Lim v Lim

Case •

[2023] NSWCA 84

•

01 May 2023

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lim v Lim [2023] NSWCA 84
Hearing dates: 3 November 2022
Date of orders: 1 May 2023
Decision date: 01 May 2023
Before: Bell CJ at [1]
Kirk JA at [2]
Griffiths AJA at [122]
Decision:

(1) Appeal allowed.

(2) The orders of the Supreme Court made on 14 April 2022 are set aside, save for the orders dealing with costs, and in lieu thereof:

(a) Declare that the original of the document dated 16 October 2019 in respect of which the Court did, on 28 September 2020, make a grant of probate in common form constitutes the last will and testament of the late Daisy Ut-Mui Lam.

(b) Order that a grant of probate of that will in solemn form be made to the defendant.

(3) The respondent is to pay the appellant’s costs of the appeal.

Catchwords:

SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Significant change in nature of will — Suggestion of hepatic encephalopathy — Dispute about deceased’s hearing capacity — Dispute about deceased’s ability to understand Mandarin

EVIDENCE — Standard of proof — Civil cases — Principle in Briginshaw v Briginshaw — Nature and strength of evidence required to establish a fact depends on nature of fact and on context in which fact sought to be proved — No general requirement of a higher degree of satisfaction in cases of contested probate

Legislation Cited:

Succession Act 2006 (NSW), Ch 3

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549

Briginshaw v Briginshaw (1938) 60 CLR 336

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Croft v Sanders [2019] NSWCA 303

d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333

Dickman v Holley [2013] NSWSC 18

Kantor v Vosahlo [2004] VSCA 235

King v Hudson [2009] NSWSC 1013

Lewis v Lewis (2021) 105 NSWLR 487

Mekhail v Hana [2019] NSWCA 197

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69

Re Estate of Griffith (1995) 217 ALR 284

Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Worth v Clasohm (1952) 86 CLR 439

Category:Principal judgment
Parties:

Sony Ton Yew Lim (Appellant)

Tong Boon Lim (Respondent)
Representation:

Counsel:

D M Flaherty (Appellant)
D C Price and M Thompson (Respondent)

Solicitors:

FKG Law (incorporating Mullick Law) (Appellant)
Glass Goodwin Solicitors (Respondent)
File Number(s): 2022/00134398
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity
Citation:

Lim v Lim [2022] NSWSC 454

Date of Decision:
14 April 2022
Before:
Hallen J
File Number(s):
2020/00334081

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mrs Daisy Lam died in November 2019, a day before her 90th birthday. She had executed a will a month before her death at a conference with a solicitor, Mr Lee, assisted by a Mandarin-English interpreter. Mrs Lam’s first language was Hainanese. Three of her children attended the conference (but were outside when instructions were taken), and, at Mrs Lam’s request, the proposed disposition in the will was explained to those children before she executed it. The will left her estate (after payment of debts etc) in equal shares to four of her children. A previous will, made in 2011, had made significantly greater provision for one of her children, Boon (the respondent). Neither will made provision for an estranged daughter, Rose. Boon was one of the children to whom the will was explained, but he made no protest as to its contents.

The 2019 will was admitted to probate in common form but was challenged by Boon. No family provision claim was made. In a hearing before Hallen J, Boon contended that Ms Lam lacked testamentary capacity, and that she did not know or approve of the contents of the will. He pointed to an alleged medical condition said to have affected her cognition, to language difficulties, and to hearing difficulties as the bases for these challenges to the will.

Hallen J revoked the will on 14 April 2022, and in its place the 2011 will was admitted to probate in solemn form. Amongst other things, his Honour was critical of the inadequacies of the file note taken by Mr Lee. A particularly significant factor in his Honour’s decision was the lack of apparent reason for the change in disposition made to Boon, who (with his wife) had lived with and provided care for Mrs Lam. His Honour also made reference to the Briginshaw principle.

The executor, Mrs Lam’s other son (Sony), appealed from that decision.

The Court (per Kirk JA, Bell CJ and Griffiths AJA agreeing) upheld the appeal, and explained:

1. The nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the fact. In a probate case serious allegations may be made, involving fraud, manipulative conduct or the like. For such allegations application of the Briginshaw principle is required. Applying the principle in such cases reflects the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct so that such a finding should not lightly be made. However, it is not the case that whenever a question is raised on the facts as to testamentary capacity or knowledge and approval that that will necessarily involve such serious allegations or inherently unlikely matters. No issue in this case called for application of the Briginshaw principle: [21]-[24].

Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285; Veall v Veall (2015) 46 VR 123; [2015] VSCA 60, considered.

2. Mrs Lam had one asset of any significance, a house, and given her determination to make a new will and to ensure her three children present at the conference understood what she was doing, there is good reason to infer she had the capacity to understand the extent of her property. Her choice to exclude Rose and to make equal provision for her other four children, despite being warned of possible family provision claims, manifests a purposeful consideration of the main potential objects of her bounty, and demonstrates her capacity to consider that issue. So, too, does the fact that she had her proposed disposition explained to her children, giving them a chance to object, prior to executing the will. The medical evidence, taken as a whole, does not suggest that she was unlikely to have sufficient cognition on 16 October 2019 to address these issues. Neither the fact that Mandarin was not Mrs Lam’s main language, nor the fact that she was not wearing hearing aids despite her significant hearing impairment, suggests that she lacked capacity properly to understand what was occurring on that day: at [116]-[117].

3. For the same reasons, it cannot be said that she did not know or approve the contents of the will: at [119].

JUDGMENT

  1. BELL CJ: I have had the benefit of reading the reasons for judgment of Kirk JA. I agree with his Honour’s close and careful analysis of the evidence, which accords with my own review of it. I also agree with the very clear reasons his Honour gives for upholding the appeal, and the orders proposed consequent upon that outcome.

  2. KIRK JA: This appeal concerns the validity of a will executed on 16 October 2019 (the 2019 Will) by a Mrs Daisy Lam. Mrs Lam died a month later on 16 November 2019. Her 2019 will was admitted to probate in common form on 28 September 2020.

  3. The will was challenged by her son Tong Boon Lim (Boon), the respondent. No family provision claim was made. The grant of probate was revoked by Hallen J on 14 April 2022 and in its place a previous will executed by Mrs Lam on 29 July 2011 (the 2011 Will) was admitted to probate in solemn form. His Honour was not persuaded that Mrs Lam had testamentary capacity when she made the 2019 Will, nor that she knew and approved its contents.

  4. The executor, Sony Tong Yew Lim (Sony), Mrs Lam’s other son, now appeals that decision. There are five overlapping grounds of appeal, but in essence the appeal challenges the conclusion of the primary judge on those two issues. It is unnecessary to distinguish between the appeal grounds.

