Haberfield v Larsson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

No. S PRB 2018 03246

IN THE MATTER of the Will of BERNARD THEODOOR JANSEN, deceased
BETWEEN:
MARGARET JEAN HABERFIELD
ROBERT NEIL HOLLAND
JOHN JAMES TAIT	Plaintiffs
- and -
MARINA LARSSON	Defendant
– and –
No. S PRB 2019 08476
IN THE MATTER of the Will of BERNARD THEODOOR JANSEN, deceased
APPLICATION BY:
MARINA ELIZABETH LARSSON	Plaintiff

JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19 November, 1, 2 December 2020; 10 February 2021
DATE OF JUDGMENT:	31 March 2023 (Revised 3 April 2023)
CASE MAY BE CITED AS:	Haberfield & Ors v Larsson
MEDIUM NEUTRAL CITATION:	[2023] VSC 161

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WILLS AND CODICILS – Testamentary capacity – Knowledge and approval – Challenges to last and penultimate wills of the deceased – Testator with Alzheimer’s dementia to some degree – Longstanding close relationship with spouse – Pattern of mirror wills of testator and spouse – Wills prepared by solicitors – Solicitors interviewing testator and spouse together – Contention that solicitors should have done more to ensure that testator himself had capacity and knew and approved of terms of wills – Rational wills matching family history – On all the evidence, Court satisfied of testamentary capacity and of knowledge and approval – Last will of deceased to be admitted to probate.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs (Margaret Jean Haberfield & Ors) in No. S PRB 2018 03246	Mr J Rizzi	Lewis Holdway Lawyers
For Marina Elizabeth Larsson, being the defendant in No. S PRB 2018 03246 and the plaintiff in No. S PRB 2019 08476	Ms E Konstantinou	McKean Park

HIS HONOUR:

Introduction and overview: three competing wills

This is the trial, together, of two related proceedings in the Trust, Equity and Probate List of this Court. Each proceeding concerns the estate of Mr Bernard Theodoor Jansen, deceased. The value of the deceased’s estate is approximately $2,500,000. It consists of a share portfolio worth about $1,300,000 and cash and other assets of about $1,200,000.

Mr Jansen was born on 25 August 1938. He died on 16 November 2017, aged 79. Mr Jansen’s last will was made on 8 March 2013, when he was 74 years of age. His penultimate will was made ten months earlier, on 9 May 2012, when he was 73 years of age. Those two wills are challenged in these proceedings. Mr Jansen’s previous will was made on 3 October 2006, when he was 68 years of age.

Mr Jansen made six wills after he moved from Melbourne to the south-western part of Victoria in or about 1996. Each was prepared by solicitors – Taits Legal or a predecessor of that firm – in Warrnambool. At least five of those six wills mirrored wills made at the same time by Bernard’s wife, Margaret Jansen. Bernard and Margaret had married in 1962. They were a devoted couple for 53 years until Margaret’s death in 2015.

In 2018, the surviving executors named in the last will made by Mr Jansen – the will of 8 March 2013 – applied for a grant of probate in respect of it. Marina Elizabeth Larsson, being one of Mr Jansen’s two daughters, lodged a caveat. Later, she was joined as a defendant. She contended that her late father did not have the requisite mental capacity to make the 2013 will. That is the issue in the 2018 proceeding.

In 2019, Ms Larsson, as a named executor of Mr Jansen’s will of 3 October 2006, applied in a new proceeding for a grant of probate of the 2006 will. By the 2019 proceeding, Ms Larsson sought, also, declarations that the 2013 and 2012 wills were invalid for want of testamentary capacity. Later, within the 2019 proceeding, she contended, further, that her late father did not know and approve of the contents of his 2012 will.

By agreement, evidence in each of the two proceedings has been treated as evidence in the other. The surviving executors of the 2013 will (‘the plaintiffs’) say that it should be admitted to probate; or, failing that, that the 2012 will should be so admitted. It is common ground that, otherwise, probate of the 2006 will should be granted to Ms Larsson, with leave reserved to the other surviving executor of the 2006 will.

It is also common ground that Mr Jansen was suffering from dementia of the Alzheimer’s type, to some degree, in 2012 and 2013. A provisional medical diagnosis of Alzheimer’s disease was made in March 2012, and it was confirmed in April 2012. Mr Jansen’s condition of Alzheimer’s disease is the main thing on which Ms Larsson relies. She also says, partly in relation to testamentary capacity and partly in relation to knowledge and approval, that it was Margaret, rather than Bernard, who, at least principally, initiated, and gave the instructions for, the will-making processes that took place in 2012 and 2013. Ms Larrson submits that the solicitors did not sufficiently ensure that Bernard’s wills of 2012 and 2013 reflected instructions emanating from Bernard, as distinct from Margaret.

There is no suggestion that any provision of the 2012 will or any provision of the 2013 will was suspicious or surprising or out of line with what might have been expected in the circumstances obtaining at the relevant time. Nor is there any claim of undue influence.

As will be seen, I do not consider that there is any great substance in Ms Larsson’s criticisms of the processes adopted by the solicitors in relation to the making of Bernard’s 2012 and 2013 wills. In any event, as will also be seen, I am satisfied that Mr Jansen had sufficient mental capacity to make the will dated 8 March 2013. There is no contention that he did not know and approve of the contents of that will. I am in any event satisfied that Mr Jansen did know and approve of its contents. Accordingly, the will of 8 March 2013 will be admitted to probate.

Although it is not necessary to decide, I am also satisfied, as will be seen, that Mr Jansen had sufficient mental capacity to make the 2012 will; and that he knew and approved of its contents. Hence, had I not been satisfied of capacity in relation to the 2013 will, I would have decided to admit the 2012 will to probate.

My reasons for these conclusions follow.

The ultimate issues

As indicated above, three ultimate issues have been litigated in this case, namely:

(a) testamentary capacity for the 2013 will;

(b) testamentary capacity for the 2012 will; and

(c) knowledge and approval of the contents of the 2012 will.

However, when I come to the circumstances in question in more detail, it will be convenient to do so largely in chronological order.
General legal principles relating to testamentary capacity and to knowledge and approval

There was little or no dispute between the parties about the legal principles relevant to testamentary capacity[1] or about those relevant to knowledge and approval.[2] A brief summary of the principles relating to testamentary capacity was given by Buchanan and Phillips JJA (with whom Ormiston JA agreed) in Kantor v Vosahlo2[3] as follows:
[1]Transcript of proceedings before Cavanough J (‘T’), 509 (Mr Rizzi), 540-541 (Ms Konstantinou); outline of plaintiffs’ closing submissions dated 20 January 2021 (‘plaintiffs’ closing written submissions’) [173]-[177].
[2]Plaintiffs’ closing written submissions [178]-[179]; Marina’s closing written submissions dated 2 February 2021 (‘Marina’s closing written submissions’) [6.1.1].
[3][2004] VSCA 235 [37].

…a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.

That summary was referred to with apparent approval by Santamaria JA (with whom Beach and Kyrou JJA agreed) in Veall v Veall.[4] Santamaria JA added, by way of footnote,[5] the following observations:
[4](2015) 46 VR 123, 174 [167].
[5](2015) 46 VR 123, 174 (footnote 69).
The court [in Kantor v Vosahlo] referred to Bailey v Bailey (1924) 34 CLR 558 at 566–7 per Knox CJ and Starke J. In Norris v Tuppen [1999] VSC 228, Ashley J said, at [330]:
‘To have testamentary capacity at testatrix must
1.be aware of and appreciate the significance of the act which she is embarking upon;
2.be aware in general terms of [the] character, extent, and value of the estate with which she is dealing;
3.be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims;
4.have the ability to evaluate and discriminate between the respective strengths of those claims.’

What is being discussed is capacity of a particular kind (‘testamentary’). For example, so long as it is established that the testator was aware of the reasonable claims upon his bounty and had the ability to discriminate between them, a will may still be admitted to probate even though the testator ignores the reasonable claims on his bounty or, if he addresses those claims, does not bother to discriminate between them. ‘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’: Easter v Griffith (1995) 217 ALR 284 at 290 per Gleeson CJ.

A helpful subsequent case referred to by the parties was Roche v Roche & Anor.[6] That was a case mainly about the effects of the deceased’s fronto-temporal dementia on his testamentary capacity. There was also a lesser issue about knowledge and approval. Kourakis CJ explored the relevant legal principles in great detail, and in terms fully consistent with the statements of principle made by the Victorian Court of Appeal in Kantor v Vosahlo and Veall v Veall. His Honour said:[7]
[6][2017] SASC 8.
[7][2017] SASC 8 [15]-[33], [536]-[537] (footnotes included but renumbered).

Testamentary capacity
15In Banks v Goodfellow,[8] Cockburn CJ articulated the common law test for testamentary capacity as follows:
[8](1870) LR 5 QB 549 at 565.
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.

16 In Thomas v Nash,[9] Doyle CJ cited the passage and continued:
[9][2010] SASC 153; (2010) 107 SASR 309 at 320.
[71] This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. 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.

17As with other 19^th century common law principles governing the legal effect of mental illness, the statements in Banks v Goodfellow no longer reflect modern medical knowledge. It is now recognised that there are a broad range of cognitive, emotional and mental dysfunctions, the effects of which are difficult to identify precisely or delineate from the exercise of ones ‘natural faculties’ and the reasoning capacity of the ‘sound’ mind. Moreover, rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.
18In Re Estate of Griffith (Griffith),[10] Kirby P adverted to this issue of legal policy as follows:
[10](1995) 217 ALR 284 at 295.
(6) In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: see Banks, above, at 560. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.

