In the Matter of the Will and Estate of Joyce Helen Greer, deceased

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 21599

IN THE MATTER of the Will and Estate of JOYCE HELEN GREER, deceased

NEIL ROBERT CATHELS AND ANDREW GREER (as executors of the estate of JOYCE HELEN GREER, deceased)	Plaintiffs
v
PETER JAMES GREER	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	16-18 April 2019
DATE OF JUDGMENT:	30 August 2019
CASE MAY BE CITED AS:	In the Matter of the Will and Estate of Joyce Helen Greer, deceased
MEDIUM NEUTRAL CITATION:	[2019] VSC 592

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WILLS — Application for grant of probate of will — Alleged lack of testamentary capacity — Change of will disinheriting son — Disapproval of son’s relationship — Medical evidence — Finding of testamentary capacity — Probate of will granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Collins QC with Ms U Stanisich	DTCH Lawyers
For the Defendant	Mr R R Boaden	Carew Counsel

HIS HONOUR:

Introduction

The plaintiffs apply for probate of the 3 April 2015 will of the late Joyce Helen Greer, who died on 10 September 2017 aged 97. They are the executors of the will. Her husband, James Andrew Greer, died in 1986. Mrs Greer was survived by her two sons Andrew John Greer (Andrew), who is the second plaintiff, and Peter James Greer (Peter) who is the defendant. She was also survived by her three grandchildren (the grandchildren), who are the children of Andrew, and seven great grandchildren.

Peter contests the validity of the will on the grounds that his mother lacked testamentary capacity. He argued that the plaintiffs have failed to discharge their burden of proving that Mrs Greer had testamentary capacity to recognise claims on her bounty, and evaluate and discriminate amongst them when she made the will. He also argued that, if she did have that capacity, she did not exercise it when she made the 2015 will.

The parties informed me that there was no dispute about the essential facts and I will next set out the Agreed Facts contained in the Trial Summary and then additional facts that were established by the evidence.

Background
Agreed Facts as contained in the Trial Summary

The deceased, Joyce Helen Greer, was born on 10 June 1920 and died on 10 September 2017.

The deceased is survived by her two children:

(a) the defendant, Peter James Greer, born on 27 April 1948; and

(b) the second plaintiff, Andrew John Greer, born on 25 April 1950.

The assets of the estate are worth in excess of $8,000,000. The principal assets comprise:

(a) A residential property at… Mount Eliza, worth approximately $3,500,000;

(b) a loan of approximately $3,400,000 due from the Joyce Greer Family Trust;

(c) unpaid present entitlements of approximately $1,000,000 due from the Joyce Greer Family Trust; and

(d) a loan of approximately $500,000 due from Endless Vision Pty Ltd.

The will being propounded as the last valid will of the deceased is that dated 3 April 2015. The last will appoints the deceased’s son Andrew and her accountant, Mr Neil Cathels, the first plaintiff, as executors. The dispositions in this will are:

(a) a devise of the Mount Eliza property to the deceased’s grandchildren (they being the three children of Andrew Greer; Peter Greer has no children);

(b) a gift of the residue of the estate to Andrew Greer.

This will made no disposition whatsoever to Peter.

The penultimate will of the deceased is dated 1 April 2003. It appoints as executors Peter Greer and the deceased’s former solicitor. The principal dispositions in this will are:

(a) a devise of the Mount Eliza property to Peter (via a Testamentary Trust), the reason for which was expressed to be ‘in recognition of the care and attention given to me by my son Peter James Greer over many years’;

(b) a release of certain debts owed by Andrew to his parents;

(c) subject to certain provisions intended to broadly equalise the benefit to the two sons of inter vivos advances, a gift of the residue to Peter and Andrew in equal shares.

Peter contests the validity of the last will on the grounds that the deceased lacked testamentary capacity, and that she did not know and approve the contents of the last will.

Peter had lived with his mother for the whole of his adult life[1], and during her widowhood from 1986 until 2016, when (at the age of 68, when the deceased was 96) he moved out of her home to live with his new partner.
[1]Peter also lived in the United Kingdom for two and a half years.

Further background facts

I will next set out some further background facts which appeared not to be in dispute and which give additional context to Mrs Greer’s decision to make a new will.

The Greer family business, Greer & Ashburner, later known as Greer Industries, was established in Melbourne over a hundred years ago. Its operations included the manufacture and supply of shop fitting equipment and homeware products.

Peter is two years older than Andrew. Peter lived in the family homes at Toorak and later at Mount Eliza until 2016, save for a period of two and a half years when he lived in England.

In 1972 Andrew, having partially completed a business course at RMIT, commenced fulltime work in the business, having previously worked there as a teenager. Between 1971 and 1973 Peter, having by then completed his engineering studies at RMIT, worked in the steel business in the United Kingdom to gain experience. Peter then returned to Australia and also commenced work in the family business. Peter worked in the factory office while Andrew worked in sales. Peter and Andrew received similar remuneration including salary, benefits and significant distributions from family trusts.

After her children were born, Mrs Greer worked at home caring for her husband and two sons.

Peter lived with his parents in their home in Toorak. Andrew also lived with his parents until he married in 1978. Andrew’s father loaned him $65,000 to purchase his first home, which he repaid, but otherwise he was financially independent from his parents. When Andrew purchased a second home, he obtained a payment from his loan account by arrangement with his father.[2]
[2]Plaintiffs’ Exhibit E, affidavit of Andrew Greer sworn 9 April 2019, [5].

In 1979 James Greer was diagnosed with cancer, and his health began to fail, so the sons’ roles in the business became more significant.

After Mr Greer died in May 1986, Mrs Greer, who was then 66, joined the Board of the family business and took an active interest in its affairs.

Peter continued to live at home while working full time, providing some assistance in home maintenance, gardening, shopping and some household duties. Peter said that he was the carer for his mother after his father’s death and the evidence established that, at the least, he provided companionship to his mother and supported her as she grew older.

Disagreements arose as to the direction of the business and Andrew resigned as a director in 2002 and received his superannuation. Peter and Mrs Greer then set about selling the business and that occurred in 2002 or 2003.

Andrew was paid $150,000 at about the time of the sale when he signed a restraint of trade clause. The restraint had a significant impact on him, as he intended to commence a business and the restraint prevented him doing that. In addition, Mrs Greer paid $14,500 for accountants to prepare a business plan for Andrew’s new business. The payment of compensation for the restraint of trade clause strained relations between Mrs Greer and Andrew. He thought that she blamed him for the loss of Greer Industries. Andrew said that after the business was sold his relationship with Mrs Greer was good, although feisty at times. They did not meet much, and he suggested that was because she did not want his children dirtying her house, which was kept very clean. So on occasions he and his wife invited Mrs Greer and Peter to come over to their home.

Although there was some differences between Peter’s and Andrew’s evidence, it seems that Mrs Greer had limited contact with Andrew and his family in the decade between 2003 and 2013 and that they were estranged.

In 2001, Peter lent $3.85 million to the business to keep it afloat. After the sale of the business and payment of other debts, there was no surplus for distribution or for repayment of Peter’s loan. However, the business had retained a property at Coolaroo, which was sold in October 2003 for $5.3m, which was paid to Peter.

In October 2002, Mrs Greer revoked her power of attorney which appointed both Andrew and Peter as attorneys and made a new power of attorney appointing Peter as the sole attorney. The dispute also prompted Mrs Greer to make a new will in April 2003, the penultimate will.

At the end of the restraint period, Andrew began operating his own business, Stainless Steel Wire & Mesh (SSW&M). He did not receive any financial assistance from his parents, but worked hard to establish the business, which continues to operate, with Andrew’s two daughters currently working in it.

Move to Mount Eliza

After the sale of Greer Industries, Peter, aged 54, retired. He remained living with his mother in the Toorak home and at least to some degree was financially supported by her. As she aged and became frail Peter was her carer. Peter gave extensive evidence about his care for his mother, particularly after his father’s death in 1986, when in his view, she never returned to normal life. She recognised his care in the 2003 will.

Peter worked on the Toorak property, including repairing the roof. He said he did all the maintenance and cleaning around the home, mowed the lawns and did the shopping.

In 2003, Mrs Greer sold her Toorak home for $4.3 million. Some of the proceeds of sale were used to build a house on land at Mount Eliza that she had inherited and she and Peter moved into the new home in late 2003.