  5. The appeal turns on issues of fact. On my review of all the evidence, and in a context where his Honour’s conclusions substantially did not depend on credit findings, I have come to a different conclusion to the primary judge. In my view the evidence establishes both that Mrs Lam had testamentary capacity on 16 October 2019 and that she understood and approved the contents of the 2019 Will.

  6. This judgment is structured as follows:

  1. relevant legal principles – at [7]-[27];

  2. the making of the will – at [28]-[44];

  3. the primary judgment – at [45]-[54];

  4. the issue of capacity – at [55]-[117];

  5. the issue of knowledge and approval – at [118]-[119].

Legal principles

Capacity

  1. It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] per Basten JA):

  1. the capacity to understand the nature of the act of making a will and its effects;

  2. the capacity to understand the extent of the property the subject of the will;

  3. the capacity to comprehend moral claims of potential beneficiaries; and

  4. the absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property” (to quote Bailey v Bailey (1924) 34 CLR 558 at 571-572 per Isaacs J).

  1. Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]-[41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one’s property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries.

  2. Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA.

Knowledge and approval

  1. A further, obvious precondition of a valid will is that the testator knew and approved of the contents of the will. In some cases that may also require showing that they appreciated the effect of what they were doing, so that it can be said that the will contains the real intention and reflects the true will of the testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47] per Meagher JA; Lewis v Lewis (2021) 105 NSWLR 487 at [166]-[187] per Leeming JA. Again, the simpler the will the more easily it might be established that a testator knew and approved of its contents.

Onus

  1. It has long been established that the legal onus of proof with respect to testamentary capacity and knowledge and approval, if those issues are raised on the evidence, is on the party propounding the validity of the will. Talk of shifting burdens and of presumptions has been common in this area of the law. The way in which the question of onus is often dealt with in respect of testamentary capacity was summarised by Meagher JA in Tobin v Ezekiel at [45]:

If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 17 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.

  1. In respect of knowledge and approval, the language of “suspicious circumstances” has often been used. In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, for example, Isaacs J explained (at 528):

(1) In general, where there appears no circumstance exciting suspicion that the provisions of [a testamentary instrument] may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents: Barry v Butlin 2 Moo PCC at p 484; Fulton v Andrew LR 7 HL 448.

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document: Baker v Batt 2 Moo PCC 317 at 321; Tyrrell v Painton [1894] P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind App 10 at 16.

  1. Although it is not necessary to resolve the issue here, there is reason to doubt the utility now of the language of presumptions, shifting burdens, and suspicious circumstances. Writing extrajudicially, Justice Lindsay has observed:

Although conventional, this style of language does not sit comfortably with the way a modern probate suit is heard by a judge sitting alone, without a jury, receiving almost all the evidence on both sides of a question by affidavits, upon which deponents are selectively cross examined. In the modern form of “judge alone (case managed) trial” it is generally artificial, at least at a final hearing, to analyse a case in terms of a “prima facie case” or dispositive “presumptions”. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence.

[G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018, at [45]]

  1. With specific reference to testamentary capacity, in Carr v Homersham, at [47], Basten JA explained:

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.

  1. Much the same may be said of knowledge and approval (see also Mekhail v Hana at [164]-[173]).

  2. Here, it was clear on the evidence that both issues were raised, and were dealt with by the primary judge by considering all the evidence and by drawing inferences from it. It is the task of this Court, conducting a real review of the evidence, to determine whether his Honour was in error in coming to the conclusions which he did in light of the grounds of appeal raised.

Standard of proof

  1. The issues at hand fall to be resolved by the civil standard of proof, that is, on the balance of probabilities. It is not required that all residual or reasonable doubts be dispelled before these requirements are taken to be proved: note Worth v Clasohm (1952) 86 CLR 439 at 453. In Tobin v Ezekiel, at [48], Meagher JA explained the position as follows:

In this context the statements prescribing “vigilance” and “careful scrutiny” and referring to the court being “affirmatively satisfied” as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.

  1. The Briginshaw principle has been explained as follows by French and Jacobson JJ in Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [110] (and see further the discussion of Branson J at [124]-[139]):

The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made.

  1. Here, the primary judge quoted the passage just extracted from Tobin v Ezekiel judgment (at [365]) and echoed it in his concluding analysis as follows (at [430]):

Following a vigilant examination of the entirety of the evidence, and applying the conventional civil standard of proof, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(2) of the Evidence Act 1995 (NSW), I am satisfied that there remains a substantial residual doubt which is sufficient to preclude the belief that the deceased was of sound mind, memory and understanding at the time of execution of the 2019 Will.

  1. One reading of this paragraph – though not a necessary one – is that the primary judge considered that in the case at hand a higher degree of satisfaction was required with respect to the issues being considered. There is no such general requirement. And nothing about this case called for a higher degree of satisfaction than is ordinarily required.

  2. Whether a higher degree of satisfaction may be required depends, inter alia, upon what precise factual matters are at issue in the particular case. Buchanan and Phillips JJA indicated as much in Kantor v Vosahlo [2004] VSCA 235 at [58] (as cited by Meagher JA in the passage quoted from Tobin v Ezekiel):

There is no warrant, then, for describing the onus on the propounders in this case as “heavy” or the standard as other than the ordinary one applicable in a civil suit. Of course the cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case, as it always does; the source of the doubt as to capacity will say much about what must be proved to dispel the doubt.

  1. The issue was further discussed by Ormiston JA in the same case at [15]-[24]; and see further Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [180]-[183]. The passage from Tobin v Ezekiel at [48] does not suggest to the contrary. His Honour’s observation that “any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw” merely recognises that the nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the fact, as a reading of the whole paragraph makes clear. As Isaacs J said in Bailey v Bailey at 570, 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”.

  2. That understanding reflects the nature of the Briginshaw principle, as manifest in s 140(2) of the Evidence Act. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34, Dixon J indicated that what is required in order to be reasonably satisfied of a matter may be affected by the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations”. In a probate case serious allegations may be made, involving fraud, manipulative conduct or the like. For such allegations application of the Briginshaw principle is required. Applying the principle in such cases reflects the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct” so that such a finding should not lightly be made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; [1992] HCA 66. That understanding illustrates that the first and second of the issues identified by Dixon J overlap.

  3. However, it is not the case that whenever a question is raised on the facts as to testamentary capacity or knowledge and approval that that will necessarily involve such serious allegations or inherently unlikely matters. This matter illustrates the point. There is no suggestion of untoward conduct by any of those involved. There is simply an ordinary factual dispute about Mrs Lam’s capacity and understanding of the will given the circumstances with which she was faced on 16 October 2019.

  4. Dixon J also referred to “the gravity of the consequences flowing from a particular finding” as a relevant consideration (and see s 140(2)(b) and (c) of the Evidence Act). No doubt “deciding whether a document is indeed a person’s last will is a serious matter”, as Meagher JA stated. It is certainly a serious matter to find a will to be invalid. As Gleeson CJ explained in Re Estate of Griffith (1995) 217 ALR 284 at 290:

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.