19In Banks v Goodfellow, Cockburn CJ explained that less than optimum mental capacity does not deny a person the power to make a testamentary disposition. Imperfections of memory caused by age or disease may still leave a sufficient understanding for the ordinary transactions of life including the testamentary disposition of property. The relevant question according to Cockburn CJ is:[11]
[11](1870) LR 5 QB 549 at 568.
Was he capable of recollecting the property he was able to bequeath; the manner of distributing it, and the objects of his bounty?

20In the matter of In the Will of Mary Wilson (Wilson),[12] Hood J stated the test as follows:
[12][1898] VicLawRp 39; (1897) 23 VLR 197 at 199.
Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. If his brain is affected by delusions, so as to interfere with the disposal of his property, and to prevent him from doing what he otherwise would have done had his mind been sound, then he does not possess testamentary capacity, and the will is not a valid will.

21In Bailey v Bailey,[13] Isaacs J (with whom Duffy and Rich JJ agreed) stated the following propositions:
[13][1924] HCA 21; (1924) 34 CLR 558 at 570.
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v Batt; Bremer v Freeman; Burnell v Corfield).
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v Green; Baker v Batt).
(3)The proponent’s duty is, in the first place, discharged by establishing a prima face case (Bremer v Freeman).
(4)A prima facie case is one which, having regard to the circumstances so far established by the proponent’s testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v Corfield; Baker v Batt; Barry v Butlin; Fulton v Andrew, and cases there cited).
(5)A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments (Swinburne on Wills, Part II., sec 5, quoted with approval by Kent C in Van Alst v Hunter).
(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v Butlin; Jones v Godrich; Wrench v Murray).
(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v Murray; Brogden v Brown; Durnell v Corfield; Symes v Green; Bama Soondari Debi v Tara Soondari Debi; Sajid Ali v Idab Ali; Jagrani Kunwar v Durga Prasad; Banks v Goodfellow; Harwood v Baker; Van Alst v Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v Murray; Brogden v Brown; Harwood v Baker; Banks v Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v Alderson; Baker v Batt; Barry v Butlin; Bur Singh v Uttam Singh).
(8)Once the proponent establishes a prima face case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v Freeman; Waring v Waring; Sutton v Sadler; Bama Soondari Debi v Tara Soondari Debi; Bates v Graves; Bur Singh v Uttam Singh).
(9)To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that that [sic] the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property (Bar Singh v Uttam Singh; Wingrove v Wingrove).
(10)The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue (Kinleside v Harrison).
(11)While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions (Durnell v Corfield).
(12)Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date (Perera v Perera, following Parker v Felgate; see also Griffin v Palmer and Barry v Butlin).
(citations omitted)

22Having regard to the statement in the second proposition that the burden of proving the will lies on the party propounding it ‘during the whole case’ the use of the Latin phrase ‘onus probandi’ in item (8) should be understood to mean only an evidential onus. To that end, the word proof in proposition (9) means evidence, and in accordance with proposition (9), evidence not only of illness but that the illness affected the testator’s mental faculties. When an opponent of a grant adduces such evidence the propounder of the will must show more than a prima facie case and must persuade the Court that, notwithstanding the evidence adduced by the opponent, the testator was not affected by a mental illness so as to deprive him or her of the capacity to make a will. That was the understanding of Creswell J, in Symes v Green,[14] when he said:

[14](1859) 1 Sw & Tr 401 at 402.
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary that it was made by a person of competent understanding. But if there are circumstances and evidence which counter-balance that presumption the decree of the court must be against its validity, unless the evidence of the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.

23Dixon CJ, Webb and Kitto JJ in Worth v Clasohm[15] explained the onus which falls back on the person propounding a will after some evidence of a mental illness affecting capacity has been adduced as follows:
[15][1952] HCA 67; (1952) 86 CLR 439 at 453. See also Boreham v Prince Henry Hospital(1955) 29 ALJ 179.
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution ...

24In Griffith, Gleeson CJ (with whom Handley JA agreed) emphasised the gravity of a determination that a person did not have a sound disposing mind and made the important distinction between a testator with an antipathy, even an unreasonable one, towards a person who has a proper claim on his estate and a testamentary disposition which results from a disorder of the mind. Gleeson CJ said:[16]
[16]Re Estate of Griffith(1995) 217 ALR 284 at 291.
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.

That observation is, as will be seen, apposite to the circumstances of this case. On the other hand, Gleeson CJ recognised that a mental infirmity which denies testamentary capacity need not involve insane delusions.
25In Read v Carmody,[17] Powell JA (with whom Meagher and Stein JJA agreed) restated the Banks v Goodfellow principle as follows:
[17][1998] NSWCA 182 at 4-5.
[The matters that the court is required to consider when determining whether the deceased had testamentary capacity] 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 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 [sic] 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 necessary corollary of this is that, if, at the relevant time the testator — or testatrix — is found to suffer from a condition — whether ‘mental illness’ (or psychosis) in the strict sense or any other form of ‘mental disorder’ (including, but not limited to, deterioration in higher intellectual function or dementia) — which detrimentally affects his — or her — consciousness or sense of orientation, or has brought about disturbances to his — or her — intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator — or testatrix — will, more probably than not, be held to lack testamentary capacity.

26The fourth requirement cited in the above passage, the capacity to evaluate and to discriminate between the respective claims, was explained in the following way by Windeyer J in Kozak v Berwecki:[18]
[18][2008] NSWSC 39 at [42].
[42] Dr Peisah placed considerable emphasis on what in the instructions given to her for her first report, was said to be the fourth requirement for a valid will, namely the ability to evaluate and to discriminate between the respective claims of such persons ― the said requirement comes from Read v Carmody. It is in some sense just an amplification or restatement of the third requirement in Banks v Goodfellow namely that the deceased ‘shall be able to comprehend and appreciate the claims to which he ought to give effect.’ Such appreciation must involve evaluation and discrimination.
(citations omitted)

27 A similar exposition was given by White J in Gray v Hart:[19]
[19][2012] NSWSC 1435 at [342]-[345].
[342] Counsel for Hrs Hart relied on a passage from the judgment of Powell JA in Read v Carmody, where his Honour, after setting out the four concepts referred to at [339] above, went on to say:
The necessary corollary of this is that, if, at the relevant time testator ― or testatrix ― is found to suffer from a condition ― whether ‘mental illness’ (or psychosis) in the strict sense or any other form of ‘mental disorder’ (including, but not limited to, deterioration in higher intellectual function or dementia) ― which detrimentally affects his ― or her ― consciousness or sense of orientation, or has brought about disturbances to his ― or her ― intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator ― or testatrix ― will, more probably than not, be held to lack testamentary capacity.

[343] As I observed in Manning v Huwes; Estate of Ludewig, Powell JA is not to be understood as saying that any mental disorder affecting higher intellectual functions, intelligence, cognition, thought content, thought processes or judgment will result prima facie in testamentary incapacity. The mental disorder must be such as to prevent the testator from satisfying the requirements drawn from Banks v Goodfellow. The point of the decision in Banks v Goodfellow was that it was only if the mental disorder influenced the capacity to make the will by affecting the ability to understand the nature of the act, the extent of the property, the identity of persons with claims on the estate and the ability to weigh those claims and discriminate between them, that the will-maker lacks testamentary capacity. In Banks v Goodfellow, Cockburn CJ also said (at 566):
It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause-namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on executors, ‘the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done’ (Williams on Executors, 6^thed vol 1. P 37, n. x).
...

[345] The fact that Ms Harris suffered from a cognitive impairment cast the onus on Mrs Gray to show that Ms Harris had the necessary capacity to make the will. But the presence of a mental disorder that detrimentally affected her cognition could not of itself provide a basis for saying that it was more probable than not that she lacked testamentary capacity. Such a conclusion could only be drawn if there were an analysis of a statistically significant, and representative, sample of will-makers who had some mental disorder, and a determination of what proportion of the sample lacked testamentary capacity. Decided cases would not provide a representative sample. As Kirby P observed in Estate of Griffith, if any partial unsoundness of mind deprived a testator of testamentary capacity, the freedom of testamentary disposition would be substantially undermined.
(citations omitted)

28The discussion of the Banks v Goodfellow test in the preceding decisions of the Supreme Court of New South Wales is, with respect, best understood as an attempt to state the test in contemporary language. It can never be known whether the requirement that the testator has a capacity to ‘evaluate and discriminate between’ competing claims elevates the Banks v Goodfellow standard for testamentary capacity. Neither the original formulation nor the more recent elaboration are precise. The words seek to formulate a legal test which balances the competing considerations discussed by Gleeson CJ and Kirby P in Griffith.
29A testator may have testamentary capacity even if his or her cognitive functioning is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for that functioning. However on both the original Banks v Goodfellow formulation and its modern restatement, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.
30It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes. A testamentary disposition is not invalidated if a testator with that capacity decides on a capricious and indeed random disposition.[20] However, the nature of the disposition, in fact made, and its underlying reasonableness may have some evidentiary affect [sic, scil, ‘effect’]. In the Estate of Stanley William Church,[21] White J explained:
[20]King v Hudson [2009] NSWSC 1013 at [51].
[21][2012] NSWSC 1489 at [53].
[53] Counsel for Marjorie put to Dr Peisah that the concept of officiousness or inofficiousness had no place in a determination of testamentary capacity in Australia in the 21^stcentury. Her response was that, from a medical point of view, it was something that would be considered, but it was not for her to comment on the legal aspects. It is well settled that what is required for a person to have testamentary capacity will vary according to the complexity of the will and the officiousness or inofficiousness of the will. In Brown v McEnroe, Owen J said (at 138):
‘Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator’s bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide.’