Peter’s care for Mrs Greer

When she moved to Mount Eliza Mrs Greer was 83 years of age, and had ceased driving. Thereafter, she depended on Peter to drive her to her appointments and engagements. He also paid the bills, and did the shopping and cleaning.

Peter and Mrs Greer shared an interest in history and went to functions together. They were both members of the local branch of the National Trust, the Liberal Party, the Mornington Peninsula Regional Gallery, the Mornington District Historical Society and the Ranelagh Residents’ Association.

Peter said that his mother would not allow people to come into her home and would not accept home help, gardeners or cleaners.

Andrew disputed that Peter had been his mother’s carer since their father’s death. He said that in fact Mrs Greer looked after Peter, doing all his cooking, ironing, gardening and cleaning until they moved to Mount Eliza. He disputed that Peter did any maintenance or cleaning of the Mount Eliza property. He said that Mrs Greer and Peter had a love–hate relationship, were always bickering and baited each other. While Mrs Greer kept the rooms that she used in Mount Eliza neat and tidy, Peter’s area was always a mess.

While Andrew disputed the extent of the support that Peter provided,[3] Andrew was not often present at the Mount Eliza home until 2013, so was unlikely to have had a complete picture of Peter’s care for their mother. It is clear that Peter and Mrs Greer lived in the Mount Eliza home without any external housekeeping or gardening assistance. Towards the end of her life she needed a walking frame and was dependent upon Peter to continue living in her home.
[3]Plaintiffs’ Exhibit E, affidavit of Andrew Greer sworn 9 April 2019.

Peter was single and not in a relationship until 2012. Mrs Greer apparently assumed that any provision of money to Peter would remain in the family.

Peter’s relationship with Celeste

In 2012, Peter commenced a relationship with Celeste. He was then aged 64 and had not previously been in a long term relationship.

It is necessary for the purposes of deciding this case to set out comments that Mrs Greer made about Celeste. In fairness to Celeste, it is appropriate to state, as the parties accepted, that the personally disparaging comments that Mrs Greer made about Celeste were not correct.

Mrs Greer was then aged 92 years old and did not like Celeste. She had always held strong views against Catholics, and Celeste had attended a Catholic school. She also considered that Celeste was a ‘gold-digger’ and a Labor supporter. Mrs Greer had always been a staunch Liberal Party supporter.

Mrs Greer’s relationship with Peter started to deteriorate, although they had bickered all their lives. Yet, they continued to live together, with Peter continuing to provide her care and she continuing to provide him with financial support.

Peter said that his mother made a new will in April 2015 because of her antipathy towards Celeste. This antipathy and other sentiments that she expressed against him were part of the foundation of his case that by April 2015 she could no longer evaluate and discriminate between the claims on her bounty.

Andrew said that the relationship between his mother and Peter significantly deteriorated by 2013, when he reconciled with her. He said that thereafter Mrs Greer complained about Peter’s terrible temper and that he often swore at her. On more than one occasion she said that he had been physical with her and she appeared quite frightened of him. She would ask him to ring when Peter was not likely to be at home.

Mrs Greer and Andrew reconcile

As stated, after 2002, contact between Mrs Greer and Andrew and his family was limited. From time to time his children wrote to her and he sent her birthday and Christmas cards. In 2013, he sent her a Christmas card writing that it would be nice to catch up. She contacted him in response and he visited her. They got on well and found that they had a lot in common and she was interested in how his business was doing. When he was leaving he said to her ‘I’m so sorry about everything that happened,’ and she burst into tears and expressed sorrow about the state of things for last ten years. They reconciled that day. He invited her and Peter to his home and commenced phoning her regularly. He said that he would ring his mother regularly to check on her well–being and that she would often ring him when Peter was out so they could talk. Andrew and his wife, Leanne, brought her home–cooked meals that she could reheat and flowers from their garden. His mother would ring and thank her.

Mrs Greer’s relationship with Peter deteriorates

As previously described, Mrs Greer and Peter’s relationship had deteriorated by this point. Mrs Greer did not approve of his relationship with Celeste.

Mrs Greer’s reaction to Celeste and to Peter’s relationship with her is described in detail by Peter’s evidence and included the following matters. Mrs Greer said that Celeste was an ‘inappropriate choice’ for Peter.[4] She was unhappy that Peter had formed a relationship with a Catholic, even though she was told that Celeste did not consider herself as such. She had a deep dislike of Catholics. Mrs Greer concluded, because Celeste and her former husband had operated a hotel in Lyon, that Celeste was a French prostitute, although she was born in Australia, and Mrs Greer frequently so described her to acquaintances and even strangers. She was rude to Celeste. Because Celeste lived in Seaford, Mrs Greer concluded that she supported the Labor Party and refused to accept that Celeste had little interest in politics. She drew on stereotypes when assessing people. From the commencement of Peter’s relationship with Celeste, Mrs Greer began to complain to friends and acquaintances that Peter was lazy and did nothing for her. This was despite the fact that Peter remained responsible for maintaining the Mount Eliza house and garden, and Mrs Greer would not allow external help to be engaged. Peter used to take the home-delivered newspaper to his mother every day. When he moved out, he suggested to her that he change the arrangement and have the paper delivered to his new address and then he would bring it to her. She refused this suggestion, saying that there was no way that she could possibly touch a newspaper that might have been handled by Celeste, a Catholic. She complained about trivial matters, such as the size of berries and bananas that Peter had purchased. The food which Peter brought her was never right, the bananas were the wrong length, and the coffee he made was too cool, or lacked sufficient froth. On one occasion, Mrs Greer destroyed Peter’s National Trust lecture notes about the history of British sterling silver. She would not pass on messages that Celeste had telephoned. She discontinued the earlier practice of Peter being invited in for the last five minutes of each consultation she had with Dr Karamesinis, her general practitioner.
[4]Plaintiffs’ Court Book, 181 [26] (‘CB’).

After February 2016, when Peter moved out of the Mount Eliza house, her attitude hardened further, despite him still spending hours every day with her, and continuing to take her to her medical and social engagements.

The rental home to which Peter initially moved was less than two minutes’ drive away from his mother’s home. After 12 months he purchased a cliff top property in the same street for $5.3 million and moved there with Celeste. He still visited his mother at least once a day to do chores, continued to drive her to her medical appointments, did her shopping and managed her finances. He remained the first person whom she would call if she needed assistance. For example, only a fortnight before she died she fell in the shower and called on her MePac alarm. Peter was alerted, attended immediately, and arranged for an ambulance to come for her.

Friends’ evidence

Four friends of Mrs Greer - Adrienne Herring, Paul Harvey, Dawn Fisher, and Caroline Weber - gave similar evidence about the changes in her behaviour, which they put as occurring at the time Peter first began to spend time with Celeste. However, the events they described mainly occurred after Mrs Greer made her second will. They said that she no longer had a good word to say about Peter, and would disparage him and Celeste. She complained that he did not clear up at home and never contributed, whereas in the past she had only spoken of him positively. Mrs Greer became embarrassing in company, saying bad things about Peter to anyone who would listen, and people began to avoid her. She complained that Celeste was taking Peter away from her. When Peter moved out she became very vocal and quite obsessed with her criticisms of him. She made random phone calls venting her frustrations, saying that Peter was neglecting her. When asked about her health Mrs Greer would say she was good for her age and then go into a long dissertation about Peter and how displeased she was with him.

Mr Rodney Paynter, who with his wife were friends of Mrs Greer, gave evidence as part of the plaintiffs’ case. He said that his wife had been raised a Catholic but that that did not appear to hinder their friendship with Mrs Greer. They visited Mrs Greer for lunch twice, but the visits stopped abruptly and she told them that Peter did not want any people in the house. Mrs Greer continued to talk to them by telephone over many months, and often said that she felt like a prisoner in her own home as Peter was not willing to drive her, a fact which Peter denied. Her attitude to Peter had changed and was similar to her attitude to Andrew in the early 2000s. However, despite these incidents, Mr Paynter said that Mrs Greer did not talk about Peter a huge amount. While she complained about Peter in telephone discussions, she did not appear obsessive. They last visited her in July 2017, when Peter was not at home, and found that while she was using a walking frame she was very sharp of mind.

The estate

Mrs Greer left a net estate valued for probate purposes at $8,648,246.39. At the date of her death, it largely comprised of her Mount Eliza home valued at $3,650,000.00, $4,426,879.00 owed to her by the Joyce Greer Family and shares in Endless Vision Pty Ltd, an investment company of which Mrs Greer was the sole shareholder, worth $500,956.00.