  1. Setting aside a will (or not) may have a range of consequences, including financial and emotional, for those involved. But those are not the kind of consequences to which Dixon J was referring. For example, there is no necessary effect on “the right to carry on a profession or business” (quoting Kantor v Vosahlo at [20]).

  2. Put simply, whether or not the Briginshaw principle applies in probate cases to require a higher degree of satisfaction depends upon the particular factual matters at issue. As Branson J said in Qantas Airways at [125], Dixon J’s discussion in Briginshaw was concerned “with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding”.

The making of the will

  1. Mrs Lam was born in Singapore, her family originating from the Chinese province of Hainan. She emigrated to Australia in about 1975. Her first language was Hainanese, which is a different spoken language to Mandarin or Cantonese.

  2. Mrs Lam was one day short of her 90th birthday when she died on 16 November 2019. She is survived by five adult children, having three daughters in addition to her sons Boon and Sony. The daughters are Rose Sok Keow Tan (Rose), Lily Sok Lei Chan (Lily), and Ping-Ping Sok Peng Lam (Ping). Boon, Lily and Sony each gave evidence, as did Boon’s wife Alice, and Mrs Lam’s sister, Alice Han (Ms Han). Ping did not give evidence, apparently being in Hong Kong at the time, where she resided. Rose also did not give evidence, having been estranged from her mother.

  3. The primary judge made no express adverse credit findings, nor otherwise suggested that any witness was not trying to tell the truth, save that he said at [160] that Boon’s denial that the contents of the 2019 Will were discussed in his presence prior to Mrs Lam signing it (see further below), contrary to the weight of evidence, “affects his credit”. Thus the appellant submitted, and the respondent did not dispute, that the natural advantages of a trial judge are not material here.

  4. Four wills were in evidence, executed in 1986, 2000, 2011 and 2019 respectively. The 2019 Will appoints four of the five children (all except Rose) as executors and leaves to them the estate in equal shares, after payment of debts, funeral expenses and similar costs. Lily and Ping each renounced their position as executor in 2020. Accordingly, the case below was brought by Boon against Sony.

  5. The 2011 Will differed from the 2019 Will: it appointed Boon as executor alone; it gave monies in a bank account to two of Mrs Lam’s grandsons; it gave her jewellery to Boon and Ping; and it allocated the residue of her estate to Boon as to 62%, Ping as to 30%, Lily as to 3% and Sony as to 5%. It also provided for Boon to continue to live in the house owned by Mrs Lam for five years and to have a right to purchase it at market value. The will stated that Mrs Lam was giving a greater proportion of her estate to Boon “in recognition of his living with me and looking after me for many years in my own home and his stated commitment to continue to do so during my old age”.

  6. The 2019 Will was executed by Mrs Lam on 16 October 2019, at the offices of a firm of solicitors, James Lee Solicitors. Mrs Lam attended at the firm of solicitors accompanied by Boon, Ping (with Ping’s young daughter) and Lily. She was 89 at the time, and living at a house in Burwood with Boon and Boon’s wife Alice. That house is the sole significant asset in her estate. Lily, who resided in Canberra, had been staying at the house at the time to help look after Mrs Lam whilst Boon was travelling (he was in Singapore from 9-14 October 2019). At the time Mrs Lam got along with all her children, Rose aside.

  7. On 9 October 2019, a week before the execution of the will, Mrs Lam was admitted to Concord Hospital with arm and leg pain. She was discharged the following day, but readmitted on 12 October, and discharged again on 15 October. Lily stayed in the hospital with her. Boon’s evidence was that after she had been discharged, Mrs Lam continued to complain of severe pain and discomfort, and was on strong pain killers.

  8. Lily gave evidence that while her mother was in hospital “she kept saying to me words to the effect of, ‘I need to change my will’ or ‘I need to make another will’ and ‘find me a lawyer’”. Lily explained in her affidavit:

[6] The Deceased was discharged from Concord hospital on 15 October 2019. Either on that day or whilst the Deceased was in hospital, I contacted my sister Ping and told her what the Deceased had said to me about her will and asked her for the name of a solicitor she (Ping) could recommend in Sydney as the only solicitors I knew were in the ACT.

[7] I subsequently had a conversation with Ping and was advised by her of an appointment she had been able to make for the following day for the Deceased to see a "Jeffrey Lee" solicitor at his (Mr Lee's) office in the City.

  1. Boon gave evidence that on 16 October 2019, he left the house early in the morning for work, and returned around 12:30pm or 1pm. He says he was then asked by Ping (who he says had arrived from Hong Kong that morning) and Lily to drive them, Ping’s child, and Mrs Lam to the office of a solicitor, Mr Jeffrey Lee. Sony’s evidence was that, on that same morning, “Ping said mum want to make a will and mum request us all to accompany her to the solicitor place”. Sony said he did not go because he did not consider his presence necessary, and he had just come back from overseas and was tired and had a headache.

  2. The group drove into the city. There was apparently little discussion in the car on the way to the solicitor’s office. According to an invoice issued by James Lee Solicitors to Mrs Lam, the conference began at 2:30pm and concluded at 5:20pm. The invoice issued to the solicitor, Mr Lee, by the firm which employed the interpreter who attended at the conference also records the conference as occurring between 2:30pm and 5:20pm.

  3. Boon explained that after entering the solicitor’s office, he pushed his mother in her wheelchair into a conference room where he left her with Mr Lee and an interpreter, and then waited with his two siblings and his niece in the reception area. This accords with Lily’s account. It is not in dispute that the interpreter spoke English and Mandarin, not Hainanese.

  4. Boon gave evidence that after some 1.5 hours Mr Lee emerged from the conference room to check the spelling of the siblings’ names. Subsequently, Boon deposed:

Some time had passed and I was then advised by Jeffrey Lee that the meeting was finished. I went into the meeting room to push my mother’s wheelchair out of the room. My mother, my sisters, my niece and I exited the building … and I drove us all back to the Burwood property.

  1. Lily’s account differed:

[10] After about one (1) hour Mr Lee came to us and asked us all to go into his office where the Deceased was. There was then seven (7) people in the room. They were, the Deceased, the four (4) of us who travelled to the City with her (including the Plaintiff), Mr Lee and a translator.

[11] The Deceased said words to the effect of: "I don't want to sign until you all know what is in it. I want you all to read it". Mr Lee then provided each of us with a copy to read. We all read it and gave it back to Mr Lee. The deceased then asked the Plaintiff, Ping and I in Hainanese, “Are you all happy with it". We each responded with a yes or a nod of the head.

[12] The Deceased then signed the 2019 Will in the presence of Mr Lee and the translator and all of us in the room.

[13] After the Deceased signed the 2019 Will, we all left Mr Lee's office.