[54] In Bailey v Bailey, Isaacs J said (at 570-571) that:
‘The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances ...
As instances of such material circumstances may be mentioned:
(a)the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries ...;
(b)the exclusion of persons naturally having a claim upon the testator ...’ (citation of authorities omitted.

[55] These authorities were referred to with approval by Santow J (as his Honour then was) in Ridge v Rowden; Estate of Dowling; (Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). The principle expressed does not run counter to freedom of testation. It merely recognises that whether a person has the capacity to exercise the freedom can depend of [sic, scil ‘on’] what the particular will is to provide. As the High Court said in Gibbons v Wright (at 438):
‘... the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument ...’

[56] I do not understand Windeyer J in Kozak v Berwecki to have suggested a different principle. As the concluding part of para [44] of his Honour’s judgment makes clear, his Honour did not consider the will in that case to be inofficious. In my opinion Dr Peisah was right in taking account of the inofficiousness of the will in her assessment of Stanley’s testamentary capacity.
(citations omitted)

31A radical departure from long adhered to testamentary intention may also support an inference of incapacity at least in the absence of an adequate explanation.[22]
32Finally I mention, that, as Vickery J observed in Nicholson v Knaggs,[23] it is not necessary for those propounding a will to establish that the testator was capable of understanding every clause of the will and is [sic, scil ‘its’] legal effect. However, it must be shown that the testator understood that he or she was executing a will and the practical effect of its central clauses including the dispositions of property made.
33The critical question in this case as will be seen when I turn to the medical evidence is whether the frontotemporal lobe mental impairment suffered by John was such as to deprive him of the capacity to appreciate, in the sense of understanding, the relative weights of the competing claims on his estate and to make a deliberative choice between them.
[22]The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [372]-[377].
[23][2009] VSC 64 at [97].

…
Knowledge and approval
536In Veall v Veall,[24] the Victorian Court of Appeal summarised the principles relating to the requirement that a testator know and approve the contents of his or her will at as follows:[25]
[24][2015] VSCA 60.
[25][2015] VSCA 60 at [169]-[173].
[169] Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
[170] The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will’s legitimacy.
[171] In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3)The proponent’s duty is, in the first place, discharged by establishing a prima facie case.

...
[173] Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’. ‘Testamentary capacity’ and ‘knowledge and approval’ are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:
[I]t may well be that where there is evidence of a failing mind — and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.
(citations omitted)

537The Court then referred to matters which were capable of raising a suspicion including:
·the involvement of a beneficiary in the preparation of the will;
·a radical departure from previous wills;
·changing a will to advantage a person who has influence over the testator;
·feebleness of mind.

The Court continued:[26]
[179] It is the testator’s understanding that is decisive: the issue to be determined is whether the testator knew and approved the contents of the will. Sufficiency of evidence will depend upon the circumstances of the case. In Tobin v Ezekiel Meagher JA put it as follows:

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will: Barry v Butlin...; Gregson v Taylor ...; Re Fenwick ...What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye the relevant circumstances were described ... as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ...; Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ...; Nock v Austin ...; Fuller v Strum ...; Dore v Billinghurst.
(citations omitted)

[26][2015] VSCA 60 at [179].

Ultimately, Kourakis CJ was satisfied that Mr Roche had sufficient mental capacity to make the will in question and that he sufficiently knew and approved of its contents. His Honour upheld the will accordingly.[27]
[27][2017] SASC 8 [538].

Quite recently, in Carr vHomersham,[28] a decision of the Court of Appeal of New South Wales, the legal principles relating to testamentary capacity were again neatly summarised. Basten JA (with whom Leeming JA agreed) said (so far as presently relevant):[29]
[28](2018) 97 NSWLR 328.
[29](2018) 97 NSWLR 328, 330 [5]–[6] (citations omitted).

Testamentary capacity is not a statutory concept but is derived from the case law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely:
(a)the capacity to understand the nature of the act of making a will and its effects;
(b)understanding the extent of the property the subject of the will; and
(c)the capacity to comprehend moral claims of potential beneficiaries.

The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include ‘disorders of the mind’ and ‘insane delusions’. Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator’s normal capacity for decision-making.

So far as knowledge and approval are concerned, as the plaintiffs point out,[30] although it must be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in it, it is not necessary to show that he or she understood the legal effect of every clause.[31]
[30]Plaintiffs’ outline of opening submissions dated 16 November 2020 (‘plaintiffs’ opening outline’) [48]; plaintiffs’ closing written submissions [179].
[31]Rhodes v Rhodes (1882) LR 7 App Cas 192, 199-200; Nicholson v Knaggs [2009] VSC 64 [97] and cases there discussed. See also Roche v Roche [2017] SASC 8 [32] which is set out above.

The issues in the present case more specifically stated

It is not suggested that Mr Jansen was prone to any delusions that affected his testamentary capacity, or that he suffered from any mental disorder at all, apart from Alzheimer’s disease (to some degree), at the relevant times. Hence, for the two disputed wills respectively, there are only three, not four, Banks v Goodfellow issues in relation to which the evidence is to be assessed. Those issues are whether Mr Jansen had the ability to understand what he was doing when making the relevant will; whether he could understand the general nature and extent of the property of which he was disposing; and whether he had the power to appreciate and evaluate the moral claims on his testamentary bounty. There are no ‘negative elements’ to be considered.[32]
[32]Cf Carr v Homersham (2018) 97 NSWLR 328, 330 [5]–[6].

There being no suggestion of undue influence, and no suggestion that the provisions of Bernard’s 2012 and 2013 wills were in any way surprising or odd, the issues about knowledge and approval fall to be determined in this case largely by reference to the resolution of the testamentary capacity issues.[33]
[33]See and compare Veall v Veall (2015) 46 VR 123, 173–180 [166]–[179]; Roche v Roche [2017] SASC 8 [536]–[538]; Drivas v Jakopovic (2019) 100 NSWLR 505, 521 [75].

As will be seen, it is necessary in the circumstances of this case to consider not only the extent of Mr Jansen’s remaining cognitive abilities as at the relevant times and the nature of the will-making tasks that he faced, but also the nature and extent of the support and assistance that was provided to him from time to time by his wife and his solicitors.[34] The medical evidence relating to Mr Jansen’s cognitive abilities (including the evidence relating to formal testing) must be taken into account, but lay evidence,[35] including particularly the evidence of experienced solicitors,[36] can also illuminate issues of testamentary capacity and knowledge and approval. That is the situation here. Mr Jansen’s personal characteristics, pre-morbid intellectual capacity and his family relationships and history, together with his and his wife Margaret’s will-making history, all provide relevant context.
[34]See and compare Roche v Roche & Anor [2017] SASC 8 [11].
[35]See, e.g., Croft v Sanders [2019] NSWCA 303 [86].
[36]Drivas v Jakopovic (2019) 100 NSWLR 505, 517 [52].

Burden of proof

In some cases in which testamentary capacity or knowledge and approval is an issue, legal presumptions of fact play a part in the ultimate determination of the matter.[37] Not so in this case. The plaintiffs accept that, because Mr Jansen had dementia (to some degree), they cannot rely on any such presumptions and that the burden of proof, or in other words the risk of non-persuasion, rests with them throughout, both on the question of testamentary capacity and on the question of knowledge and approval.[38]
[37]G.E. Dal Pont, Law of Succession, 3^rd edition, 2021 [2.17] and cases there cited.
[38]T509–510; and plaintiffs’ closing written submissions [180]-[184].

The witnesses and the documentary evidence

The evidence before the Court consists of the oral evidence of the witnesses (whom I will identify in a moment) together with the contents of the documents numbered 1-87, 89-91 and 97-99 in the Combined Court Book (‘CCB’). The CCB was put together by the parties jointly, after the conclusion of the oral evidence and before the filing of the closing written submissions. Ultimately, there was no objection to the admission of the documents enumerated above, and they were admitted accordingly. Also, just before final oral submissions began, the plaintiffs filed an affidavit of their solicitor, John Wood, that satisfied me that all persons concerned had been provided with sufficient notice of these proceedings.

The plaintiffs’ case was presented first. The witnesses called on their behalf were, in order, James Tait (a solicitor, now retired, who was involved in the preparation of the 2012 will), Dr Phillip Hall (Mr Jansen’s main general medical practitioner between May 2013 and November 2017), Alex McCulloch (a solicitor involved in the preparation of both the 2012 will and the 2013 will) and Margaret Haberfield (who is one of the plaintiffs, but who was called as a lay witness to testify about her observations of Mr Jansen, whom she knew).

The witnesses called on behalf of Ms Larsson were, in order, Dr Nigel Jackson (Mr Jansen’s main general medical practitioner between September 2008 and March 2013), Dr Bronwyn Mackenzie (a geriatrician who diagnosed Alzheimer’s disease in Mr Jansen in April 2012), Ms Vivien George (a registered nurse, now retired, who, as the co-ordinator of a memory clinic conducted by Barwon Health, tested Mr Jansen’s cognitive abilities in early 2012 on a referral from Dr Jackson and for the purposes of the assessment to be done by Dr Mackenzie), Ms Larsson herself (who gave evidence about her deceased father and the broader family) and Ms Gayle Dwyer (an aged care assessor who assessed Mr Jansen and his wife for aged care assistance in 2013-2014).

There was no suggestion that any of the witnesses was doing other than the best they could to give what they considered to be accurate and useful evidence. There was no attack made on the credit of any of them. I accept that each witness gave evidence honestly and to the best of their ability. Any relevant features of, or limitations on, the evidence of the respective witnesses will be referred to in due course.

Mr Jansen’s early life, religion, marriage, education, architectural work, general personality, church involvement and places of living

The matters set out below under the present heading are not controversial.