On the advice of Mr Neil Cathels, Mrs Greer’s trusted accountant, Peter had arranged for a trust to be established known as the Joyce Greer Family Trust (the Trust) in 2004, to which her assets other than the house were transferred. She and Peter were the directors of the trustee company. The Trust consisted of substantial assets. The primary beneficiaries of the Trust were Mrs Greer and her two sons.

Peter and Andrew’s assets

In 2014, Peter’s superannuation and other assets were worth about $13.5M, made up of superannuation of $10,050,235, cash of $369,741 and listed shares of $3,087,403.

As at 20 March 2019, the combined assets of Andrew and his wife, Leanne, were worth some $7.4 million.[5]
[5]Plaintiffs’ Exhibit F, Andrew Greer: summary of assets and liabilities as at 20 March 2019; Plaintiffs’ Exhibit G, Leanne Greer: summary of assets and liabilities as at 20 March 2019.

Andrew presented evidence showing that Peter had received substantial distributions of income from the family trust which consisted of Mrs Greer’s assets. These distributions totalled $1,882,059. In 2011, Peter received distributions of $1.7m from the Trust, and later received further distributions of $114,125 in 2013 and $67,934 in 2014. In 2014, $60,000 was paid to Endless Vision Pty Ltd. Mrs Greer’s entitlements remained in the Trust as unpaid trust distributions in those years. Mrs Greer’s loans to the Trust and unpaid distributions are now payable to her estate by the Trust.

Mrs Greer was aware that Andrew had considerably fewer assets and wealth than Peter, who had substantial wealth, derived from his salary and distributions from family trusts. Until 2002, Andrew received similar remuneration and distributions. Andrew had a family to support and a home to provide.

The making of the 2015 or last will

In 2015, when aged 93, Mrs Greer decided to make a new will. She rang Mr Cathels, who asked her to write out her instructions. She did so in a handwritten note dated 8 March 2015 and gave it to Andrew when he visited that day, and asked him to send it to Mr Cathels.

The note read:

Dear Neil please prepare my Will to show the following:
1.        House to go to grandchildren for education of great grandchildren
2.        Contents of house to Andrew Greer
3.        Cash and shares to Andrew Greer
I do not wish to leave anything to Peter Greer.
Joyce Greer
8/3/15[6]

[6]CB 59.

Mr Cathels arranged for an independent solicitor, to whom he referred work, to prepare the will. The solicitor, Bruce Cook, had no connections with the family prior to making the will. He has been an accredited Law Institute of Victoria Wills & Estates Specialist since 1994, with over 32 years of experience. He has prepared more than 3000 wills and has dealt particularly with large estates.

Mr Cathels informed Mr Cook that Mrs Greer was aged 93 and was very concerned to ensure that her son Peter, with whom she lived, was not to discover that she wanted to prepare a new will. He was not to telephone her home, lest Peter answer the phone and realise that she was talking to a lawyer.

Mr Cook knew that Mrs Greer wanted to exclude Peter from the will, but said that that fact alone, of an elderly client leaving a child out of a will, did not ‘cause alarm bells to ring’ where there were good reasons for so doing.[7] He said that he had prepared thousands of wills, takes instructions almost daily and that:

[O]ne of the greatest concerns that testators have, particularly where there’s money, is that they don’t want their children to lose the money in the Family Court.[8]

[7]Transcript of Proceedings, in the Matter of the Estate of Joyce Helen Greer (Supreme Court of Victoria, S PRB 2017 21599, Ginnane J, 16-18 April 2019), 50-51 (‘T’).

[8]T 61.16-20.

Mr Cook prepared a will in accordance with the instructions Mr Cathels had given him, and together with Mr Cathels called on Mrs Greer at her Mount Eliza home on Good Friday 3 April 2015, a day chosen because they knew Peter was away over Easter. After initial conversation Mr Cook asked Andrew to leave the room and he did so.

Mr Cook spoke with Mrs Greer for about 90 minutes, to verify her instructions and to satisfy himself that she had testamentary capacity. He stated that Mrs Greer’s conversation ‘gave no indication that she was anything but capable’, that she ‘knew what a will was and its effect’, and that he was ‘impressed with how much’ she knew about her assets.[9] He described her as ‘very sharp’.[10] They talked about her family, her children and grandchildren. They talked about the fact that she was proposing to cut Peter out of the will, and she said that Peter had his own significant wealth and that he had received substantial funds from the family. Mrs Greer knew the extent of Peter's wealth and that Andrew had considerably less than him. She also told him about the relationship between Peter and his partner Celeste, who she thought was in a relationship with Peter for his money, and said that she did not want Celeste to end up with the family money. But Mr Cook said that she did not appear hysterical or obsessed about that matter. They talked about possible challenges to the will if she cut Peter out of it.
[9]CB 64 [7]-[9].
[10]T 55.8; CB 65 [11].

Since Mr Cook was satisfied of Mrs Greer’s capacity, that she knew what she wanted to do, and that her instructions accorded with the will that had been prepared in advance, he took her through it and she then signed it in his and Mr Cathels’ presence. She was adamant that Peter not find out that she was changing her will and so asked Mr Cook to send his account to Mr Cathels.

Mr Cook hand wrote the following attendance notes of the meeting on 3 April 2015:

SEND NOTHING TO HOUSE
Meeting with Joyce Helen Greer - 3 April 2015
NO TELEPHONE
Present: Joyce, Me, Neil
1. Family:
Peter James Greer and Andrew James Greer
Victoria, Amanda and James

2.
(a) [The property]
(b) Contents of house
(c) Shares in Spangrove Pty Ltd – Trustee of Joyce Greer Family Trust
Endless Vision Pty Ltd – has entitlements from Joyce Greer Family Trust

(d) Owed money from the family trust
(e) Also owns some shares

Please do not send anything to the house including phone calls
Please send Account to Neil
3. Will – distribute your assets to whomever you wish to receive them
4. Born 10/06/20
Now 94, will be 95 this year
Went to St Catherine’s

5. Doctor is Andrew Karamesinis 118 Mount Eliza Way, Mount Eliza.
Tell him Private & confidential: Not to be discussed with Peter Greer!![11]

[11]CB 81.

On 1 November 2015, Mrs Greer wrote the following handwritten note:

This is to say Celeste …is no means (sic) to come to my funeral (Joyce Helen Greer) nor are her relations or friends also none of her relations and friend to my wake after.
J H Greer
1/11/15[12]

[12]CB 197.

Peter found out about the 2015 will soon after his mother’s death.

Departures from the existing will

The Mount Eliza home, which under the terms of the 2003 will had been given to Peter in recognition of the care and attention which he had given to his mother over many years, was now to be given to Mrs Greer’s grandchildren for the benefit of her great-grandchildren’s education. Mrs Greer took placed importance on the value of education. Everything else was given to Andrew. The residue, which had previously been given to Peter and Andrew in equal shares, was now given solely to Andrew. These changes ‘cut Peter out of the will’.[13]
[13]CB 64 [10].

Medical evidence
Dr Andrew Karamesinis - Mrs Greer’s general practitioner

Mr Cook, out of prudence given Mrs Greer’s age, advised that a medical report be arranged to confirm her capacity to make the new will.

On 21 April 2015, 18 days after Mrs Greer made the new will, Mr Cook wrote to Dr Andrew Karamesinis, her longstanding general practitioner, requesting an opinion on her capacity to make a will. He wrote that:

Capacity
The law requires that a will maker must:
1.understand the nature, extent and value of the property which she is disposing of by making a will;
2.be able to demonstrate a comprehension and an appreciation of the claims on her bounty and the nature and basis of those claims;
3.be able to discriminate and evaluate the competing claims on her estate; and
4.be aware of and appreciate the significance of signing her will.

Confidentiality
Joyce wishes to ensure her recent making of a will is kept strictly confidential and has specifically asked that this not be mentioned to her son Peter, who brings her to your practice, and that nothing be sent to her home address.
Please acknowledge receipt of this letter by email to the address below and we will arrange for Joyce to attend your practice.
Please forward your opinion to us together with your account for payment.
If you have any questions please do not hesitate to contact the writer.[14]

[14]CB 78.

Dr Karamesinis gave evidence as part of the plaintiffs’ case. He was Mrs Greer’s treating doctor for eight years until her death and had seen her on 49 occasions. He is a Specialist General Practitioner with 29 years of experience, including ‘a lot of nursing home work’.[15] He saw her frequently both before and after the date of the will. He also had access to the notes of other doctors from his clinic, who had seen Mrs Greer on 25 further occasions.
[15]T 74.