  1. In cross-examination, it was put to Lily that her mother did not say "I don't want to sign until you all know what is in it. I want you to all read it". Lily disagreed. It was also put to her that copies of the will were not given to her and to Boon and Ping. Again, she disagreed. She did however appear to resile from her evidence that she was in the room when her mother signed the will.

  2. It was suggested to Boon in cross-examination that he was “again asked to come into the conference room by Mr Lee to discuss the terms of the will”. His response was “No, did not happen at all”. As noted above, his Honour did not accept that evidence.

  3. Mr Lee’s evidence of the conference accorded with Lily’s. Notably, he explained that after he completed the draft will, he asked the party to come into the conference room at Mrs Lam’s request. He could not remember if the siblings were provided with copies of the draft will, but said that he explained to them that Mrs Lam had excluded Rose from the will and that under her will the assets were to be divided equally between the remainder of the children. He did so in English and the interpreter said it again in Mandarin (Mr Lee himself only spoke very little Mandarin). He recalled Mrs Lam asking of her children, in Chinese, something to the effect of “is that okay?”. No protest was made.

  4. The evidence of what occurred while Mr Lee was alone in the conference room with Mrs Lam and the interpreter, Ms Li, is considered below.

The primary judgment

  1. The primary judge did not find that any of the children had sought to take advantage of their mother or had otherwise acted in an inappropriate way, and no such suggestion was made by Boon in this Court. Rather, there was a number of possible concerns that arose with respect to the circumstances facing Mrs Lam when making the 2019 Will. His Honour concluded at [432] that he was “unable to make a positive finding of satisfaction that it was more likely than not that the deceased had capacity and that she knew and approved of the contents of [her] Will”. On that basis the grant of probate for the 2019 Will was overturned.

  2. In respect of testamentary capacity, his Honour was “just satisfied” that Mrs Lam had the capacity to understand the nature of the act of making a will (at [390]). However he was not persuaded of her capacity with respect to the second and third elements arising from Banks v Goodfellow, namely the capability to understand the extent of property held (see at [391]) or the capacity to understand the possible claims on her bounty.

  3. As to the latter, his Honour said at [434] that there was “no objective evidence which demonstrated that the deceased was able to sift, and weigh, information, or that she was capable of making a purposeful decision in regard to the claims on her bounty”. He noted in the same paragraph that:

the deceased did not refer to the view that she had expressed concerning Boon and did not suggest that anything had occurred which would prompt an alteration of the provision made for Boon in any earlier will that the deceased had made, or otherwise cause her to provide him with an equal, as opposed to a greater, share of her estate, as she had done in the 2011 Will.

  1. This point about the alteration of the provision for Boon seems to have been the one which weighed most significantly with his Honour. Whilst noting that “a will-maker is not required to justify any change in testamentary dispositions” (at [444]), his Honour then said:

[447] How, and why, did the deceased come to change her mind? Without any explanation, or evidence of any cause, the most significant change in reducing Boon’s share of the estate, in my view, demonstrates the deceased’s inability to evaluate the competing claims on her testamentary bounty. The terms of the 2019 Will were, in this regard, inexplicable. Making the 2019 Will in those terms was inconsistent with a rational assessment of the greater moral obligation owed to Boon, a matter that the deceased had recognised in her earlier wills.

  1. In addition to this argument, his Honour also noted (at [452]) that “there remains the unanswered question concerning whether there was a linguistic understanding, by the deceased, of the concepts interpreted in the Mandarin Chinese language when it is more likely than not, that the deceased’s principal language of choice was Hainanese”. His Honour also noted the fact that Mrs Lam was not wearing her hearing aids (at [454]), and a “concern” raised in the medical evidence as to Mrs Lam’s capacity (at [456]).

  2. As for knowledge and approval, his Honour explained:

[458] Whilst testamentary capacity and knowledge and approval are distinct concepts, practically speaking evidence bearing upon one concept may also be relevant to consideration of the other. Whether the deceased knew and approved the contents of the 2019 Will, requires the Court to focus attention on whether she knew the contents thereof, and appreciated the effect of what she was doing, so that it can be said that the 2019 Will reflects the real intention and the true will of the deceased.

[459] For many of the same reasons set out above, this is a case where the elements of suspicion arising from the circumstances are sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of an apparently rational will. Merely recognising one Mandarin Chinese word meaning “fair, just or even” in my view, is not enough bearing in mind the other matters to which I have referred.

  1. The reference to the recognition of the one Mandarin word is a reference to evidence given by Mr Lee that Mrs Lam used the word “gongping” to refer to the equal distribution of her assets between the four children.

  2. His Honour also referred to a clause in the will which spoke of the named beneficiaries attaining the age of 18 years, and suggested that if this had been interpreted to Mrs Lam, and understood by her, “one might have expected her to have said something”. Unsurprisingly, however, his Honour said he put little weight on this (at [460]). It no doubt reflected the pro forma origins of the document.

  3. His Honour concluded on the issue of knowledge and approval as follows:

[461] I have not forgotten the deceased was said to have invited the children into the conference room following instructions being conveyed to Mr Lee, and that Mr Lee has given evidence of what was said, which evidence he maintained in cross-examination. That evidence, however, was not mentioned in his diary note, and whilst it is a matter I have remembered, it has not dispelled the substantial doubt about her capacity and her knowledge and approval engendered by all of the other evidence.

  1. This passage might be read to suggest some possible doubt about whether the children were invited and came into the conference room where the contents of the draft will were discussed. Any such doubt is inconsistent with what his Honour said earlier in the judgment at [160], where it is clear not only that he accepted that this had occurred (based on the evidence of Mr Lee and Lily) but said that Boon’s denial that it had occurred “affects his credit”. The finding at [160] was well-based and was not challenged on appeal.

Capacity

  1. It is necessary here to consider the evidence in some detail, starting with the overall evidence relating to testamentary capacity, then addressing in turn the particular concerns raised as to Mrs Lam’s medical condition, the language employed, Mrs Lam’s hearing, and the alteration of her disposition to Boon. As discussed, once the issue of testamentary capacity is raised on the evidence it is necessary that the propounder of the will (here Sony) establishes such on the balance of probabilities. It is not necessary that the requirement be proved beyond reasonable doubt. And in this case no Briginshaw issue arises (see above at [17]-[27]).

Evidence of testamentary capacity

  1. The evidence of Boon and Lily with respect to attending the conference has been discussed above at [35]-[42]. They were not present when Mrs Lam was giving instructions to the solicitor, Jeffrey Lee, with the assistance of the interpreter Ms Mei Li.

  2. Boon gave evidence that “[d]uring the last weeks of her life, my mother became very drowsy and tired”, and that when discharged from hospital on 15 October 2019 she “was still complaining of severe pain and discomfort”, and “would rarely speak and have very little energy due to lack of sleep”. Boon’s wife, Alice, deposed that in her final months Mrs Lam was very tired, spent a lot of time sleeping, had lost interest in her surroundings, although she recognised people.