As mentioned above, Bernard Jansen was born on 25 August 1938. He was born in the Netherlands. He was educated there, apart from a three month period during which he attended an Australian secondary school while his father was working temporarily in Australia. According to Marina Larsson, her father ‘grew up in Calvinist Holland in a very religious family’.[39] He remained closely attached to his Christian religion throughout his life.
[39]Evidence of Marina Larsson, T411.

Mr Jansen migrated to Australia with his parents in 1958. They settled in Melbourne.

Some four years later, in 1962, as mentioned above, Bernard married Margaret (nee Roberts). He was then about 24 years of age. The couple married in Scots’ Church, Melbourne.[40] Margaret was a secondary school teacher of history and English. For the first 34 years or so of Bernard and Margaret’s marriage, they lived in suburban Melbourne. They brought up two daughters. I will come to the family history in more detail soon. For the moment, I note that, according to the evidence, Bernard and Margaret constituted a strong and close ‘team’ throughout the 53 years of their marriage.
[40]Ibid, 422.

As a young man, Bernard attended Melbourne University and studied architecture. Thereafter he worked for many years as an architect with the well-known firm Bates Smart. He took part in the design and construction of many high rise buildings in central Melbourne. He also went to the USA for a time to work on a commission given to Bates Smart by the Australian Government to design and build a new Australian Embassy in Washington DC. At one stage Mr Jansen moved into the field of interior design and interior architecture.[41]
[41]Ibid, 419–420.

According to Marina Larsson, her father was very good at the business side of architecture, perhaps not so good at the design side. He was very good at brokering relationships and of scheduling the construction of buildings. He was good at bringing people together and on the building side of architecture. Marina thought that her father was probably not a partner in Bates Smart but that he was nevertheless a senior and respected person in that firm.[42] I accept this evidence. The picture of Mr Jansen thus painted by Marina tallies with certain descriptions given by other persons who came into contact with Mr Jansen later in his life. For example, in a report dated 21 March 2012, the nurse Ms Vivien George described Mr Jansen as ‘a delightful chap, with a reactive bubbly affect’. Likewise, Dr Phillip Hall gave evidence (which I accept) that on first meeting Mr Jansen in May 2013 he found a man who was remarkably fit physically, who looked very well, who was very polite, who interacted very well and who spoke with passion about his former career as a high level architect.
[42]Ibid, 419.

The evidence includes a statement to the effect that, in addition to practising as an architect, Mr Jansen taught architecture and industrial design.[43] In any event, Mr Jansen retired from Bates Smart in 1995, at the age of about 57 years. In about 1996, Bernard and Margaret moved from suburban Melbourne to a small farm in Noorat in south-western Victoria. Margaret then taught for a period at the nearby Glenormiston College. Bernard worked for a few years as an architectural assistant to Neil Holland, an architect based in Warrnambool. He and Mr Holland became good friends.[44] Mr Holland is one of the plaintiffs. He was not called as a witness but no party sought to make anything of that.
[43]Written report from Ms Vivien George to Dr Neil Jackson dated 21 March 2012, CCB 93. However, there is no other evidence of this; and it may represent a misunderstanding on Ms George’s part.
[44]Evidence of Marina Larsson, T420-421.

Mr Jansen gave up his registration and retired as a professional architect completely in the early to mid-2000’s.[45] After that he became involved from time to time in the ‘Frontier Services’ of the Uniting Church of Australia. That was a Church group comprised mainly of people with practical skills, such as architects, builders and engineers. They would go to remote parts of Australia – often to Aboriginal communities – and build infrastructure for the local people. Mr Jansen loved doing that. He went on three or four trips, about once per year. Mr Jansen was involved with the activities of the Uniting Church in other ways as well.[46]
[45]Ibid.
[46]Ibid.

In the second half of the 2000’s, Bernard and Margaret moved from Noorat to a house in Warrnambool.[47] Between 2013 and 2015, Margaret was suffering from the condition, myeloid leukaemia, that ultimately claimed her life. She was treated from time to time in a hospital conducted by South West Health Care, Warrnambool.
[47]Ibid, 434. Marina thought that this might have occurred in the early 2000s, but in Bernard’s and Margaret’s mutual wills of 3 October 2006, their address is still stated to be their Noorat address. And a referral letter between doctors of 18 September 2008 still gives a Noorat address for the Jansens: see CB 57.

In 2014, Margaret and Bernard moved into Mercy Place, an aged care home, in Warrnambool. I will return to that matter in due course. Margaret and Bernard were both residing at Mercy Place when they died in 2015 and 2017 respectively.

The Jansen family history in more detail, including especially Marina’s observations about the family

Once again, the matters set out under this heading are not controversial.

Bernard and Margaret had two children, Marina Larsson (the defendant) and Louisa Jansen (‘Louisa’).[48] Marina was born in 1967, and Louisa in 1969.[49]
[48]Louisa has been duly notified of these proceedings but takes no part in them.
[49]Evidence of Marina Larsson, T408.

According to Marina, the Jansen family lived a happy, middle-class life while she and her sister were young. Bernard and Margaret provided everything for their children.[50] The family resided in suburban Melbourne, although, in or about the late 1970s, they bought a hobby farm at Ruffy near Seymour, which they enjoyed visiting on weekends and holidays.[51]
[50]Ibid, 408-9.
[51]Ibid, 422-424.

In the late 1980s or early 1990s, Margaret, in addition to school teaching, trained to be a lay preacher. After qualifying, Margaret would often conduct services at small churches in the Ruffy district.[52]
[52]Ibid, 422.

In Marina’s view, her father and her mother played to their respective strengths in their partnership. Her mother was very good at structuring Bernard’s life and their daughters’ lives, and was good with money. She was extremely good at budgeting. Her father was really good around the house, which was not surprising, given that he was an architect. Margaret did the bulk of the childcare, but Bernard took his daughters out on weekends, not only to the countryside, but also to places like the National Art Gallery of Victoria.[53] Around the same period, Margaret suddenly became interested in investing in company shares. She had a serious knack for share dealing. She got Bernard involved as well. They each had share portfolios. That is why there are shares in Bernard’s deceased estate.[54]
[53]Ibid, 423.
[54]Ibid, 424.

Marina says that her father did not do much without Margaret. Margaret would take the lead in legal, accounting and financial matters. She was very industrious and switched on. Again, this was ‘about playing to your strengths in a relationship’.[55] Bernard would always drive. He would always be the one to deal with tradespeople. So there was a division of labour within the relationship.
[55]Ibid, 425.

Unfortunately, in the early 1990s, when Marina and Louisa were in their 20s and both living away from home, Louisa suffered a drug-induced psychosis, and relationships within the Jansen family, apart from the relationship between Bernard and Margaret, began to break down.[56] Since then, Louisa has had mental health and drug issues, and has been in and out of gaol.
[56]Ibid, 408-9.

Louisa has six children (including two sets of twins) by four different fathers. In order of age from eldest to youngest, they are as follows:

(a) Emma Wilson (‘Emma’) born in August 1994;

(b) James Wilson (‘James’), also born in August 1994 and the twin of Emma;

(c) Ruby Thompson (‘Ruby’) born in September 1998;

(d) Georgia Hickmott (‘Georgia’) born in March 2007;

(e) Michael Hickmott (‘Michael’) also born in March 2007 and the twin of Georgia; and

(f) Harry Jansen (‘Harry’) born in March 2009.

Emma and James are twins from one father. Ruby is from a second father. Georgia and Michael are twins from a third father. Harry is from a fourth father.[57] Louisa has not had custody of any of her six children for any significant length of time. As at October 2006, when Mr Jansen’s 2006 will was executed, Emma and James were 12 years old, and Ruby was eight years old. Emma and James lived with their father. Ruby lived with a foster family. Georgia, Michael and Harry were yet to be born. When Mr Jansen’s 2012 will was executed in May of that year, Emma and James were 17 years old, Ruby was 13, Georgia and Michael were five, and Harry was three. Each was about 10 months older when Mr Jansen’s March 2013 will was executed.
[57]Joint trial document – statement of agreed facts.

I turn now to focus more directly on Marina’s evidence about her own experiences and observations as a member of the family. I note that Marina has a PhD in history and that she works in the field of heritage. I note also that the plaintiffs do not suggest that Marina’s aim in these proceedings is to obtain a greater share of her father’s estate than she would obtain under the 2012 or 2013 will. Indeed, it is arguable that the 2012 will would give Marina a greater pecuniary benefit than the 2006 will would.[58] Her motives appear to include dissatisfaction with the work of the solicitors who prepared her parents’ wills in 2012 and 2013; ‘real concerns’ about her father’s capacity to sign a will; and a desire to achieve what she regards as a proper outcome.[59] She says that it is very important to her that correct processes and principles are followed.[60] She also refers to dissatisfaction with the way in which the solicitors had administered her late mother’s estate, but no evidence about this was given and Marina’s counsel disavowed any reliance on it.[61]
[58]The provisions of the wills in question are summarised below under the heading ‘History of will-making’.
[59]Evidence of Marina Larsson, T453-455.
[60]Ibid, 455.
[61]Ibid, 453.

In her 20s, Marina changed her surname from Jansen to Larsson because she wanted a separate and distinct identity from her family.[62] She wanted to strike out by herself as her own person and lead a life driven by her own values.[63] This occurred in a period during which she did not see or speak to her parents for five years.[64] At around the same time Marina met, and commenced a same-sex relationship with, Katie Somerville.[65] When Marina did eventually introduce Katie to her parents as her partner, her father struggled with the idea for a time (he having come from a very religious family). Later, however, they all ‘moved along’, and Bernard visited Katie’s parents in New South Wales. They all had Christmases together. It came together ‘really nicely and really unexpectedly’.[66] Marina’s mother ‘was a bit more okay with it’ from the start.[67]
[62]Ibid, 456.
[63]Ibid.
[64]Ibid.
[65]Ibid.
[66]Ibid, 411.
[67]Ibid.