Before giving oral evidence at the trial, Dr Karamesinis had read the reports of Dr Gleason and Professor von Hippel, which are referred to below, and maintained his opinion formed in 2015 and expressed in his affidavit that Mrs Greer had testamentary capacity.

On 22 April 2015, Mrs Greer attended Dr Karamesinis. He asked her why she had come to see him, and she replied that she had come at Mr Cook’s request as she wanted to change her will. She told him that he was sworn to secrecy and could not tell her son Peter about the changes to her will. She told him that Peter would be distressed at her will changes and that was why she did not want him to know about them at this stage. She told him that Peter had no need for her money, as he had lived at her expense for many years. Dr Karamesinis told her that he was bound by doctor-patient confidentiality and could not give anyone any information without her consent.

Dr Karamesinis concluded that Mrs Greer had testamentary capacity. He had available two Mini-Mental State Examination (‘MMSE’) and two prior Geriatric Depression Scale tests carried out by his practice, one of each of which had performed the previous month. On 22 April he carried out a further MMSE in which Mrs Greer scored 29 out of 30, a score which did not indicate cognitive impairment. Although he accepted in cross-examination that this was not the only test for testamentary capacity, Dr Karamesinis had regard to the fact that Mrs Greer had repeatedly scored very well on MMSE tests and, more importantly, that she was able to plan through a number of complex steps in the course of making the changes to her will. He sent the following email to Mr Cook later on 22 April 2015:

Further to your letter I can confirm that Mrs Joyce Greer attended today and I assessed her mental state. I found her to be of sound mind and to have testamentary capacity.
This is supported by a recent full assessment carried out at my practice in March 2015, as well as an independent assessment by the Mount Eliza Aged Care Assessment Team on April 1^st 2015.[16]
[16]CB 77.

The ACAS Report

Dr Karamesinis also had an Aged Care Assessment Service (‘ACAS’) report concerning Mrs Greer prepared by Peninsula Health on 1 April 2015, two days prior to the making of her will. An ACAS report is prepared to assess a person’s physical and mental capacity and their care needs. Mrs Greer had signed an application for the report and agreed to apply for respite care and permanent care for future planning purposes. The ACAS report stated that she hoped that such care would not be required but agreed, given her age and difficulty with mobility at times, that it was an important step to take.

The Report described Mrs Greer as a ‘good historian and fiercely independent’ and it was noted that ‘No cognitive concerns have been identified’.[17] Some physical issues were identified and she was assessed as having low care needs. There is nothing to suggest that Mrs Greer mentioned Peter’s relationship with Celeste. The ACAS Report stated:
[17]CB 164-165.

Relevant Social History:
Mrs Greer is a widowed lady living in her own home in Mt Eliza. Her son Peter is her primary carer and living in her home.
…
Functional and Activity Profile:
Mobility: Mobilises unaided at times inside of the home. Uses a single point stick on other occasions inside and out. Reports limited endurance and difficulty standing in the one spot due to restriction in leg mobility. Able to walk around 50m. Has remained independent with all functional transfers. Able to use stairs within the home at times, although not often. Bedroom and living areas on the same floor. Recently referred to Dom OT and awaits review. No recent falls have been reported. Ramp to front door in place.
Personal care: Independent with showering and dressing tasks. Utilises a hand held hose and hand rails. Stands throughout. Independent with managing medication needs – only on minimal prescribed medications. Continent of bowel and bladder. Suffers from urinary frequency, particularly at night. No continence aids required.
Domestic and Community: Son attends to most domestic and community tasks. Mrs Greer can independently attend to basic meal preparation (chopping/preparing vegetables etc). Main cooking is attended by son. Shopping and transport needs attended by son. Mrs Greer likes to be socially active and often eats out for lunch.
…
Summary:
…She has remained independent with personal care needs and enjoys assisting her son Peter, where able, with some light domestic tasks. Peter attends to all shopping and transport needs his mother requires.[18]

[18]CB 164-165.

The recommendations of the assessment were: ‘Respite Care (Low) and Permanent Residential Care’.[19]
[19]CB 165.

Peter criticised the ACAS assessment. He was present during the testing and assisted her to answer some of the questions. He knew that his mother did not want to move into a nursing home, and he did his best to convey that they were able to manage well with him attending every day to help her. He did not mention her increasingly strange behaviour. In relation to the ACAS report’s observation that ‘Mrs Greer likes to be socially active and often eats out for lunch’,[20] he observed that:

…Going to restaurants or cafes had become increasingly difficult as my mother would engage inappropriately with other patrons.[21]

[20]CB 164.

[21]CB 189 [76].

He also disagreed with its statements that his mother was able to use the stairs in the house at times, or that she enjoyed assisting him with some light domestic tasks. He said that he ‘saw only basic cognitive tests undertaken on the day of the assessment, it was more of a ‘tick-box’ exercise’.[22]
[22]CB 189.

On 29 April 2015, after Mrs Greer’s visit to Dr Karamesinis, Mr Cook wrote to Mr Cathels that:

On instructions from our client Joyce Greer we enclose a copy of her will together with our account for payment.
We note that Joyce is very concerned to ensure that no information concerning her will is forwarded to her at her home address.
We confirm we have been advised by Dr A Karamesinis that he attended Joyce on 22 April 2015 and found her to be of sound mind and have testamentary capacity. He further advises his view is supported by a full assessment carried out at his practice in March 2015, as well as an independent assessment by the Mount Eliza Aged Care Assessment Team on April 1, 2015.[23]

[23]CB 73.

Mrs Greer had no significant health problems until February 2016, when she had a minor heart attack. From December 2016 her health began to slowly deteriorate.[24]
[24]CB 156 [8], [10].

The plaintiffs and the defendant each called expert medical evidence – the plaintiffs called Dr Andrew Gleason and the defendant called Professor von Hippel, neither of whom had met Mrs Greer.

Dr Andrew Gleason

Dr Andrew Gleason, a Specialist Medical Practitioner with experience in Old Age Psychiatry, gave expert evidence as part of the plaintiffs’ case. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. Since 2015, he has been employed as Consultant Old Age Psychiatrist at the Alfred Health Cognitive Decline and Memory Service and since 2016 has been Head of Aged Psychiatry Research at Alfred Health. A large proportion of his clinical work involved the assessment and management of older people with behavioural and/or cognitive symptoms.

He was instructed by the plaintiffs’ solicitors to prepare a report in response to the affidavit of Professor von Hippel and the contention that Mrs Greer might have suffered loss of executive functioning at the time that she made the 2015 will. He considered that she had the required capacity to make the new will, and said that some degree of executive impairment did not necessarily deprive a person of testamentary capacity. He considered that any post-mortem assessment of Mrs Greer’s capacity or impairment based on witness reports of her behavior alone was likely to be unreliable. He did not agree that any inhibitory losses she had suffered were of sufficient magnitude to have impinged on her decision making when giving instructions for the new will. He considered it highly improbable that Mrs Greer’s cognitive ability was so impaired that she was unable to evaluate and discriminate between the claims on her estate.

Dr Gleason noted that there was no record of any tests specifically designed to assess executive functioning having been administered to Mrs Greer. He said that there was general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if Mrs Greer had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity. Demonstrating that an individual is suffering from losses in executive functioning requires a detailed clinical assessment, including the administration of specific tools or tests designed by appropriately qualified medical practitioners to assess cognition. Behavioural changes in older individuals can have many causes.

Dr Gleason did not agree with Professor von Hippel’s report that Mrs Greer was likely to have suffered significant losses in inhibitory ability which would have impacted on her testamentary capacity. He said that behavioral changes could have a number of causes including a neurocognitive disorder, such as Alzheimer’s, executive dysfunction due to aging, or emotional responses to psychosocial stressors.

In Dr Gleason’s clinical experience, it is not uncommon for an individual with behavioural change, which is suspected of being caused by cognitive impairment, to be found to be cognitively intact after a detailed assessment is completed, which may reveal the changes to be due to factors other than impaired cognition. He said that a diagnosis of suspected executive impairment made post-mortem based on informants’ reports alone, without supporting evidence from an ante-mortem clinical assessment or other documented medical history, was likely to be unreliable. He considered that had Mrs Greer been assessed during her lifetime by a medical specialist or neuropsychologist about the cause of her reported behavioural changes, there was a reasonable possibility that the clinician would have concluded that these changes were due to a cause or causes other than a loss in executive functioning.