  3. Sony said that when he saw Mrs Lam on the morning of 16 October 2019 she “appeared to me to be alert and her usual self” and “appeared to me to know what was going on around her”. And Lily said, with regard to attending the conference, that to her observation her mother “was alert and appeared to me to know why she was in Mr Lee’s office”. She accepted that her mother was “not well” on that day.

  1. This evidence is not necessarily inconsistent. No doubt Mrs Lam was suffering from significant pain, discomfort and tiredness the day after she was discharged from hospital. And it is readily believable that she was lacking in energy. These characteristics are relevant but do not establish that she did not have testamentary capacity on 16 October 2019. This evidence also does little to establish that she did have that capacity.

  2. Mr Lee’s evidence was that the conference involved a number of different stages. After introducing himself and Ms Li to Mrs Lam, he made sure that Mrs Lam and Ms Li could understand each other. He asked Mrs Lam how she was feeling, and, having noticed her swollen hand, recalled asking specifically about that. After this initial exchange, Mr Lee began to take instructions. After he had elicited the instructions from Mrs Lam, he then went out to her children to obtain their details. He amended on his computer the pro forma will which he used as he went along. He then had Ms Li interpret the entirety of the will to Mrs Lam, which “took quite some time”. After that, Mrs Lam wanted the will explained to her children, and this occurred as discussed above. He testified that Mrs Lam signed the will in the conference room in the presence only of himself and Ms Li.

  3. Mr Lee took a contemporaneous file note, which was as follows:

Jeff 16/10/19

Mei 2:30pm

Daisy

Daughter

Son

Ping & [her daughter]

5 children - only want to distribute to 4 younger children

Eldest child - don’t want to give

- Possible claim by Rose for no provision

Daisy says for children to sort out

- Also, possible claim by Tong Boon as Daisy lives with her [sic]. She may claim for insufficient provision. Daisy says for children to sort out.

[illegible] 4:40pm

+ Scan will & amend EG & EPOA

  1. Mr Lee was asked about his use of the feminine pronoun in reference to Boon. He explained that, at the time, he “thought that Tong Boon was a, a lady”. Nothing was said to turn on this.

  2. The primary judge was critical both of the lack of detail in the file note and of Mr Lee’s approach generally, although he accepted at [387] that there was no attack on Mr Lee’s integrity. The fact that the file note did not refer to the will being explained to the children was said to be a “glaring omission” (at [288] and [403]), and his Honour was critical of its sparseness (at [401]). He also noted at [402] that there was no diary note of Mr Lee’s conversation with Ping when the conference was arranged.

  3. His Honour said at [391] that Mr Lee did not ask Mrs Lam about her assets and liabilities, although his Honour accepted that Mr Lee did ascertain that the Burwood property was her asset. In fact, that was her only asset of any significance. His Honour noted that Mr Lee did not ask about any prior wills or about how the new will might differ from those (at [393]-[394]). Mr Lee did not discuss any potential claim that Boon’s wife Alice may have had, given the care she had provided to Mrs Lam (at [396]). His Honour recorded critically Mr Lee’s apparent lack of familiarity with the principles arising from Banks v Goodfellow, or with relevant professional guidelines about taking a will (at [404]-[405]). He said Mr Lee gave no evidence of having taken any special precautions when seeing the deceased, nor did he seemingly “test the deceased’s cognitive powers, in any meaningful way, for the purpose of ascertaining her testamentary capacity” (at [406]). His Honour concluded that “[t]he deceased’s capacity was not adequately tested” (at [408]).

  4. There is clearly room for criticism of Mr Lee’s notetaking. However, this is not a disciplinary or negligence case, and there is no suggestion that Mr Lee’s evidence of what did occur should not be accepted. That Mr Lee did not take steps to test Mrs Lam’s capacity does not denude his observations of any value.

  5. It will be recalled that his Honour accepted that Mrs Lam had the capacity to understand the nature of the act of making a will and its effects. In all the circumstances there can be little doubt of that.

  6. As for Mrs Lam’s understanding of the extent of her property, as Basten JA explained in Carr v Homersham at [8], “[n]o high level of precision is required to be demonstrated in relation to the testator’s knowledge of her property as at the date of execution of the will”. For this proposition, his Honour cited White J in d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333 at [105], which gives a good flavour of what is encompassed by this requirement:

The only substantial omission from her description of her assets was the omission of the Coogee unit. Nonetheless, Mrs Abraham was aware that she owned real estate as an investment and was able to identify the principal asset of that category. Kerr v Badran establishes that the Banks v Goodfellow test may not require that older people know of each particular asset, let alone the value of each asset comprising the estate. Mrs Abraham knew that she had real estate investments and it is a reasonable inference that she knew that she received income from that source. It does not matter that she did not know how much income from real estate investments she received. Nor does it matter that she did not identify the Coogee unit as being one of those investments. In my view the second element of the Banks v Goodfellow test (namely that the testatrix understand the extent of property of which she was disposing) is satisfied.

  1. Boon’s counsel argued that it was significant that Mr Lee did not ask any questions about what property she owned, saying he obtained Mrs Lam’s address from her pension card and then conducted a property title search on the Burwood property. In fact the evidence is not very clear about how Mr Lee came to learn that she owned that property. The title search was done at 3:42pm, over an hour after the conference started, which tends to suggest that he obtained it as confirmation rather than in order to find out whether or not she owned it.

  2. In any event, it appears that her only significant asset was the house in Burwood in which she was living. It is the only asset listed in the inventory of property. The fact that Mrs Lam went to the trouble of seeking to make a will, and then sought to ensure that her children present understood what was in it, indicates that she understood her estate had value. That strongly suggests that she understood that she owned her own house, manifesting her capacity to understand the extent of her property.

  3. As for Mrs Lam’s capacity to understand the potential claims on her bounty, it is significant that the file note records Mrs Lam’s intention to exclude Rose from the will. Mr Lee’s evidence was that he did not ask about any earlier will. That means that the exclusion of Rose could only have occurred by reason of instructions given by Mrs Lam. There is no evidence that Mr Lee’s understanding of what was to be in the will came from anyone other than Mrs Lam herself. Mr Lee strongly disputed the suggestion put to him in cross-examination that it was Ping who had told him that Mrs Lam wanted to divide her property equally between the four children, or that each of those children were to be executors.

  4. Mr Lee gave evidence of discussing the exclusion of Rose with Mrs Lam, saying that “I tried to ask, well, I asked the deceased to, to give me, let me know why she did not want to, to give to the eldest child but she declined to do so. She was quite emotional and, but, yeah, did not give me a reason why”. He also said that “she did not tell me why she’d been estranged and – well, basically the deceased didn't consider Rose to be her daughter any more, but didn't give me a reason as to why”.

  5. The fact that Mrs Lam made her own decision to exclude one of her children reveals that she did in fact consider one notable person who had a potential claim on her bounty and made her own deliberate decision to exclude her. That evidences her capacity to do so.

