as an object of her bounty by giving him a legacy. However, in view of the fact that the gift was always maintained at the same level, I should not on the ground of delusion concerning John Landerer alone decline to find that the testator had testamentary capacity if I were otherwise convinced that she did.

66 Since the 1987 will is found to be invalid as made without capacity, the question of whether its making was vitiated by the exercise of undue influence does not arise. If it did, although I should find that the Popovtzers urged the testator to make greater provision for Professor Popovtzer than she previously had, I should find it difficult to come to the conclusion on the evidence that her will had been overborne. However, since that question could arise only in the case of a testator who had capacity, and therefore had a different quality of mind from that which I have found the testator to possess, I do not think it is appropriate for me to express any concluded view on this subject matter.

CONCLUSIONS AS TO THE 1986 WILLS

67 The evidence concerning the testator’s condition at the time of making these wills and the circumstances surrounding their making is not nearly as ample as that in relation to the 1987 will and, as I have already noted in [2], the contest has not been vigorous, nor have the submissions been very detailed. There are reasons for this. From the point of view of the destination of the residuary gift, there is no difference between the 1986 wills and the 1985 will. From the plaintiffs’ point of view, their arguments apply a fortiori to the 1986 wills. But it is immaterial from Professor Popovtzer’s point of view whether one of the 1986 wills or the 1985 will is admitted to probate, since he does not take the residuary gift under any of them. However, the defendant asks me to admit the 1985 will to probate, and this can be done only if I find the 1986 wills made without capacity.

68 As has already been noted, there is no doubt that the course of the testator’s mental abilities over the years was in general one of decline owing to the progression of her disease. However, the 1986 wills were made about a year before the 1987 will and the testator had not suffered the florid episode which led to her hospitalisation in March 1987; had not been found incapable of managing her own affairs (although this is a different issue); and had managed to live without the full time nursing supervision which became necessary from March 1987 onwards. However, the bladder operation had already been performed, the delusion as to Dr Muller had taken shape and was put into effect in the 1986 wills by the deprivation of Dr Muller of the former gift to him; the testator’s behaviour had become generally erratic as observed by a number of people, to the extent that Mr Confos had withdrawn from contact with her; displays of paranoid ideation had become frequent (the conduct recorded at the time of her scheduling stretched back for many months); and there was in September at least the one quite florid episode where she inappropriately gave a large sum of cash to Victor Grynberg at a dinner then forgot overnight what had happened to it and was upset and confused when speaking to him the next day concerning it. Whilst, if an earlier instrument is to be admitted to probate, the Court must still come to its own conclusion and find formally that a later instrument (though not propounded) was made without capacity, the lack of support by any party to these proceedings of the 1986 wills is something that I take into account in coming to my conclusion concerning them. My conclusion is that, as these were the instruments in which Dr Muller was completely deprived of the provision previously made for him and as I have found that the testator was at that time under a paranoid delusion in respect of Dr Muller, by reason of that paranoid delusion itself the Court should decline to find that the testator had testamentary capacity at any of the relevant times. As I have said in [65] in relation to the 1987 will, I can see no way in which any of the 1986 wills can be admitted to probate in part, avoiding the effect of the delusion.

CONCLUSIONS AS TO THE 1985 WILL

69 Again, as we go back in time to the 1985 will (made by the testator in December 1985) we are treading a path along which the changes in the testator’s condition are a matter of gradation and degree. There continues to be difficulty in making the decision at any point of time whether the testator had testamentary capacity. Whatever paranoid ideation the testator may have displayed up to December 1985, it had not, so far as can be perceived, affected her mind in making the gifts she made at that time to Dr Muller and John Landerer, who were the chief objects of paranoid ideation among the objects of her bounty. It was not until about that time that Mr Confos, whom I regard as an objective observer, first perceived a significant deterioration in the manner of her dealings with the world. There is no serious opposition in any quarter to a finding that she had the capacity to make the 1985 will. After consideration of all the facts I find that the plaintiff did have testamentary capacity at the time she made the 1985 will and that that will ought therefore be admitted to probate. Short minutes should be brought in at a time to be appointed to give effect to my conclusions. Questions of costs, if not agreed, can be raised at that time.

…oOo…

Last Modified: 01/07/2002

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Citations

Grynberg v Muller [2001] NSWSC 532

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CITATION:	Grynberg v Muller; Estate Late M Bilfeld [2001] NSWSC 532
CURRENT JURISDICTION:	Probate
FILE NUMBER(S):	SC 119213/94
HEARING DATE(S):	18-23 & 26-28 February, 1 & 2 March 2001
JUDGMENT DATE:	27 June 2001
PARTIES :	Robert Benjamin Grynberg & John Landerer (Ps) Stephen Muller (D1) Moriah War Memorial College Association (D2)
JUDGMENT OF:	Hamilton J

COUNSEL :	Dr C J Birch SC (Ps) No appearance (D1) A J Meagher SC and I M Jackman (D2)
SOLICITORS:	Milne Berry & Berger (Ps) No representation (D1) Freehills (D2)
CATCHWORDS:	SUCCESSION [5] & [8] - Wills, probate and administration - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Forms of unsoundness of mind - Alzheimer’s disease - Paranoid delusion - Onus of proof - In general.
LEGISLATION CITED:	Evidence Act 1995 s 80 Protected Estates Act 1983
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Nock v Austin (1918) 25 CLR 519 Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244 Re Estate Griffith (deceased) Easter v Griffith NSWCA 7 June 1995 unreported Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Read v Carmody NSWCA 23 July 1998 unreported Shaw v Crichton NSWCA 23 August 1995 unreported Winter v Crichton (1991) 23 NSWLR 116
DECISION:	The testator was not established to have capacity to make her 1986 wills or her 1987 will but did have capacity to make her 1985 will.