He also noted that there was no evidence of Mrs Greer having any executive impairment prior to the commencement of Peter’s relationship with Celeste and therefore executive impairment was less likely to be the cause of any behavior change. However, he did not rule it out entirely, as life stressors can at times unmask previously unnoticed cognitive changes. He noted that many reasons could be suggested for Mrs Greer’s behavioural changes, including that they were a normal reaction to her situation.

He noted that Mrs Greer’s changed behaviour was limited to particular topics, whereas if she had executive dysfunction, it would have extended more widely and included her planning and judgment. The fact that she had sufficient planning and judgment to make a secret new will showed that those abilities were not impaired. Likewise, her inhibition was sufficiently intact that her conversations with Dr Karamesinis and Mr Cook convinced them that she had testamentary capacity. She explained to Mr Cook her reasons for excluding Peter, whereas if she had had significant difficulties with response inhibition, she would likely have become side tracked or perhaps ranted during the 90 minute conference with him.

In cross-examination Dr Gleason agreed that the MMSE test did not definitely exclude the possibility of executive dysfunction. However, Mrs Greer scored in the higher range, well above average for her age, making a significant cognitive disorder much less likely.

Professor von Hippel

Professor von Hippel gave evidence as part of the defendant’s case. He was instructed by the defendant’s solicitors to prepare a report concerning the capacity of Mrs Greer at the time she made her last will.

He is a Professor of Psychology and prior Head of the School of Psychology at the University of Queensland. His doctorate from the University of Michigan and most of his professional research and studies have been focused on social cognition or the study of mental processes that underlie and enable proper social functioning and decision making. For the last 20 years he has conducted a great deal of research in the area of social functioning in older adults. He has lectured at leading universities and published over 100 scholarly articles, chapters and edited books in the area of social cognition.

Professor von Hippel explained that atrophy of the frontal lobes of the brain and loss of inhibitory ability are normal parts of the ageing process. A common consequence is diminished executive functions, including losses in the ability to inhibit unwanted information from entering and remaining in the person’s mind, and losses in the ability to inhibit unwanted actions. Inhibition of thought is necessary for making sound decisions, as irrelevant or unwanted information can disrupt decision making. Losses in inhibitory ability can lead to changes in social behaviour. Diminished inhibitory ability as a result of atrophy of the frontal lobes of the brain often occurs among people who are otherwise mentally sound and who may score in the normal range on the Mini-Mental Status Exam.

Professor von Hippel considered that Mrs Greer was likely to have suffered significant losses in inhibitory ability. Those losses were likely to have impinged on her decision making in giving instructions for her final will. He did not endeavour to find a cause for Mrs Greer’s behaviour, but found in the affidavits of Mrs Greer’s friends evidence of her off-target verbosity, socially inappropriate comments or behaviour in a public setting, increased reliance on stereotypes, and uncontrolled ruminative tendencies. Although his opinion was expressed on the incorrect assumption that by the time of the new will Peter had moved out of his mother’s home, he maintained his opinion that Mrs Greer’s dissatisfaction with Peter’s new relationship may have loomed large in her decision to cut Peter out of her will.

He considered that her increased socially inappropriate behaviour with age suggested that she was likely to have experienced losses in inhibitory ability, for example, when she called Celeste a French prostitute. However, he said that unless evidence emerges suggesting that Mrs Greer’s prejudices against Catholics and other groups became stronger in her later years, they could not be considered evidence of inhibitory losses.

In Professor von Hippel’s opinion, if Mrs Greer had suffered inhibitory loss when she made the new will, then it stemmed from Peter’s relationship with Celeste. Mrs Greer showed signs of off-target verbosity in her tendency to raise aspects of Peter’s behaviour that were unrelated to the topic of conversation. She had an apparent inability to stop herself thinking and talking about Peter’s relationship and his moving out of the house, conduct which suggested uncontrolled ruminative tendencies.

In cross-examination, Professor von Hippel accepted that the following factors that Mrs Greer mentioned were all relevant factors, proper for her to take into account in deciding to make a new will: her reconciliation with Andrew; her desire to support the education of her grandchildren; Peter’s greater wealth as compared with Andrew’s and the fact that Peter had lived at her expense, and had received substantial family funds; and her concern that family funds should not go to Celeste.

Professor von Hippel said that people with inhibitory losses may mask the ideas which they are no longer able to inhibit by justifying decisions or actions by reference to appropriate factors. This may especially occur if they are warned in advance of the significance of conversations, as when Mrs Greer met Mr Cook. As long as their disinhibitory problems are not massive, almost to the level of psychosis, people may control them. Professor von Hippel gave evidence that often, when a conversation with a person suffering inhibitory loss comes to an end, ‘suddenly out comes the disinhibition part’.[25] He said that that may have occurred when Dr Karamesinis reminded Mrs Greer that Peter had been caring for her and looking after her, and asked her why she had made a new will which cut Peter out. In his opinion, her answer was telling. She said that Peter had enough money and needed none of hers. Then, she added that ‘I need to make Peter suffer’.[26]
[25]T 200.
[26]T 212.

He explained that the consequences of inhibitory losses for judgment and decision making are twofold. First, the person affected finds it more difficult to weigh the relevant factors in their decisions and ignore the irrelevant ones. This problem becomes most evident when the decisions are complex and require weighing of factors and consequences from different domains. Second, inhibitory losses result in poorer decision making because the decision maker affected experiences more difficulty exercising self-control.

While it is impossible, post-mortem, to make a certain determination as to whether Mrs Greer suffered losses in executive functioning and inhibitory ability, Professor von Hippel concluded that in all four areas in which inhibitory losses manifest themselves in social functioning, Mrs Greer’s behaviour was consistent with that of a person experiencing a lack of inhibitory ability. He considered that she was likely to have suffered losses in that ability, and that those losses were of sufficient magnitude to have been likely to have impinged on her decision making about her will. As a consequence, the evidence suggests that the dissatisfaction she felt in 2015 loomed much larger in her decision making than it would have if her executive functions were intact, making it the primary basis of her decision rather than simply one of many factors to consider. He concluded that although Mrs Greer had the ability to recognise the relevant competing claims when making her will, she did not have the ability to evaluate and discriminate between the respective strengths of those claims because of her inability to inhibit her dissatisfaction with Peter’s relationship.

Whilst acknowledging that it could not be known with any certainty how Mrs Greer would have made her will if she was not suffering from inhibitory loss, Professor von Hippel considered that she had been making a new will in 2015 with intact executive functions, it would have been much closer in spirit to the 2003 will. Earlier in her life she would have easily had the capacity to consider the aid and companionship that Peter had provided her for many years. Loss of inhibitory ability might have compromised Mrs Greer’s ability to make decisions and might have led her to make a will that would not have seemed appropriate to her if she were in control of her faculties.

Submissions
The plaintiffs’ submissions

The plaintiffs submitted that probate should be granted of Mrs Greer’s last will of 3 April 2015 because the evidence established that she had testamentary capacity at that time.

As evidence of Mrs Greer’s testamentary capacity, the plaintiffs pointed to the circumstances in which the will was made under the guidance of Mr Cook, an experienced and independent solicitor. The will was executed in the presence of two independent witnesses and in the absence of all beneficiaries. Mrs Greer gave clear instructions to Mr Cook and rational reasons for her making the new will. Soon after, her treating doctor, Dr Karamesinis assessed her as having testamentary capacity.

The authors of a leading text have stated that:

…the evidence of those present when the deceased gave instructions for his will or at its execution (if they were not merely witnesses called into his presence for a few moments) is of considerable weight. This is particularly so where such persons were unprejudiced and where the court is satisfied that they took pains to assess the mental state of the deceased and where they give evidence of facts and matters which support their assessment.[27]

[27]John Ross Martyn and Nicholas Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet and Maxwell, 20^th ed, 2013), 195-196.

Mrs Greer did not make the new will as a spontaneous event, but carefully planned it. She made it three years after Peter’s relationship with Celeste commenced and 16 months after her reconciliation with Andrew.