  6. The file note records that Mrs Lam told Mr Lee that if Rose made a family provision claim it was “for [the] children to sort out”. The primary judge said that this “suggests that she may not have had the capacity to evaluate, and to discriminate between, the respective strengths of the claims of the persons with claims upon her bounty” (at [399]). I respectfully disagree. Mrs Lam had made a deliberate decision as to excluding one of her children. The file note manifests that she understood that this might have legal consequences, but she was still prepared to maintain her decision. Saying that those consequences were for the children to sort out was not a washing of her hands but an affirmation of her decision. Self-evidently, she would not be around to contest a family provision claim.

  7. It is similarly significant that the file note records Mr Lee’s advice that Boon may make a family provision claim because he was living with Mrs Lam. Again, her response that it was for the children to “sort out”. Much like the exclusion of Rose, the fact that Mr Lee wrote down that Boon lived with Mrs Lam suggests that Mrs Lam communicated this information to Mr Lee. The discussion on point again went to those who may have a moral claim on her bounty. There is nothing to suggest that Mrs Lam did not understand the discussions about the possible provision claims.

  8. There is no evidence of any discussion about other possible claimants on her bounty, such as her grandchildren (including the two grandsons who would have obtained some benefit under her 2011 Will), her sister Ms Han, or Boon’s wife Alice. However, as discussed above at [8], the issue is Mrs Lam’s capacity to consider such claims, not whether she actually did so.

  9. The process by which Mr Lee elicited the information which he did elicit from Mrs Lam also speaks to her capacity. He explained that he “was asking her what … [were] her wishes in terms of her assets”. He explained that this took some time:

So, to, to obtain the basic instructions in terms of wanting to exclude the oldest daughter, probably about ten or 15 minutes. I was trying to ask her why she wanted to exclude. And then in terms of sharing the rest equally about - not, not, not, not, not - just a few sentences. Although I did discuss - there was a discussion the testator had said in Chinese, a Chinese word “gongping” which is what I understand to be fair, just, even and because that’s similar to my late father’s name “chiping” which is similar flat, fair, even. And there was a bit of discussion about that. And otherwise, so they were the, the instructions or the, the wishes. And, and then the, the interpretation of the, the typed will took quite some time to read - for the interpreter to read to the - to the - so that, I don't know probably about an hour for that.

  1. Whilst Mr Lee’s picking up of one word should not be overstated in importance, nevertheless Mrs Lam’s use of the word “gongping” is supportive of her having made a deliberate, clear decision to make equal provision for the four children.

  2. A further important point is that Mrs Lam asked for her three children present to be called back into the conference room because, to quote Mr Lee, “she was wanting to make sure that the children were happy with what … her wishes were”. This indicates that Mrs Lam was well aware of what she was doing when Mr Lee was eliciting instructions from her and when the draft will was being interpreted to her. It reveals that Mrs Lam recognised that she was dealing with something important for her and for her children. She wanted to check that her proposed distribution of her estate was acceptable to those of her children who were there. Again, this supports the inference that Mrs Lam had the ability to appreciate the moral claims of potential beneficiaries and to make a purposeful decision on such.

  3. This evidence is reinforced by a further detail. The only one of Mrs Lam’s children who was not present, apart from Rose, was Sony (see above at [36]). She was displeased with his absence, as Sony explained:

After the solicitor she call me on the phone wondering why I didn't make the trip down. So I say I have a headache, I, I say you got Lily, Ping and Boon accompanied you, so that’s why I excuse myself not going down there, I’m not feeling that well. But I didn't realise she was so determined want me to go down there, so that’s the reason why I explained it to her on the phone.

  1. This is evidence that Mrs Lam had a clear understanding of what she was doing and wanted her four non-estranged children – the main potential claimants of her bounty – to have been part of the process.

  2. Additional evidence that she knew she was undertaking a significant legal process is that she took her passport along to the conference for identification purposes.

  3. Also relevant is the evidence of Lily that Mrs Lam had kept saying to her whilst in hospital words to the effect of “‘I need to change my will’ or ‘I need to make another will’ and ‘find me a lawyer’”. She thus understood she had an existing will. She had decided she wanted to change it, presumptively because she had decided to change how her estate was to be divided amongst those with a potential claim on her bounty.

  4. As for Mr Lee’s view of Mrs Lam’s testamentary capacity, it was put to him in cross-examination that he was “surely concerned as to whether or not the testator had capacity to make a will”. His response was “No”, saying that:

there was no indication from any of her children that she lacked any capacity. There was no concern expressed to me that there was any problem to that effect. And after spending one and a half hours interviewing, asking her - taking instructions, she was actually in, in better condition than, than my, my own mother who was ten years younger than her.

  1. Limited significance should be given to Mr Lee’s assessment when he made no particular effort to test or assess her capacity (and we do not know anything of the condition of Mr Lee’s mother). Yet that does not mean his view is of no weight. Taken with all the evidence above, Mr Lee’s own observation lends some limited support to a finding of capacity.

  2. One final minor detail may be noted, though I do not place any significant weight on it. On the day after the will was completed Mrs Lam went to Star Casino with Lily, her son and other family members. She played on poker machines and they had dinner. There is a photo in evidence of her at the casino looking bright-eyed and attentive, but the limits of photographic evidence are well-known.

Medical evidence

  1. Three medical experts were called as witnesses. Professor James Brew, a neurologist of substantial seniority and experience, was retained as a joint expert by both parties. Dr Simone Strasser, a hepatologist (a speciality which includes study of the liver) was then retained by the respondent. Associate Professor John Cullen, a Senior Specialist in the Department of Geriatric Medicine at Concord Hospital who cared for Mrs Lam during some of her admissions in 2019, was called by the appellant. Neither Professor Brew nor Dr Strasser had seen Mrs Lam but both had reviewed her medical records.

  2. Professor Brew noted that Mrs Lam had various chronic illnesses when she made her will, but the only one that might have affected her cognition was that she had abnormal liver function tests (she had had hepatitis B), and liver failure could affect cognition. However, there was no evidence in the records of any such problem with cognition, where it would be expected that such a problem would have been recorded. She had scored 14 out of 15 on the Glasgow Coma Scale on 12 October 2019, with the comment “NESB”, which Professor Brew said “presumably [meant] that they couldn’t give her full marks because of language issues” (where NESB stands for “non-English speaking background”). That scale measures consciousness and responsiveness.

  3. The high point of Professor Brew’s evidence as far as the respondent was concerned was the following oral evidence:

Q. Would it be correct then to say that because of the presence of the various factors that I've identified that there is doubt over her cognition at the middle of October 2019?