About ten years later, in December 2006, Archie Somerville (‘Archie’) was born. Archie was donor conceived.[68] Marina is Archie’s non-biological parent. She has a parenting order from the Family Court and she is on Archie’s birth certificate.[69] Archie had not been born at the time of Mr Jansen’s 2006 will. Archie was five years old at the time of the 2012 will, and six years old at the time of the 2013 will.
[68]Ibid, 412.
[69]Ibid, 431.

According to Marina, the circumstance that Archie was a non-biological child of hers did not really manifest itself, especially when she and her parents and Katie were with Louisa’s children, some of whom lived with foster parents who were also their non-biological parents. So the family relationships were complex, some biological and some not. Marina considered that her parents ‘on some level’ accepted Katie and accepted Archie. However, Bernard did say sometimes that Archie was not related to him.[70]
[70]Ibid.

Bernard and Margaret did not generally look after Archie, save for one day when Margaret came to Melbourne to look after him.[71] Bernard and Margaret did not come to Melbourne to see Archie on his birthday.[72]
[71]Ibid, 412.
[72]Ibid, 414.

Nevertheless, Marina describes the period ‘from the early 2000s to 2012’ as ‘a bit of a golden era for our family’. She says: ‘We were getting along well. My 40^th birthday was fantastic. They came down to Melbourne. We would go up there for Christmas and we would bring Emma and James and Ruby. It was a really, really good time…’.[73]
[73]Ibid, 428.

On the other hand, in January 2010 there were conversations and interactions between Marina and her parents that disturbed Marina and indicated to her that her father had changed. At that time, Marina, Katie and Archie were staying with Bernard and Margaret in Warrnambool. Margaret had been telling Marina about Bernard’s behaviour being really difficult and that he was grumpy and anxious and depressed. Bernard would ‘just sort of stand there and not say anything and then he would get grumpy’.[74] Margaret was apologising for Bernard’s behaviour. Further, Bernard appeared to be quite hostile to Archie, who was four years old at the time, shoving him occasionally or just ignoring him. At one stage, Bernard pushed Archie out of the way. This caused Marina to ask her father to go to the front of the house for a talk. She put to him that he did not seem to be himself and that he seemed to be a bit angry or frustrated. She asked him what was happening. He then ‘lost it’ with her and was angry. He said things that did not make sense. Things that were contradictory. For example, Bernard said that Marina was ‘the bad one’ and that Katie was ‘the good one’, and then the reverse. He was struggling to get words out of his mouth and to regulate himself and to collect his thoughts.[75] Marina thought it best to end the conversation and go back to speak with her mother. But Marina finished up feeling a bit unsafe there, and left the next day, because some of her father’s behaviour was ‘not cognitively okay’. This was a far cry from what had happened in the previous year (2009) when, at the launch of a book that Marina had written, Bernard had come up to her and had said that he was very proud of her. Marina’s impression was that Bernard had some loss of the ability to self-regulate. Bernard’s attitude to Archie at this time was a contrast to prior times. Bernard had made him a billycart on a previous occasion. The incident in January 2010 was a ‘wake-up call’ for Marina that, maybe, on some deeper level, perhaps to do with Bernard’s religious convictions, there was a level of discomfort there.[76]
[74]Ibid, 428.
[75]Ibid, 428-429.
[76]Ibid, 431.

When Marina was leaving the house in Warrnambool on the occasion in January 2010 just discussed, Margaret had said to her words to the effect: ‘Now you know what I’m living with. Bernard is not okay’.[77] After that, for a time, Marina would ring her parents every Saturday. If anything, this brought Marina closer to her mother, who was struggling to live with someone ‘who was emotionally disinhibited and having memory problems’.[78] As time went on, her parents were less and less confident about driving to Melbourne, but they still did (with Bernard driving), and they stayed at a particular hotel in Carlton. At some point in 2011, according to Marina, ‘it became clear’ that Bernard could not speak on the phone and hold a conversation. Marina would have to do an enormous amount of work and ask straightforward questions, or her father would just not say anything. At one point, Margaret said to Marina that it was too hard for Bernard to speak on the phone and that future phone calls should be restricted to herself. Marina estimates that she would have seen her father in person about three times during 2010.[79]
[77]Ibid, 432.
[78]Ibid, 457.
[79]Ibid.

Marina began to notice that, during family get-togethers, Bernard would just stand in the background with a blank look and not do very much, receding into the background.[80] There were occasions like this in Warrnambool (at around Christmas 2011) and at the Geelong foreshore in or about March 2012.[81] On the latter occasion (in Geelong), those present were Margaret, Bernard, Marina, Archie, Katie and Harry. Bernard was able to recognise everyone present on that occasion.[82] (Indeed, Marina does not say anywhere in her evidence that there was ever an occasion when Bernard was unable to recognise the persons present.) On the other hand, in Marina’s perception, Margaret was doing her best during that period to preserve Bernard’s dignity and to craft ways forward for him such that he felt that he was in control and contributing and being positive, for example, in relation to choosing dishes in restaurants or deciding when to drive home.[83]
[80]Ibid, 435.
[81]Ibid, 435.
[82]Ibid, 436.
[83]Ibid, 436-437. Marina’s description here brings to mind the beautiful song ‘The Dutchman’ made famous by the late, great Irish folksinger, Liam Clancy. In the song, ‘Margaret’ supports and guides her greatly diminished partner (‘the Dutchman’ of the song’s title) tenderly day after day. But, unlike the Dutchman, Bernard was certainly not ‘as mad as he can be’. Indeed, as mentioned above, there is no contention in this case that Bernard was delusional or in any way ‘mad’ at any relevant time.

Beginning in July 2011, there was an attempt on the part of Marina and Katie to enter into a kinship foster care arrangement in respect of Louisa’s sixth child, Harry, who, as mentioned above, had been born in March 2009. Very soon after Harry was born, he went to a foster family, the Millgates. The Millgates looked after Harry as an infant very well.[84] However, the Department of Human Services (‘DHS’) decided that Louisa should be given another chance to look after Harry. Harry then went back to Louisa, but that did not work out. Next, Harry went to the Thompsons, another experienced foster family, who were fostering Ruby at that time. However, DHS considered that the Thompsons were too old to continue to look after Harry as well. Consequently, in July 2011, DHS approached Marina and Katie to see whether they would take Harry into a kinship foster care arrangement. Marina thought that this would be an ‘amazing opportunity’ to do something positive within the family. Marina and Katie connected Harry back to the Millgates and became ‘a bit of a hub’ for the other kids.[85] However, it became clear that the dynamic within the family with Harry was not working out, in that he had some attachment issues (not uncommon for children who have been moved around). Marina and Katie consulted a child psychologist and Katie took some time off work to try to settle Harry in, but to no avail. Marina and Louisa made the ‘heartbreaking, devastating’ decision to relinquish Harry. DHS then organised a pathway back to the Millgates for Harry. The transition was done in a slow and considered way. Marina did not tell her parents about the decision initially. According to Marina, this was because her mother was struggling with Bernard and with his Alzheimer’s disease. (Margaret had told Marina at about this time (i.e. in the first half of 2012) that Bernard had ‘the big A’, i.e. that Bernard had been diagnosed with Alzheimer’s disease. At that stage, Marina thought that this had been obvious for a while).[86] Also, Marina wanted to be sure that there was a really secure arrangement for Harry before telling her mother what had occurred. Marina told her mother about the relinquishment for the first time in May 2012. Her mother was ‘absolutely devastated’ (and Marina could understand why).[87] Marina conveyed the news to her mother by telephone in a ‘really distressing and alarming phone call’. Marina felt that she had let her family down.
[84]Ibid, 415.
[85]Ibid, 416.
[86]Ibid, 443-444.
[87]Ibid, 416.

Even in May 2012, when Marina told her mother that she and Katie had relinquished Harry, the position of Harry was not fully settled. The Thompsons made a bid to foster Harry. This was opposed by DHS. Margaret Jansen was adamant that Harry should go to live with the Thompsons if Marina and Katie could not look after him. Margaret considered that Marina had done a terrible thing. As a result, from May 2012, the relationship between Marina and her parents broke down. There were no more weekly telephone calls — indeed, no contact at all — until Harry was confirmed with the Millgates, which happened in mid to late 2013.[88]
[88]Ibid, 440, 459.

Contact between Marina and her mother was only re-established by the intervention of Marina’s aunt.[89] In mid to late 2013, Marina began again to make phone calls to her mother on Saturday mornings. In those conversations, Margaret would say words to the effect: ‘I’m a carer now. You know dad’s really grumpy all the time. He just sits around the house’.[90] According to Marina, at that time, everyone in the family knew that Bernard had Alzheimer’s.[91] But it seems that she had no direct contact with her father at all (by telephone or in person), and no contact with her mother except by phone, between May 2012 and February 2014.[92]
[89]Ibid, 440, 443, 459.
[90]Ibid, 444.
[91]Ibid.
[92]Ibid, 459.

On 14 February 2014, while at work in Melbourne, Marina received a phone call from the manager of a hotel in Geelong, who said that Margaret had had a fall in the hotel and was in a state on the floor, and that Bernard had wandered off.[93] Marina drove down to Geelong. In the meantime, Bernard had been found. Marina was reunited with her parents in the emergency department of the Geelong Hospital. Margaret was very unwell. Bernard was completely disoriented. So it was clear that Marina needed to help them and to put aside the unpleasantness relating to Harry. Marina drove her father back to Warrnambool. That began ‘a whole new era of their health declining rapidly’.[94] Marina became a support and care person. She helped to make arrangements with the abovementioned Margaret Haberfield, ‘who is just a complete gem’,[95] for the care and support of Margaret and Bernard.
[93]Ibid, 439.
[94]Ibid, 439.
[95]Ibid, 439.