The defendant’s criticisms of Mr Cook’s assistance in the making of the will were unjustified and did not affect the significance of his evidence about Mrs Greer’s capacity. The suggestion of a ‘cloak and dagger’ approach to confidentiality in making the new will overlooked that Mrs Greer requested that approach. She had reason to be concerned about Peter’s reaction if he learned of the new will. The criticism that Mr Cook failed to keep a more accurate note of his conference with Mrs Greer was without substance. Mr Cook agreed in cross-examination that the reasons Mrs Greer gave for excluding Peter were very important in assessing testamentary capacity and that he had not recorded them in his notes, but it was not put that his evidence of the matters discussed, which were not recorded in the notes, was unreliable or inaccurate. Mr Cook was not required to discuss with Mrs Greer alternatives such as providing Peter with a modest pecuniary legacy or a life interest. There was no evidence that Mrs Greer wanted to do that.

When Mrs Greer gave instructions for her new will, she had the perfect opportunity to reveal her uncontrolled thoughts regarding Peter and Celeste. However, Mr Cook’s evidence demonstrated that she spoke logically and rationally about her reasons for her new will and her exclusion of Peter. Accordingly, ‘There is no room, in those circumstances, to infer some other irrational reason’.[28]
[28]Perpetual Trustee v Baker [1999] NSWCA 244 at [35] (Cole AJA, with whom Giles JA and Brownie AJA agreed).

Dr Karamesinis’ evidence confirmed that Mrs Greer had testamentary capacity. This was supported by the independent evidence of Mrs Greer’s solicitor and accountant, and the ACAS assessment undertaken two days before the last will was executed. There was no medical history of cognitive impairment in any of Mrs Greer’s medical records. Her MMSE score was 29/30. Mrs Greer had no significant health problems other than minor ageing issues. She died two and a half years after making the last will from congestive cardiac failure, pulmonary hypertension and acute kidney injury.

Although not directly relevant to the question of Mrs Greer’s testamentary capacity, the plaintiffs submitted that the Court should find that Peter overstated matters and should not be treated as a reliable witness. He was reluctant to acknowledge the care and assistance that his mother provided to him. He also gave contradictory evidence concerning Mrs Greer’s ability to consider her financial investments. He was also reluctant to accept that that Mrs Greer valued private school education, probably because to do so would suggest that Mrs Greer had valid reasons for excluding Peter from the will. He suggested that Dr Karamesinis told him that in his consultation, Mrs Greer ‘…barely got over the line in terms of her capacity’.[29] Dr Karamesinis denied this assertion.
[29]CB 187, [67].

It is not remarkable that Mrs Greer’s testamentary wishes had changed by 2015 as her family circumstances had changed. When the penultimate will was made, Mrs Greer had recently become estranged from Andrew and the provision to him was reduced. Peter was single and there was no apparent risk that bequests to him would ultimately benefit a person who Mrs Greer disliked. By the time of the new will, Mrs Greer had reconciled with Andrew and his family. She was aware that Andrew had not received the significant assistance that Peter had. As a result of this assistance, Peter had significant wealth and no need of provision from Mrs Greer’s estate. In addition, Peter was in a relationship with a woman Mrs Greer disliked, who might ultimately benefit from Mrs Greer’s assets on Peter’s death if she left property to him. Peter had no children of his own and Mrs Greer did not want to see her family wealth passed to Celeste; she wanted her money to remain within the family. Mrs Greer wish to provide for Andrew and his family and not Peter in her last will was rational according to her own sense of what was just and proper. Her reasoning that Peter had already received enough might be considered harsh, but it can be understood and cannot be described as delusional. Mrs Greer had no moral obligation to make provision for Peter’s maintenance and support. Although Andrew was in a comfortable financial position, Mrs Greer was aware that he was not nearly as wealthy as Peter, and he had children and grandchildren to assist with their education.

It was not irrational for Mrs Greer to believe that Celeste’s interests lay in Peter’s wealth, even if this was not in fact true. Despite Mrs Greer’s words the description, there is no evidence that she had a deluded belief that Celeste was in fact a French prostitute rather than using this term to disparage her. Mrs Greer’s view of Celeste was also coloured by dislike of Catholics, which was a product of her age, circumstances and upbringing. But, despite her antipathy towards Celeste, and her criticisms of Peter, she maintained a relationship with him until her death.

Mrs Greer may have expected too much of Peter and may have judged him harshly or misinterpreted events. However, there are no grounds for finding that she was deluded or suffered from a disorder of the mind. Dr Karamesinis’ and Dr Gleason’s evidence was against that conclusion, and was to be preferred to Professor von Hippel’s. The behavior of Mrs Greer upon which Professor von Hippel relied appeared to occur after Peter’s departure from Mrs Greer’s home to live with Celeste in February 2016, 10 months after the new will was made. Professor von Hippel never met Mrs Greer and his report is of limited assistance and probative value in assessing her testamentary capacity in April 2015. Expert evidence based solely on witness statements and medical reports is of limited value.

Unlike Professor von Hippel, Dr Gleason and Karamesinis had significant experience in clinical assessment of elderly patients. Dr Karamesinis saw Mrs Greer on many occasions, so was in the position to assess the extent to which her condition had altered and whether her responses showed a lack of capacity. Dr Karamesinis’ opinion and evidence was not challenged in cross-examination.

The decision regarding whether the plaintiffs have established that Mrs Greer possessed testamentary capacity does not turn on a contest between the opinions of Dr Gleason and Professor von Hippel. Dr Gleason was firm in his opinion that the behaviour exhibited by Mrs Greer was probably not caused by executive dysfunction. He thought executive dysfunction was improbable because there can be many and varied causes for aberrant behaviour. The fact that the aberrant behaviour was displayed only after Peter’s relationship with Celeste had commenced meant that it was more likely the product of Mrs Greer’s emotional fear and insecurity; although he conceded that underlying executive dysfunction may not become apparent until it is unmasked by stressful events.

The defendant’s submissions

The defendant submitted that the evidence established substantial doubts about Mrs Greer’s testamentary capacity and that the will of 3 April 2015 should not be admitted to probate. She knew Peter had some claim upon her bounty, and the exclusion of someone with that claim may be a sign of lack of capacity.

Peter contended that the prejudices Mrs Greer developed, and her socially inappropriate behaviour and conversation, raised doubts about whether in 2015 she could recognise and evaluate the claims of her family members upon her testamentary bounty. The complete exclusion of Peter from the 2015 will indicated that she did not evaluate his claim.

Peter had claims on his mother’s testamentary bounty because of his lifelong care of her. He and Andrew ran the family business after their father’s death, and it was the source of Mrs Greer’s and their wealth. Peter propped up the company by lending $3.85 million of his own funds. After the company was sold Peter assisted his mother in the management of her financial affairs and lived with and cared for her. As Mrs Greer grew older Peter assumed complete responsibility for her care and for their home and she became even more dependent upon him.

Mrs Greer ought to have considered these matters when deciding to revise her existing will. Her failure to make any bequest to Peter suggested that her judgment was so affected by unreason and prejudice that she lacked the mental capacity to comprehend his claim. While a testatrix is entitled to be idiosyncratic, unjust or unfair in making a will, the exclusion of persons with a claim upon the testatrix’s bounty may be evidence that her mind was not functioning as it ought.

Mrs Greer made a number of comments about Celeste, the most colourful being that she was a French prostitute. Peter did not suggest that Mrs Greer believed this, but this comment and others that Mrs Greer made about Celeste’s religion and politics, evidenced the strong animus that she developed against her.

Mrs Greer’s decision to make a new will was probably not the product of her evaluating Peter’s claim upon her bounty. Rather, the predominant reason was that set out in her handwritten note: ‘I do not wish to leave anything to Peter Greer’.[30] Even if one reason for making the new will was a re-evaluation of the respective claims of Peter and Andrew, she lacked the ability to evaluate Peter’s claims because of her overwhelming desire to make him suffer. As Mrs Greer said, ‘I need to make Peter suffer’.
[30]CB 59.

Dr Karamesinis’ evidence did not establish that Mrs Greer had the capacity to evaluate Peter’s claims. In order to find out whether Mrs Greer did have the capacity to evaluate and discriminate, he asked her why she had made a new will, reminding her of her debt to Peter for his care over many years. Her answer, that Peter had no need of her money, brushed aside Peter’s care for her. It did not show that Mrs Greer could evaluate and discriminate claims on her bounty. Dr Karamesinis’ report did not address her capacity to discriminate and evaluate. Instead it relied on her good MMSE score, which was a test designed to reveal whether she was still able to live in her own home with Peter’s assistance, and from the fact that Mrs Greer knew the will would cause him distress. Mrs Greer’s behaviour, the contents of the 2015 will, and the way in which it was made showed more than mere harsh judgment and undeserved treatment of Peter. They showed a lack of capacity to comprehend and evaluate his claims. Professor von Hippel’s evidence supported that conclusion, that with advancing age, the frontal lobes of the brain atrophy and affect the ability to inhibit unwanted information from disrupting decision making. Regrettably, there was no evidence that Mrs Greer’s testamentary capacity was tested and assessed in the way in which it ought to have been by her lawyer or by her general practitioner.