Subject	Par No
The testator	2 - 6
The wills	8 - 9
The parties’ cases	10 - 14
The law: The criterion of testamentary capacity	15 - 18
The law: Onus of proof	19 - 20
The law: Undue influence	21
The testator’s medical history	22 - 28
The making of the 1987 will	29 - 36
The lay witnesses	37 - 41
The medical witnesses	42 - 46
Conclusions as to the 1987 will	47 - 66
Conclusions as to the 1986 wills	67 - 68
Conclusions as to the 1985 will	69

Date	Entry
9.6.87	“Was good all day but became paranoid ++ and agitated in the pm and remained so most of the evening.” “Still paranoid for night.”
10.6.87	“Brian Harris here 10.30am (with Clara Conn?) Brian Harris and Mr and Mrs Conn 10.30 made arrangements for nephew to visit. Agitated and paranoid.”
14.6.87	“Very drowsy by 7.30pm, unable to walk by 8.30pm. Helped into bed.”
15.6.87	“Very agitated most of day.”
17.6.87	“10.30am John Landerer .”
19.6.87	“Conns came 7.30pm..... Settled night. Conns to visit until 10pm. Lots of shouting going on between the 3 of them.”
24.6.87	“Met Mrs Greenburg (sic) & son in city this am. All went off to solicitor. Phoned Margaret & (Brian Harris).”
25.6.87	“Very confussed (sic) today though calm, busy doing ‘nothing’ all day.”
30.6.87	“9.30am Brian Harris - letter given for [illegible] safety deposit box, then to Westpac Bank to Safety Deposit Box - went in by herself took articles from Box then went to J Landerer who told her to put them back - to Bank replaced contents into Box - not happy +++.”
3.7.87	“Someone upset M this afternoon. a long time at Commonwealth Bank.”
13.7.87	“Slept only a few hours last night - up 2-3 times [?] thing for the ‘coming visit’. Reasonably settled.”
14.7.87	“Slept only a few hours - as preparing for the ‘nephew’. Settled just not tired.”
15.7.87	“Nephew arrives. Thai Airlines arrives 8.10pm”
19.7.87	“Agitated +++ on my arrival/slept from 10.00pm until 5.00am. Bothered and agitated this am.”
20.7.87	“‘Very active’ today ‘with business’ (c/o B. Harris and lawyers). Confussed (sic) and a little agitated coz of this but not unmanagable (sic).” “3pm Appt - Victor Berger” “M given normacin and serenace this pm. Agitated and needed a good nights sleep”
21.7.87	“Woke up at 4.00am agitated and accusing everyone of theft. Went back to bed at 4.30 then asked me to fix clock at 5.00am which I did, she then accused me of going into her bedroom to steal her ring which is on her finger. Confused, agitated xxx and very angry and paranoid - a bit calmer and apologetic this am.” “Becoming increasingly confussed (sic) & agitated C/o making new will.” “Slightly agitated and did not want to sleep as [the next few words are not legible]. Slept four hours but rested in bed most of night.”
22.7.87	“Somewhat more calmer today - as the ‘will’ is finally settled - given 0.5mg at 12 md/day with a good settling effect”
23.7.87	“Slept from 10pm till 6am, woke up agitated. Sat [the next word is illegible] her and talked calmly for one hour - paranoid about will, money, cockroaches - problems solved by 7am [illegible], now happy 0.5mg - Brian Harris contacted about [illegible] pest man in” “The Conns came for coffee, there was an upheaval when [illegible were brought. Conns said they would never come again. Upheaval - all calmed down mid afternoon.”
25.7.87	“Given Serenace 0.5 given. Becoming increasingly agitated.”
26.7.87	“Good day ... M had a good time. Confused & preoccupied about will.”
29.7.87	“Slept soundly from 9.30pm to 6.15am. Seems reasonably happy but refusing to speak English this am.” “Agitated i/c with Margaret this pm but settled and happy e/c me by 6.30pm.
30.7.87	“Very calm day - did not go out dressmaking most of the day spent most of morning discussing the will with relatives. The Conns came for a few hours. Pleasant.”
2.8.87	“Good day. Visited Conns and Dita, happy, calm and pleasant then at 6.30 became agitated, delusional and aggressive and paranoid. One milligram serenace needed another milligram serenace and 5mg Valium.” Then apparently continued over the page: “Very agitated and paranoid had a yelling match i/c me. Up till 12 mn went to bed angry. Slept till 5am up and down from then on. Had breakfast - very hungry.”
3.8.87	“Agitated this morning and very tired. 2mg Serenace given went [??] sleep at 10.30am slept till 3pm - very drowsy. [??] sitting in chair most of afternoon just dosing - still delusional and paranoid.”
4.8.87	“Slept from 8am to 4.30 asleep. Up for half hour then back to bed until 6.30am. Demanding ++ and sounds very chesty. Serenace 1.5mg given with breakfast. “Got through the day without any major troubles though still paranoid c/o relatives. Went to airport to say goodbye, relatively unaffected by this. Went to bed early.”