A. No. Doubt is too strong a phrasing of it. I think there can be some concern given those factors that we've agreed upon earlier, in terms of her age, and given that she did seem to become encephalopathic some two weeks later. But it's critical to understand that patients can develop - so, first and foremost, you can have compensated liver disease, compensated liver failure, and that's what it means, without any encephalopathy. … I agree that it, she's at risk, and I agree that you can have some suspicion, but I contend that doubt is too strong a phrasing of the circumstances.

  1. Encephalopathy refers to brain injury or disfunction.

  2. Surprisingly, Dr Strasser had not read Professor Brew’s reports. The evidence was not taken concurrently. Her evidence included the following:

23. It is not possible to exclude a subtle cognitive deficit due to undiagnosed covert, or minimal, HE [hepatic encephalopathy] this would require formal specialised neuropsychometric testing. Covert HE is present in up to 80% of patients with cirrhosis, with patients with decompensated liver disease being at the highest risk. … It is not possible to determine if Mrs Lam had covert HE resulting in impairment of executive decision-making, however in my opinion, it is possible.

24. As Mrs Lam appeared to interact normally with her family, with her lawyer and with the interpreter in my opinion it is likely that Mrs Lam was aware she was making a Will.

25. In my opinion, covert HE related to decompensated liver disease if present, may have impacted Mrs Lam’s capacity to appreciate the nature and value, in general terms, of her Estate. As mentioned, it is not possible to determine if covert HE was present as no formal neuropsychometric testing was performed. None of her medications at discharge from hospital on 15 Oct 2019 would be likely to impact her cognitive state.

26. In my opinion, covert HE related to decompensated liver disease, if present, could have affected Mrs Lam’s ability to identify the natural objects of her testamentary affection.

27. In my opinion, covert HE related to decompensated liver disease, if present, could have affected Mrs Lam’s ability to comprehend and appreciate any claims to which she ought to give effect.

  1. This evidence was substantially speculative. Her views seemed to strengthen in her oral testimony. Dr Strasser accepted that she could not see any documentation of any overt changes in Mrs Lam’s executive ability. She said that she considered it probable that Mrs Lam did have covert – ie unapparent – HE. She also said that “on the balance of probability, she would’ve been impaired”, and this might have affected her ability to comprehend what was involved in making a will, saying “she may well have had subtle executive changes”. This evidence fell short of suggesting that significant cognitive impairment was likely on 16 October 2019. And Dr Strasser herself noted that in “review of the medical records provided, Mrs Lam appeared alert, orientated and appropriate to the medical and nursing staff at all times”.

  2. Associate Professor Cullen was the geriatrician who treated Mrs Lam in Concord Hospital on 29 August to 3 September 2019, then again in November 2019 leading up to her death. He had not treated her during her hospitalisation on 12-15 October 2019. He explained that he had no clear memory of Mrs Lam. She did not undergo any formal assessments of her cognitional capacity while she was in hospital under his care. He said that in her “final admission under my care, she was encephalopathic but, and increasingly so as the, as the admission progressed and her liver failure worsened”. However, although he had not treated her during her earlier hospitalisation on 12-15 October 2019 he said that, based on his review of the records, there was nothing from her presentation that suggested the need to assess her capacity, and if there were reasons to doubt her capacity a formal assessment would have been undertaken.

  1. The primary judge said the following, just before his conclusion that he was not satisfied that Mrs Lam had testamentary capacity:

[456] Finally, whilst there was no medical evidence on the question of the deceased’s condition on the day the 2019 Will was executed, I have earlier referred to the competing medical evidence, which, even at its most favourable to the Defendant, reveals a “concern” by Professor Brew about the deceased’s capacity.

  1. His Honour appears to have treated the medical evidence as not supportive of, but rather as tending to undermine, the argument that Mrs Lam had testamentary capacity. That conclusion was not consistent with an assessment of the medical evidence as a whole, which suggests that Mrs Lam probably did not have significant cognitive problems around the time when she made her will. When Professor Brew said was that “there can be some concern given those factors that we've agreed upon earlier”, the “concern” was in distinction to having a “doubt”, which was “too strong a phrasing of it” (see above at [87]). In other words, he acknowledged that there was a possibility that various factors affecting Mrs Lim could possibly have caused her cognitive difficulties, but there was nothing to suggest that they had in fact done so. That conclusion is consistent with the evidence as to what occurred on 16 October 2019, which, as explained above, supports a finding of testamentary capacity.

The possible language difficulty

  1. The issue of language is of particular importance to the question of knowledge and approval but the primary judge also took it into account on the capacity question. His Honour’s conclusions were as follows:

[452] The Court may accept that Ms Li’s interpretation was adequate to convey the substance of what was said, and written, by Mr Lee, and what was said by the deceased, and that being a NAATI interpreter had accurately and faithfully interpreted what she was required to interpret. However, there remains the unanswered question concerning whether there was a linguistic understanding, by the deceased, of the concepts interpreted in the Mandarin Chinese language when it is more likely than not, that the deceased’s principal language of choice was Hainanese.

[453] Because of the contents of Mr Lee’s diary note, it is also more probable than not, that the deceased understood at least some of what Ms Li was interpreting to her in Mandarin Chinese, sufficient to convey the instructions to Ms Li and repeated by her to Mr Lee. Yet, even if the accuracy of the interpretation were accepted, the discussion does not provide an adequate basis for drawing a conclusion in favour of the deceased having testamentary capacity.

  1. Boon called an expert witness, Dr Hui Ling Xu, a linguist and specialist in Chinese languages. She described Hainanese, Cantonese and Mandarin as “mutually unintelligible”.

  2. Boon deposed that his mother did not know Mandarin “other than very basic words including ‘hello, goodbye, yes and no’”. He said the same in respect of her knowledge of English. He said she “had very basic knowledge of spoken Cantonese and Hokkien”.

  3. Alice deposed as follows:

My mother in law and I spoke a patois of Teochew, Hainanese, Hokkien and Cantonese as I am not a fluent speaker of Hainanese and speak Teochew as my native language. Through long usage and because we knew each other so well, we understood each other. She did not speak or understand more than a few words of Mandarin and could not have understood anything complex said to her in Mandarin. All her social life with her friends was conducted in Hainanese.

  1. Ms Han gave evidence that she knew her sister “to have very limited knowledge of the Mandarin and Cantonese language” and that she did not “believe she could understand more than very basic conversations”. She further deposed: “[w]e have never communicated with each other or other members of the family in Mandarin”.

  2. Sony’s evidence about talking to her mother was “I speak multi language, well we speak the Hainanese, Cantonese and Mandarin, so this is for the last 50 odd years. That’s what we normally do at home, conversation at phone, so that’s what we’ve been speaking”. He disagreed with the suggestion that his mother spoke very little Mandarin. Lily’s evidence was similar, saying she spoke with her mother in Hainanese or Mandarin (denying that her mother spoke only a little of that language), and that Mrs Lam could also speak Cantonese but only limited English.