So far as her parents’ succession planning is concerned, Marina did not ever discuss this with her father. Any conversations were with her mother. It was as if Margaret had crafted one single will.[96] At some time after 2006, Marina became aware of a Commonwealth scheme under which parents who had children with disabilities could set up a disability trust for them. Marina suggested to Margaret that this might be applicable to the Jansen family and might be protective for Louisa (whom they all loved and respected)[97] and beneficial for Bernard and Margaret.[98] Margaret thought that this was a good idea.[99] Marina was relieved and happy about this, because she was concerned about Louisa’s vulnerabilities.[100]
[96]Ibid, 425-426.
[97]Ibid, 427.
[98]Ibid, 426.
[99]Ibid, 427.
[100]Ibid, 427-428.

Marina has no recollection of any conversations with her mother (or her father) in or about 2012 or 2013 about changing Margaret’s and Bernard’s wills. On the other hand, Marina did have such a discussion with her mother in 2014, when Louisa was about to come out of gaol. Marina was concerned that drug addicts like Louisa might be more prone to overdose just after leaving prison; and that, if Louisa were to predecease Marina, this might affect the way in which the estate flowed. As a result, Margaret went to see Taits, and this led to the 2014 codicil to Margaret’s will.

In cross-examination, Marina accepted that Louisa’s children would be in greater financial need than Archie would be.[101] Marina also accepted that her parents believed that Katie’s parents were wealthy. In fact, however, Katie’s parents were not wealthy. Their assets were much less valuable than the assets of Bernard and Margaret.[102]
[101]Ibid, 459-460.
[102]Ibid, 460.

Marina’s relationship with Louisa is strained. Marina has not seen Louisa, or had any physical contact with her, or spoken to her, since Louisa’s daughter, Ruby, was born in 1998.[103] Marina did not want to disclose her home address to the Court in this proceeding because she was concerned that her safety would be compromised if Louisa discovered her address.[104]
[103]Ibid, 455-456.
[104]Ibid, 408.

On balance, in my view, Marina’s evidence about her parents and about the Jansen family history generally does little to undermine the plaintiffs’ case and, in some ways, tends to support that case. In particular, Marina paints a picture of her father as:

(a)a person with a delightful personality (being a personality which, according to other evidence,[105] he retained until at least the first half of 2013);
(b)a devoted husband to Margaret, who was also devoted to him;
(c)a person who, from the outset, played to his strengths in his partnership with Margaret, generally leaving legal, accounting and financial matters to her;
(d)a person whose religious convictions played a part in the incident involving Archie of January 2010, being an incident that was isolated, in the sense that it did not recur on future occasions when Bernard and Archie were both present at family gatherings;
(e)a person who was still driving long distances until at least 2012;
(f)a person who, although quieter and more withdrawn at family gatherings in 2011 and 2012, could still recognise all of the family members present at the get-together in Geelong in March 2012;
(g)a person who, although needing a significant degree of consideration, care and support from Margaret as from about 2010, became part of ‘a new era’ of his and Margaret’s health ‘declining rapidly’ that only began in or about February 2014.

[105]See [31] above and see below.

Further, as the plaintiffs point out,[106] insofar as Marina may have had ‘real concerns’ about her father’s capacity to make a will in 2012 or 2013, Marina had only very limited contact with her father after January 2010 and had no contact with him or with her mother, at all, even by telephone, between May 2012 and mid to late 2013. And it seems that Marina did not have any physical contact at all with either of her parents between May 2012 and February 2014.
[106]Plaintiffs’ closing written submissions, [126]-[130].

Margaret Haberfield’s evidence about the Jansens

As mentioned above, Marina regards Mrs Margaret Haberfield as ‘just a complete gem’, and Marina trusted her to provide care and support for Bernard and Margaret in Warrnambool after the events of February 2014. Mrs Haberfield has no pecuniary interest in the outcome of this case. In her evidence, Mrs Haberfield was demonstrably doing her absolute best to remember things and to assist the Court to come to a proper decision, but she did have quite some difficulty with dates and the order of events. Taking into account other matters that are common ground, I would take the following from Mrs Haberfield’s evidence.

Mrs Haberfield lives in a small town on the Great Ocean Road, about 25 kilometres from Warrnambool. Her mother and Margaret Jansen’s mother were cousins. So she and Margaret Jansen were second cousins. However, she and Margaret had not known each other, and had not met, until after the Jansens moved to Noorat in about 1996. They first met at a local church where Margaret Jansen was acting as a lay preacher. Their respective husbands met each other too. From that time, the two couples became close friends and spent quite a bit of time with each other. After the Jansens moved to Warrnambool (which occurred in the second half of the 2000s), the Haberfields saw more of them than before: they met nearly every week, and often two or three or even more times per week.[107]
[107]Evidence of Mrs Haberfield, T253-256.

According to Mrs Haberfield, after the Jansens moved to Warrnambool, ‘Bernard at that stage was okay. Was really good. But Margaret [Jansen] was struggling a bit [with her health]’.

Another reference point for Mrs Haberfield in her evidence was the time when Bernard and Margaret were admitted to Mercy Place. It is common ground that that occurred on 17 April 2014.[108] Mrs Haberfield recounted some episodes relating to Bernard’s conduct or behaviour after he was admitted to Mercy Place, but, because of the lapse of time and the (admitted) rapid decline of Mr Jansen from about February 2014 onwards, those episodes do not bear sufficiently on the present issues to warrant examination.
[108]Joint chronology.

Prior to the Jansens being admitted to Mercy Place, Mrs Haberfield would visit them in Warrnambool almost every week after shopping. In addition, when Bernard was ‘quite well’, he would drive out to the Haberfields’ home two or three times per week. He would not stay long — just have a cup of tea and go back home. Margaret would come with Bernard if she was free, but, otherwise, Bernard would drive out on his own.[109]
[109]Evidence of Mrs Haberfield, T256-257.

Shortly prior to 8 March 2013 (being the date of Bernard’s 2013 will), Bernard went to the Haberfields’ house to discuss with Mrs Haberfield what he might say in his will.[110] On this occasion, Bernard had driven out on his own, not with Margaret.[111] The Haberfields were ‘quite worried about how he was going to get home’.[112] In any event, Bernard told Mrs Haberfield that he was concerned about his two daughters; and he asked her whether he should give his money to them or, instead, to his grandchildren.[113] In this context, Bernard told Mrs Haberfield that Margaret (Jansen) wanted Bernard to leave some money to their grandchildren. Bernard then said to Mrs Haberfield:[114]

[339]Ibid.

(c) Louisa deserted all kids before 12 months old but grandkids are still in contact with Bernard and Margaret;[340]
[340]Evidence of Mr McCulloch, T174.

(d) Louisa has a drinking and drugs problem;[341]
[341]CCB 112–113.

(e) Harry is now with Marina and partner as foster child but not approved yet;[342]
[342]Evidence of Mr McCulloch, T174–175.

(f) they had a house (title at the bank) and had a line of credit with $42,000 outstanding;[343]
[343]Ibid, 175, 176.

(g) Bernard had shares, Margaret had shares and they had shares jointly in total worth $2 million;[344]

(h) Louisa’s share of the estate was to be held on disability trust;[345] and

(i) Bernard and Margaret provided a note of instructions during the conference regarding the distribution of their estate.[346]

[344]Ibid, 176.

[345]Ibid.

[346]Ibid, 177; CCB 119–120.

With respect to testamentary capacity when Bernard gave his instructions for the 2012 will, Mr McCulloch gave the following evidence:

(a) Mr McCulloch believed that both Bernard and Margaret understood their assets;[347]
[347]Ibid, 181.

(b) Bernard understood that his family situation was complex and he and Margaret had a strong desire to provide for their grandkids;[348]

(c) Bernard understood how his assets would be treated in a will;[349] and

(d) Bernard understood what Mr Tait was saying during the conference and the effect of his will and his assets.[350]

[348]Ibid, 181.

[349]Ibid.

[350]Ibid, 182.

Conference on 9 May 2012

On 9 May 2012, Bernard and Margaret met with Mr Tait and Mr McCulloch at the offices of Taits Legal in Warrnambool and executed the 2012 wills and powers of attorney. The conference lasted about an hour.[351]
[351]Mr Tait’s evidence, T49. See also time recording at CCB 177.

The terms of the 2012 wills made by Bernard and Margaret are summarised above.[352] It may be added that, by the 2012 wills, Bernard and Margaret appointed each other, Marina and Mr Tait as executors; and that Louisa’s half of the public listed company shares were to be held in a disability trust the terms of which appear at Appendix A of the wills; and that the terms of the trusts for Louisa and her family and for Marina and her family appear in clause 6 of the wills.
[352]See [159] above.

On 9 May 2012, Bernard and Margaret also signed enduring powers of attorney (financial). Bernard appointed Margaret as his attorney and Marina as his alternative attorney.[353] Margaret appointed Marina as her attorney and Bernard as her alternative attorney.[354]
[353]CCB 167–170.
[354]CCB 173–176.

On the same day (9 May 2012), Bernard and Margaret also signed enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Marina as his alternate agent.[355] Margaret appointed Marina as her agent and Bernard as her alternate agent.[356]
[355]CCB 165–166.
[356]CCB 171–172.

Also on the same day, Mr Tait and Mr McCulloch witnessed Bernard’s execution of the power of attorney (financial) and certified on that document that ‘at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney’.[357]
[357]CCB 167–170.