Mrs Greer’s inability to evaluate, discriminate, or weigh in balance, was also demonstrated by what she said to Dr Karamesinis a year after making the new will. During the course of her annual health care assessment on 15 April 2016, several months after Peter had moved to live with Celeste, she shared with Dr Karamesinis her view that ‘Peter should stay home, get rid of his partner and look after her’.[31] Dr Karamesinis noted that Mrs Greer had very fixed ideas and prejudices, and that her demands of Peter were unreasonable. Plainly, Mrs Greer felt overwhelmed and she was incapable of any rational response to Peter’s changed circumstances. This was consistent with her statement in the note to Mr Cathels ‘I do not wish to leave anything to Peter Greer’.[32]
[31]T 74-75.
[32]CB 59.

Mr Cook understood that Mrs Greer wanted to make a new will because Peter had received significant wealth from the family and so did not need her financial support and that Andrew had considerably less wealth than Peter. She also considered that Celeste was in a relationship with Peter for his money; and that anything that she left Peter would not remain in the family.

While these matters could have been taken into account with Peter’s personal claims being so self-evident, no weighing and evaluating the brothers’ claims could have led Mrs Greer to decide to disinherit Peter. The fact that she did so could only mean that she lacked the capacity to recognise and evaluate the claims upon her, or she could not bring her mind to the task of doing so.

The plaintiffs contended that the will was made by Mrs Greer ‘under the guidance of’ an experienced and independent solicitor. But no such guidance was given. Mrs Greer could have recognised Peter’s claims whilst also protecting part or all of his inheritance from passing to Celeste, but these options were not suggested to her.

Where testamentary capacity is in doubt, a solicitor should at the very least ask the testator questions to ascertain the testator’s basic understanding, to gain reasonable assurance regarding testamentary capacity. The solicitor has a duty to assist the person to make the will, by ensuring that they have considered the persons they ought as potential beneficiaries, and have evaluated those claims in deciding upon the terms of the will.[33] When an elderly person makes a new will which radically departs from the existing will, the reasons for doing so are of fundamental importance and should be recorded by the solicitor. Mr Cook’s file note did not record the reasons that he said that Mrs Greer gave him and it appears that he did not ask questions, or record any answers, which would demonstrate that Mrs Greer comprehended and appreciated the claims on her bounty, and was able to discriminate and evaluate those competing claims.
[33]Mekhail v Hana [2018] NSWSC 1452.

Because of the considerable doubt about whether Mrs Greer could recognise, and ‘evaluate and discriminate’ between the respective strength of the claims she would otherwise have considered, the Court should not be satisfied that the plaintiffs have discharged the burden of proof resting upon them.

Legal issue – proof of testamentary capacity

I will next consider the issue of the proof of testamentary capacity required for probate of a will to be granted.

The plaintiffs, the propounders of the will, have to establish that Mrs Greer possessed the mental capacity to recognise Peter’s claims upon her bounty, and had the mental capacity to balance those claims.[34] The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity.
[34]Bailey v Bailey (1924) 34 CLR 558 at 570-2 (Isaacs J; Gavan Duffy and Rich JJ concurring); Kantor v Vosahlo [2004] VSCA 235.

In Re Estate of Griffith (dec’d); Easter v Griffith[35], Gleeson CJ stated:

Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of the execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439.[36]

[35](1995) 217 ALR 284 (‘Re Griffith’) (Handley JA concurring; Kirby P dissenting).

[36]Ibid 292.

In Carr v Homersham,[37] Basten JA of the New South Wales Court of Appeal stated that:

To speak of there being a “doubt” as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, “a grave matter.” A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity.[38]

[37](2018) 97 NSWLR 328.

[38]Ibid at 339 (Basten JA, with whom Leeming JA agreed).

The freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’.[39] A person can make a valid will even if they do so as a result of capricious, frivolous, mean or even bad motives.[40] Before it can find that a testator lacked capacity, the Court must be convinced that the testator was not just acting out of capriciousness, albeit unreasonable, but was affected by a disorder of the mind.[41] The cases recognise that drawing the line between prejudice and antipathy on the one hand, and an inability to evaluate the calls on one’s bounty on the other hand, is not easy.[42] A parent is not incapacitated from making a will because she has formed an unduly harsh view of her child's character. But if the parent's misjudgement stems from an irrational aversion towards her child, amounting to a delusion, then the parent lacks testamentary capacity.[43]
[39]Re Griffith (1995) 217 ALR 284, 294 (Kirby P).
[40]Boughton and Marston v Knight (1873) LR 3 PD 64, 66.
[41]Re Griffith (1995) 217 ALR 284, 290.
[42]Gray v Hart [2012] NSWSC 1435 [341] (White J), citing Re Griffith (1995) 217 ALR 284, 290.
[43]Theobald on Wills (17^th ed 2010) [3.004].

In Re Griffith,[44] Gleeson CJ referred to the distinction between a ‘harsh, unreasonable judgment of character’ which is not, on that account alone, inconsistent with a sound disposing mind and ‘a morbid aberration’ which so affects a testatrix’s judgment of a person with a natural claim on her bounty as to warrant the conclusion that she lacked the capacity to make a valid will. In Re Griffith,[45] Gleeson CJ referred to the distinction between a ‘harsh, unreasonable judgment of character’ which is not, on that account alone, inconsistent with a sound disposing mind, and ‘a morbid aberration’, which so affects a testatrix’s judgment of a person with a natural claim on her bounty as to warrant the conclusion that she lacked the capacity to make a valid will. He said that there was a fundamental distinction between mere prejudice or antipathy, even unreasonable antipathy, and an antipathy arising from a disorder of the mind.[46]
[44](1995) 217 ALR 284.
[45](1995) 217 ALR 284.
[46]Ibid 290 (Handley JA agreeing).

In Di Cecco v Contini,[47] Whelan J, when deciding whether the testator was able to comprehend and appreciate the claims of his two sons, said that being harsh, unreasonable or unfair did not mean that a testator lacked capacity.[48] But if the testator’s value judgment was so extreme as to defy credibility, it might mean that the testator lacked testamentary capacity and was unable to consider and give effect to claims upon his or her bounty. His Honour distinguished between ‘an explicable but mistaken view on the one hand’ and ‘the kind of morbid aberration or delusion which precludes testamentary capacity on the other’.[49] He said:
[47][2004] VSC 211.
[48]Ibid [35].
[49]Ibid [37].

The testamentary capacity issue raised in this proceeding was not an issue of physical or mental impairment in a medical sense, or was not primarily so. It concerned, rather, the question of whether the testator was able to comprehend and appreciate the claims of his two surviving sons. The hearing substantially concerned the issue of whether the testator held views of his sons which were either based on demonstrably false delusions of fact or which were value judgments so extreme as to defy credibility.[50]
[50]Ibid [2].
…
Counsel for both the plaintiff and for the defendants relied on the judgment of Gleeson CJ in Re Estate of Griffith; Easter v Griffith.
The applicable principles to be drawn from that judgment appear to me to be the following:
(a)Where the evidence raises a doubt as to testamentary capacity there rests on the plaintiff the burden of satisfying the court that the testator had capacity at the relevant time. If following vigilant examination of the evidence the doubt remains substantial enough to preclude a belief that the testator was of sound mind, memory and understanding, probate will not be granted.
(b)It is essential that a testator understand the nature of the act and its effects and the extent of the property being disposed of. The testator must also be able to comprehend and appreciate the claims upon his or her bounty to which he or she ought to give effect.
(c)The power to dispose of one's assets by will is an important right and the court must be cautious; a finding that a testator lacked capacity is a grave matter.
(d)A testator will not lack capacity because he or she is harsh or unreasonable or unfair. On the other hand, a demonstrable delusion about some important and relevant fact or a value judgment so extreme as to defy credibility may mean a testator lacks testamentary capacity as he or she is unable to consider and give effect to claims upon his or her bounty.[51]
…

…relevant beliefs, even if strongly held, do not preclude testamentary capacity merely because they can be shown to be mistaken or unfair. There is a clear difference between an explicable but mistaken view on the one hand and the kind of morbid aberration or delusion which precludes testamentary capacity on the other…[52]

[51]Ibid [34]-[35].