Further, once again on the same day, Mr Tait and Mr McCulloch witnessed Bernard’s execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[358]

Evidence of Mr Tait from the conference on 9 May 2012

[358]CCB 165–166.

Mr Tait recalled the following matters from the meeting on 9 May 2012:

(a) he read over and paraphrased the 2012 wills with Bernard and Margaret while Bernard and Margaret read along with their own copies;[359]
[359]Evidence of Mr Tait, T46, 47, 48.

(b) he again explained the way the trust in the 2012 will would work and Bernard and Margaret seemed to understand his explanation;[360]
[360]Ibid, 46–47.

(c) he satisfied himself that Bernard and Margaret understood the 2012 will by asking them if they agreed and understood each paragraph of the 2012 will as he read it over to them;[361]

(d) Bernard signed the 2012 will in his presence;[362] and

(e) the conference went for about an hour.[363]

[361]Ibid, 49.

[362]Ibid, 56–57.

[363]Ibid, 49–50.

Mr Tait’s opinion was that Bernard had testamentary capacity when he signed the 2012 will.[364]

Evidence of Mr McCulloch from the conference on 9 May 2012

[364]Ibid, 98.

Mr McCulloch recalled the following matters from the meeting on 9 May 2012:

(a) Bernard signed the 2012 will in his and Mr Tait’s presence;[365]

(b) Mr McCulloch could not recall Bernard having any difficulties understanding the will on the day it was signed;[366] and

(c) the conference went for about an hour.[367]

[365]Evidence of Mr McCulloch, T183.

[366]Ibid, 185–186.

[367]Ibid, 188; CCB 177.

Conference on 11 July 2012

On 11 July 2012, Bernard and Margaret signed new enduring powers of attorney (financial) at the offices of Taits Legal in Warrnambool. Bernard appointed Margaret as his attorney and Margaret Haberfield as his alternative attorney.[368] Margaret appointed Margaret Haberfield as her attorney and Bernard as her alternative attorney.[369]
[368]CCB 185–188.
[369]CCB 193–196.

On the same day (11 July 2012), Bernard and Margaret also signed new enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Margaret Haberfield as his alternate agent.[370] Margaret appointed Margaret Haberfield as her agent and Bernard as her alternate agent.[371]
[370]CCB 189–190.
[371]CCB 191–192.

I note that Marina had been dropped from the powers of attorney. This followed the breakdown of relations between Marina and her parents in May 2012 following the relinquishment of Harry.

On 11 July 2012, Mr Tait and Mr McCulloch witnessed Bernard’s execution of the power of attorney (financial) and certified on that document that ‘at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney’.[372] On the same day (11 July 2012) Mr Tait and Mr McCulloch witnessed Bernard’s execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[373]

Evidence of Mr Tait from the conference on 11 July 2012

[372]CCB 185–188.

[373]CCB 189–190.

Mr Tait recalled the following matters from the meeting on 11 July 2012:

(a) he explained to Bernard and Margaret the changes they had made to the powers of attorney and Mr Jansen seemed very approving of the changes;[374] and

(b) Bernard was able to understand what he was doing and Mr Tait did not see any capacity issues.[375]

Evidence of Mr McCulloch from the conference on 11 July 2012

[374]Evidence of Mr Tait, T59.

[375]Ibid.

Mr McCulloch recalled Bernard coming in to sign the powers of attorney on 11 July 2012 but he does not recall the substance of the meeting.

The handwritten note

Bernard and Margaret brought a two page handwritten note with them to the conference with Taits Legal on 28 March 2012 (‘the 2012 note’).[376]
[376]CCB 119–120; evidence of Mr Tait, T43, 44.

The 2012 note contained a list of Bernard and Margaret’s children and grandchildren and the percentage of the estate that each child and grandchild was to receive.

There was a question raised at the hearing as to whether Bernard had written any part of the 2012 note.

The 2012 note was first mentioned in evidence by Mr Tait who described it as ‘the table that Mrs Jansen produced at the interview’.[377] A little later in his evidence, Mr Tait said that he was uncertain about who wrote the note.[378] He said that he formed the view that the 2012 note may have been prepared in common by Mrs Jansen and Bernard, but it was not clear who had actually prepared it.[379]
[377]Evidence of Mr Tait, T37.
[378]Ibid, 43.
[379]Ibid, 45.

This became the subject of some controversy at the hearing. The 2012 note was shown to Marina. Initially, Marina said that she was confident that all of the handwriting in the 2012 note was that of her mother. It was then pointed out to Marina that there seemed to be some differences in style between parts of the 2012 note. She looked again at the note carefully and acknowledged the apparent differences. However, she thought that the differences could be explained because of the different subject matters of the sections concerned.[380] I was impressed with Marina’s evidence in this regard and I accept it. Accordingly, I will proceed on the basis that the 2012 note was written up entirely by Margaret Jansen. Of course, that does not mean that Bernard did not contribute to the content of the note when Margaret was preparing it. And I note also that the instructions in the note were the subject of consideration at the conference on 28 March 2012 attended by both Bernard and Margaret.
[380]Evidence of Marina Larsson, T451.

The making of the 2013 will

In March 2013, Bernard and Margaret consulted Taits Legal in Warrnambool to update the 2012 will. Mr Tait was away at the time, so Bernard and Margaret saw Mr McCulloch alone.

With respect to the 2013 wills, the following events took place:[381]

(a) on 5 March 2013, Bernard and Margaret met with Mr McCulloch at the offices of Taits Legal in Warrnambool to provide instructions for the 2013 wills and updated powers of attorney; and

(b) on 8 March 2013, Bernard and Margaret executed the 2013 wills and powers of attorney at the offices of Taits Legal in Warrnambool in the presence of Mr McCulloch and his assistant, Lynette Harry.

[381]Joint chronology.

Mr McCulloch gave evidence about the conferences on 5 March 2013 and 8 March 2013 that is relevant to the issue of testamentary capacity.

Conference on 5 March 2013

As mentioned above, on 5 March 2013 Bernard and Margaret met with Mr McCulloch at Taits Legal in Warrnambool to provide instructions for the 2013 wills.

Evidence of Mr McCulloch from the conference on 5 March 2013

Mr McCulloch gave the following evidence regarding the conference on 5 March 2013:

(a) Bernard and Margaret came into the office at Taits Legal to provide instructions to update their will;[382]

(b) Bernard and Margaret provided type-written instructions as to how they wanted to update their wills;[383] and

(c) Mr McCulloch reviewed the written instructions during the conference and made his own handwritten notes on them either during the conference or some time afterwards.[384]

[382]Evidence of Mr McCulloch, T190.

[383]CCB 198–200.

[384]CCB 201–202.

Mr McCulloch also made his own handwritten file note of the instructions during the conference.[385] That file note states that:
[385]CCB 201–202.

(a) the meeting commenced at 2.00pm;

(b) Margaret and Bernard were to be executors;[386]
[386]Ibid. See also evidence of Mr McCulloch, T191.

(c) the changes to the will were as per the sheet provided;[387]

(d) Marina had had care of Harry but could not cope and Harry was handed over to DHS;[388] and

(e) the new wills were to be signed on 8 March 2013 as Margaret was not well with a blood disease.[389]

[387]Ibid.

[388]Ibid.

[389]Ibid and see evidence of Mr McCulloch, T192.

With respect to Bernard’s capacity on 5 March 2013:

(a) Mr McCulloch does not remember specifics of the meeting;[390]
[390]Evidence of Mr McCulloch, T195.

(b) he does not remember Bernard having any difficulty understanding his assets;[391]
[391]Ibid, 195.

(c) he does not remember having any doubts about Bernard understanding his family situation;[392]

(d) he does not recall forming a view about Bernard’s understanding of what a will was and its effects;[393] and

(e) he does not recall Bernard not understanding the process of discussing his assets and the effect of his will.[394]

[392]Ibid.

[393]Ibid, 195–196.

[394]Ibid, 196.

Conference on 8 March 2013

On 8 March 2013, Bernard and Margaret met with Mr McCulloch at Taits Legal in Warrnambool to execute the 2013 wills and updated powers of attorney.

The main terms of the 2013 wills are set out above.[395] By those wills, Bernard and Margaret appointed each other, Margaret Haberfield, Neil Holland and Mr Tait as executors.
[395]See [167] above.

On 8 March 2013, Bernard and Margaret also signed new enduring powers of attorney (financial) at Taits. Bernard appointed Margaret as his attorney and Margaret Haberfield and Neil Holland jointly as his alternative attorneys.[396] Margaret appointed Margaret Haberfield as her attorney and Neil Holland as her alternative attorney.[397]
[396]CCB 253–260.
[397]CCB 263–268.

On the same day (8 March 2013), Bernard and Margaret also signed new enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Margaret Haberfield as his alternate agent.[398] Margaret appointed Margaret Haberfield as her agent and Neil Holland as her alternate agent.[399]
[398]CCB 261–262.
[399]CCB 269–270.

Mr McCulloch and Lynette Harry witnessed Bernard’s execution (on 8 March 2013) of the power of attorney (financial) and certified on that document that ‘at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney’.[400]
[400]CCB 253–260.

Mr McCulloch gave evidence that his usual practice when witnessing a power of attorney was to satisfy himself that the donor of the power understood what they were doing and what their options were.[401]
[401]Evidence of Mr McCulloch, T247–248.

On 8 March 2013, Mr McCulloch and Lynette Harry witnessed Bernard’s execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[402]

Evidence of Mr McCulloch from the conference on 8 March 2013

[402]CCB 261–262.