[52]Ibid [37].

But viewing the testator’s dispositions as inofficious or eccentric does not by itself establish that the testator lacked testamentary capacity. As Bryson J stated in Romano v Romano:[53]

A person who is of sound mind, memory and understanding can make any testamentary disposition he wishes, no matter how inofficious or eccentric; but if dispositions are eccentric or do not recognise obvious claims, those facts may be relevant to capacity. Where a document is expressed and executed in circumstances of regularity the person propounding it is usually taken to have discharged the onus of proof of capacity; but all relevant facts in evidence must be taken together.[54]

[53][2003] NSWSC 436 affirmed on appeal: Romano v Romano [2004] NSWCA 37.

[54]Romano v Romano [2003] NSWSC 436, [12].

Analysis

The plaintiffs, propounders of the will of 3 April 2015, have to establish that Mrs Greer possessed testamentary capacity at the time it was made. This is because the defendant’s case, which I have summarised above, raised a doubt warranting investigation about Mrs Greer’s testamentary capacity.

In determining the issue of testamentary capacity, the Court can consider any relevant evidence, both expert medical and non-expert, and must form a common sense judgment on the whole of the evidence. Hodgson JA explained this process as follows:

The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.[55]

[55]Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [65] (Hodgson JA; Young JA and Bergin CJ in Eq agreeing).

I found the evidence of Dr Karamesinis particularly persuasive. He had been Mrs Greer’s general practitioner for eight years before her death and had seen her on 49 occasions. He continued to treat her after she made the new will until her death. He is a specialist general practitioner with 29 years of experience, including much nursing home work. He consulted with her 18 days after she made the will to assess her testamentary capacity. This assessment was undertaken only due to her age, and not because of any pre–existing concerns as to her capacity or behaviour. Until February 2016, Mrs Greer had no significant health problems.

Mrs Greer explained to Dr Karamesinis why she wanted to change her will, including that Peter had no need for more of her money, as he had lived at her expense for many years. She told Dr Karamesinis that the changes to her will would distress Peter, and so she did not want him to know about them at that stage. She planned the changes to her will, provided written instructions about them, understood their impact and arranged to have the will prepared and executed. Dr Karamesinis considered that she had testamentary capacity.

Dr Karamesinis carried out an MMSE, which is a screening test, in which she scored 29 out of 30, which did not indicate cognitive impairment. He had regard to the fact that she had scored well on that MMSE test. He also assessed her cognition using the MMSE and a Geriatric Depression Scale test on 27 February 2014, 3 March 2015, 12 April 2016 and 1 May 2017, and could find no evidence of dementia, cognitive impairment or depression.

Dr Karamesinis was aware of her statements that she was cutting Peter out of the will because she wanted to make him suffer, but still considered that she had testamentary capacity.

Dr Gleason, an experienced specialist in old-age psychiatry, also considered that Mrs Greer had testamentary capacity to make the new will. He considered that any behavioural changes that she had exhibited could have been caused by one of a number of factors, including a normal response to the life stressors that she was experiencing.

The Aged Care Assessment Service assessed her and found no evidence of cognitive concerns.

The defendant relied on the evidence of Professor von Hippel. However, as he acknowledged, he was not a clinician. His opinion that Mrs Greer may have had inhibitory deficits provides one possible explanation for her behaviour. But I consider that the opinion of her long standing general practitioner, Dr Karamesinis, as supported by Dr Gleason’s opinion, is to be preferred.

Mrs Greer’s statements that she wished to make Peter suffer raise questions about her testamentary capacity. But Dr Karamesinis and Dr Gleason concluded that she had testamentary capacity. So did Mr Cook, her solicitor, whose evidence I accept. While his notes of their conference were criticised, his oral evidence of her wishes was consistent with other evidence.

The totality of the evidence leads to the conclusion that the timing of Mrs Greer’s new will was not irrational, as the balance of her family relationships had changed significantly since she made her 2003 will. She had reconciled with Andrew, but her relationship with Peter had deteriorated. Peter had formed a relationship with Celeste, who Mrs Greer did not like. That relationship disrupted the pattern of Mrs Greer’s life in her last years.

Peter did have claims on Mrs Greer’s bounty. The fact that he resided in the family home for many years assisted her to remain there, which she desired. She recognized those claims in her 2003 will. But in deciding whether to include him in her 2015 will she was entitled to take into account the changed circumstances and that he had considerably more wealth and fewer responsibilities than Andrew. Part of Peter’s wealth had come from distributions from the family trust. From her perspective, she was entitled to be concerned that bequests to Peter might end up with Celeste. It is not uncommon or unique for a parent to disinherit a child because of their choice of partner. That action does not show a lack of testamentary capacity, or an inability to balance the claims which required consideration. Mrs Greer’s disinheritance of Peter was in circumstances where his assets were of the order of $14 million. While it might have been wise for Mrs Greer to make some bequest to him, she may have considered, in view of the size of his assets, that any modest bequest may have been seen as derisory. During the years that he was caring for his mother he received substantial distributions from the family trust and thereby from her assets. Mrs Greer was entitled to conclude that Peter had more than sufficient funds for his needs. She was also entitled to conclude that there was a risk that any money or assets left to Peter might find their way to Celeste. Mr Cook said that parents can be concerned about the effect of Family Court proceedings on the money that they leave their children. While Mrs Greer’s decision might be described as unfair to Peter, it had a rational basis and does not indicate that she lacked testamentary capacity.

Mrs Greer’s colourful comments about Celeste were inaccurate, and reflected her long held views about Catholics and Labor Party supporters. But the medical evidence did not suggest that those views established a lack of testamentary capacity. A testatrix is entitled to give effect to long held views, even if to use present day language they are politically incorrect and not widely held. As Gleeson CJ stated in Griffith’s Case:

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.[56]

[56](1995) 217 ALR 284, 291.

Mrs Greer’s criticisms of Peter made to friends and acquaintances as detailed in the friends’ evidence were considered by the medical experts, but Dr Karamesinis and Dr Gleason did not consider that they established a lack of testamentary capacity. Dr Karamesinis described her as an alert and orientated woman with mainly old fashioned values, who was aware that the changes to her will would cause distress to Peter. She was an elderly lady whose pattern of living and routines were affected by her son’s new relationship. Even before Celeste, her relationship with Peter was fraught from time to time, but this development heightened the tension. Mrs Greer’s comments about Celeste do not necessarily indicate a lack of testamentary capacity. I consider that they are equally explicable as representing her anger and stress at having her domestic arrangements disrupted so late in her life. The circumstance of a parent disliking or resenting their children’s choice of partner is not unique to this case.

The circumstances in 2015 were significantly different from those existing in 2003, when Mrs Greer made her previous will. She had become bitter with Peter because of his association with Celeste.[57]
[57]CB 231, [3].

There is no bright line between prejudice and antipathy and an inability to evaluate the calls on the testator’s bounty. But, based on Dr Karamesinis’ and Dr Gleason’s evidence, I find that Mrs Greer’s testamentary decisions were rationally based on the changed circumstances that followed her reconciliation with Andrew, Peter’s wealth and her dislike of the disruption caused by his relationship with Celeste. At the most, her behaviour might be described as idiosyncratic, but it does not demonstrate delusion or incapacity.

I do not accept that the evidence shows that Mrs Greer failed to weigh in the balance the claims upon her bounty. Rather than not considering Peter’s claims, the evidence suggests that she did consider them, but thought that he had sufficient wealth and that anything that she left him might end up with Celeste. Her outbursts that she needed to make Peter suffer are notable, but did not lead Dr Karamesinis to conclude that she lacked testamentary capacity. Those outbursts cannot obscure that she had rational reasons for excluding Peter from her will, even though she knew that that was likely to cause Peter distress. She had reasons to make a new will – circumstances had changed. She also wanted to ensure that some of her wealth passed to her great grandchildren to assist with their education.

Conclusion

I find that the plaintiffs have established that Mrs Greer had testamentary capacity when she made her new will on 3 April 2015. I order that, subject to any further requirements of the Registrar of Probates, probate of the will of Joyce Helen Greer, deceased, dated 3 April 2015 be granted to the plaintiffs, Neil Robert Cathels and Andrew Greer.

The proceeding is referred to the Registrar of Probates.

[2019] VSC 592

30 August 2019