Mr McCulloch said that during the signing conference on 8 March 2013 he would have gone through the 2013 wills with Bernard and Margaret, and asked them if they understood the wills. If they did understand the wills, he (Mr McCulloch) would have signed them as a witness.[403]
[403]Evidence of Mr McCulloch, T196.

Mr McCulloch made a typed file note from the conference on 8 March 2013.[404] That note states that:
[404]CCB 203.

(a) Mr McCulloch explained the contents of the wills and asked if they both understood;

(b) they (being Bernard and Margaret) said they did understand and were happy with the contents of the will;

(c) Mr McCulloch explained Bernard’s medical and financial power of attorney to Bernard and he understood and signed them; and

(d) the conference lasted for 25 minutes.

With respect to capacity, during the conference on 8 March 2013:

(a) Mr McCulloch formed the view that Bernard understood how his will operated;[405]
[405]Evidence of Mr McCulloch, T199.

(b) Mr McCulloch did not form an opinion that Bernard did not understand what his assets were;[406]

(c) Mr McCulloch did not form an opinion that Bernard did not understand his family situation;[407] and

(d) Mr McCulloch did not form an opinion that Bernard did not understand how the will operated and the nature of the will.[408]

[406]Ibid, 204–205.

[407]Ibid, 204.

[408]Ibid, 204.

Mr McCulloch’s contact with Bernard in May 2014

In May 2014, whilst resident at Mercy Place, Margaret contacted Taits Legal to update the 2013 wills and arranged for Mr McCulloch to attend Mercy Place.

Mr McCulloch recalls meeting with Margaret and Bernard at Mercy Place on 29 May 2014.

Mr McCulloch’s evidence from that meeting was that Bernard lacked capacity to change his will at that time. Mr McCulloch formed this view after Bernard was unable to recall his daughters.[409]
[409]Ibid, 206; CCB 278–285; CCB 283–284; Evidence of Mr McCulloch, T211.

Mr McCulloch declined to update Bernard’s 2013 will because he formed the view that Bernard lacked testamentary capacity at that time.

Marina’s points about the making of the wills and the solicitors’ evidence

In her closing submissions, Marina’s counsel notes that Mr Tait was only involved personally in relation to the events of 2012, as distinct from 2013.[410] That is common ground.
[410]Defendants’ closing written submissions [9.1.1].

Next, Marina’s counsel notes that there is nothing in the evidence to the effect that Mr Tait had before him the previous wills for the period between 1996 and 2003.[411] That seems to be a matter of no moment. There is no dispute that Mr Tait had with him, and discussed with the Jansens, the terms of their 2006 mutual wills and the changes that they wished to make to update those wills.[412] The previous wills for 1996 to 2003 remain relevant to reinforce the proposition that the later wills were consistent with the Jansens’ previous pattern of will making, and were rational and unsurprising. That proposition is not in dispute.
[411]Ibid, [9.1.2].
[412]Evidence of Mr Tait, T35.

In the same context, Marina’s counsel makes passing reference to Mr Tait’s evidence that he would generally make ‘small talk’ with a client to ascertain their background and family situation and that this would also assist him in determining whether there were any issues with capacity. If issues in relation to capacity did manifest themselves, only then would Mr Tait request a medical report.[413] Counsel did not say what was wrong with that approach.
[413]Evidence of Mr Tait, T35.

Next, counsel submitted that Mr Tait’s evidence did not establish with sufficient particularity that Bernard, as distinct from Margaret, provided the solicitors with instructions.[414] It is true that Mr Tait frequently referred to Bernard and Margaret as a collective, using the word ‘they’ quite often. Nevertheless, Mr Tait also made several relevant references to Bernard himself as a participant. As mentioned in the summary given above of Mr Tait’s evidence from the conference on 28 March 2012, Mr Tait acknowledged that Margaret did most of the talking, but also said that Bernard ‘certainly participated’.[415] Mr Tait said that Bernard was not looking out of the window or doing things that would suggest that he was not involved in the process. When cross-examined about this, Mr Tait said that Bernard was participating ‘[o]ccasionally with speaking’ and body language (including nodding).[416] Moreover, Mr Tait mentions that Bernard was particularly interested in the company shares.[417] It is true that Mr Tait said that he could not remember whether it was Mr Jansen or Mrs Jansen who answered his opening questions about the 2006 will and about the subsequently born children and the like, but he said that it could have been either of them. Unsurprisingly, at that distance in time (some eight years), he could not remember.[418] And there is another matter of considerable importance. It was not Margaret Jansen but Bernard Jansen who (as the Court now knows from other evidence) was particularly concerned about any bequest to Archie because Archie was not of the Jansen bloodline. It is true that Mr Tait said that it had been ‘intimated rather than stated clearly’ that Bernard had a difficult relationship with Marina because of her lifestyle and because Archie was not of the Jansen bloodline. But Mr Tait gave clear evidence that Bernard was ‘very interested’ in what would go to Archie.[419] This may have been a topic that was raised delicately, but it was certainly raised and it assumed importance. Indeed, Mr Tait came up with a suggestion that Archie be included in Marina’s 50%; and Mr Tait said clearly that Bernard (himself) was ‘happy with that’.[420] It seems highly likely that Bernard did participate in discussions about (at least) those topics. Thus Mr Tait is likely to have had ample opportunity to make observations of Bernard’s capacity. And Mr Tait nevertheless had ‘no inkling’ that Bernard did not understand what he was doing.
[414]Defendants’ closing written submissions [9.1.3].
[415]Ibid, 36.
[416]Ibid, 65–66.
[417]Ibid, 38.
[418]Ibid, 66.
[419]Ibid, 39.
[420]Ibid, 55.

Finally, as to Mr Tait’s evidence, Marina’s counsel submits that, in cross-examination, Mr Tait directly contradicted his earlier evidence that, had he been made aware of capacity issues, he would have obtained a medical report from a practitioner.[421] In my view, there was no contradiction. Rather, what Mr Tait said, in effect, was that he would not automatically accept that a medical report asserting that a client did not have testamentary capacity was determinative. Mr Tait commented, correctly, that doctors may know what dementia is in medical terms but they do not necessarily know how the law treats dementia for testamentary capacity purposes.[422]
[421]Defendants’ closing written submissions [9.1.3(q)].
[422]Ibid, 70.

Turning to Mr McCulloch’s evidence about the conference on 28 March 2012, Marina’s counsel makes a series of complaints about Mr McCulloch not being able to recall specific details as to who said what at the conference.[423] It is hardly to be expected that Mr McCulloch would retain such specific recollections. And, in the end, Mr McCulloch was unshaken in his view that Bernard had testamentary capacity and knew and approved of the contents of his 2012 will.
[423]Ibid [9.2.1]–[9.2.6].

Both Mr Tait and Mr McCulloch saw Bernard and Margaret several times in 2012. Mr McCulloch saw them several times in 2013. Mr Tait was a solicitor of very great expertise and experience in relation to wills and estates and Mr McCulloch was working under his supervision. The fact that neither of them had any inkling that Bernard was incapacitated is, in itself, a strong indication that Bernard had, at least, sufficient cognitive ability to make a will during the relevant period.

As to the 2013 will in particular, it is true that, once again, Mr McCulloch could not recall all the specifics of the meetings. However, it is plain that he perceived no cause for concern at that time. That in itself provides significant support for the proposition that Bernard had sufficient capacity to make the 2013 will and that he knew and understood its terms (which had been explained to him). Appropriately, Mr McCulloch later formed a different view about the position in May 2014.

Assets not complex

Marina’s counsel does not suggest that the Jansens’ assets as at 2012 or 2013 were complex, extensive or unusual. It seems that the Jansens possessed no more than some company shares (which both of them had taken a particular interest in for many years), a home held in joint names that was subject to a bank mortgage and perhaps some cash.

Wills not complex

It is true that the trust provisions in the 2012 and 2013 wills extended the length of those documents. But, as mentioned above, the substance and effect of the trust provisions was fully explained to the Jansens, including Bernard, by their solicitors; and, on the authorities referred to above, that was enough.

The wills made bequests to family members and, in 2013, to certain familiar charities. Bernard know the members of his family. In my view, he could evaluate the relevant claims on his bounty.

The relationship between Bernard and Margaret

In the second last paragraph of her closing written submissions, counsel for Marina says:

It is submitted that the family history provided by Marina in relation to the role that her mother played in the marriage, is further illustrative of the tendency for Mrs Jansen to take control of these matters, on behalf of herself and her husband, with her husband simply taking a backstep. Whilst it is accepted that couples will often rely on each other for such matters, it is still incumbent on the practitioner to ensure that even if there is common ground between the couples as to their succession planning, that that is indeed what each one of them wants for themselves.

I see this case a little differently. Bernard and Margaret were a “great team”. As Marina said in her evidence, they played to their strengths. In 2012 and 2013, Bernard Jansen may well have continued to “take a back step” to Margaret and may well have allowed Margaret, once again, to take the lead in an aspect of their legal and financial affairs, namely their mutual estate planning. If so, he was doing what he wanted for himself. If so, it would matter not whether his solicitors duly ascertained that information for themselves. If so, it would not mean that he lacked testamentary capacity or did not know or approve the terms of his and Margaret’s mutual wills.[424]
[424]See and compare Tobin v Ezekiel [2011] NSWSC 81, [90] (Brereton J); affirmed Tobin v Ezekiel [2012] NSWCA 285.

Conclusion

As indicated above, I am satisfied, on all of the evidence before the Court, that Bernard Jansen had testamentary capacity for both the 2012 and 2013 wills and that he knew and approved of the contents of both of them.

Counsel are invited to submit to the Court, within 14 days, their proposals for the terms of the orders that should be made to dispose of these proceedings, including in relation to costs.

[2023] VSC 161

31 March 2023 (Revised 3 April 2023)