  3. There is thus conflicting evidence as to the extent of Mrs Lam’s abilities to speak Mandarin. Nevertheless, as noted, the primary judge accepted that “the deceased understood at least some of what Ms Li was interpreting to her in Mandarin Chinese, sufficient to convey the instructions to Ms Li and repeated by her to Mr Lee”. The issue is whether the linguistic difficulty was such that it casts doubt on Mrs Lam’s understanding of what was being communicated and done. I am persuaded that Mrs Lam did understand the substance of what was being communicated and done and that the linguistic issues do not undermine her testamentary capacity.

  4. The evidence of Ms Li and Mr Lee is significant in this regard. Mr Lee explained:

So, after the initial greetings, I made, I asked the interpreter, Mei, to make sure she was familiar with the deceased and could understand her, and that the deceased could understand or they could understand each other, which she did from, and told me she was satisfied, so I was happy to proceed.

  1. Mr Lee also gave evidence that Mrs Lam responded to his questions, and did not say that she did not understand what was occurring. Nor did he observe the interpreter have to “repeat herself repeatedly”. He indicated that it took about 1.5 hours for him to take instructions and for the interpreter to go over the will.

  2. As for Ms Li, she did not specifically recall the conference with Ms Lam, but gave the following evidence of her usual practice:

Q. As an interpreter, what's your usual practice if someone's having difficulties understanding you?

A. I would have immediately alerted to, alert that to the solicitor in that instance, and then I would have requested withdrawing from my, my job.

Q. You didn't do that on this occasion, that is on 16 October?

A. No. No.

  1. Such a practice is what would be expected of a professional interpreter. Had Ms Li struggled to convey information between Mr Lee and Mrs Lam and vice versa, over a significant period of time, she would have raised this with Mr Lee. She did not do so. It is implausible that Ms Li spent hours interpreting for Mrs Lam – including information about excluding Rose, about the possible family provision claims of both Rose and Boon, about what the draft will meant, and about Mrs Lam’s desire to have her children called in – yet that Mrs Lam was not able to communicate her wishes or understand what was put back to her, and that all of this occurred without Ms Li realising this and telling Mr Lee.

The possible hearing difficulty

  1. Mrs Lam had difficulty hearing and was prescribed hearing aids. She did not, however, use her hearing aids at the conference. Boon’s evidence was that his mother disliked using her hearing aids “as they made an unpleasant feedback noise”. The evidence suggests she almost never wore them.

  2. The significance of this to the conclusions of the primary judge on either testamentary capacity or knowledge and approval is not clear. His Honour merely said in his concluding analysis that “I have earlier referred to the fact that the deceased was not wearing her hearing aids when she attended the conference” (at [454]). In my view this possible difficulty is not of any real significance to either issue.

  3. An audiologist, Dr Chandra, was called by the respondent. Dr Chandra never saw Mrs Lam, but based her evidence on hearing tests conducted on Mrs Lam on 2 November 2018. She explained that, based on these tests, Mrs Lam “had a moderately severe to severe degree of hearing loss”. It was her view that having “a conversation in a quiet solicitor’s office with only two or three people including her” would be “challenging”. She noted that Mrs Lam’s ability to hear and engage in conversation would depend on various factors including volume, speed, distance from other people and so on. She said that with “the severity of her hearing loss, with her hearing aids it’s nearly impossible for her to be able to have a, a proper sound conversation over a telephone”.

  4. No doubt Mrs Lam suffered from a significant hearing impairment. Yet the fact is that Mrs Lam got through life without using her hearing aids, as do many people with hearing difficulties. Notably, her sister Ms Han testified that “Daisy and I would speak to each other by telephone from 7pm – 8pm almost every night”, a point which may be contrasted with Dr Chandra suggesting that to do so was nearly impossible. Mrs Lam’s instructions were taken in a conference room with only Mr Lee and Ms Li present. It can be presumed that only one person would speak at a time. Mr Lee indicated that he did not observe Mrs Lam having difficulty hearing and, as noted, the interpreter did not have to repeat herself repeatedly. Mrs Lam’s hearing difficulties do not count against a conclusion either that she had testamentary capacity or that she knew and approved the contents of her will.

The change in disposition to Boon

  1. There was little evidence of the reasons for the change in Mrs Lam’s testamentary intentions, in particular as regards Boon. There is no doubt that the change was significant, as under the 2011 Will Boon was to have inherited a 62% share of most of the estate, had a right to reside in the Burwood residence for five years, and a right to buy it at a market price. Under the 2019 Will he obtained a 25% share of the whole estate, with no right to reside in or purchase the house.

  2. Boon explained that he and his mother “did have conversations on multiple occasions where she mentioned that she had made a will and that it allowed for me to continue to live in the Burwood property after she passed away”. And Ms Han deposed as follows:

[10] During our telephone conversations, Daisy mentioned on many occasions that her son Boon and his wife Alice constantly supported, cared and provided for her and that she would leave him a big share of her estate to thank him for always caring for her.

[11] Before her death, Daisy said to me during one of our telephone conversation words to the following effect:

‘I am lucky to have my eldest son who has looked after me for so many years, he takes me to the doctors and supports me at home. If I make a will, I have to give a big share to Boon because he has looked after me’.

  1. She also explained that Mrs Lam “mentioned that Boon deserved a bigger share than his siblings” and that “she intended on Boon living in the property… after she passed away”. She repeated this evidence in cross-examination, and seemed to suggest that these conversations had occurred even in 2019, although the timing was somewhat unclear from her evidence.

  2. As noted, this change in disposition appeared to be the most significant factor leading the primary judge to doubt Mrs Lam’s testamentary capacity. I accept it is a relevant factor, but do not place the same weight on it that his Honour did. I do not find it so surprising that she might have changed her mind, near the end of her life, to favour a simple, equal distribution between her four non-estranged children. That is a commonplace form of will. Whilst it is evident that Boon and Alice played a lead role in looking after her, the other children played a role too. It is notable, for example, that Lily had stayed with her over the three nights she was in hospital prior to making the will (as noted, there is no suggestion that Lily had sought to influence the making of a new will). Boon himself said, when asked if his mother had got on with Lily, Ping and Sony, that “Mum got along with everyone”.

  3. It is not the role of the court to judge the wisdom or merits of the testator’s decisions. The right of disposition belongs to the individual to be exercised as they please, subject, notably, to the potential constraints of statutory claims for provision under Ch 3 of the Succession Act 2006 (NSW). As Gleeson CJ said in Re Estate of Griffith (at 291):

there may be cases in which one person’s estimation of another’s claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.

  1. Thus, as the primary judge correctly noted at [444], “a will-maker is not required to justify any change in testamentary dispositions whether to her, or his, solicitor, or anyone else in order to prove that she, or he, has testamentary capacity”. Here, as noted above at [82], the evidence indicates that Mrs Lam understood she was changing her will. And whilst Mrs Lam did not explain her change of heart, she did make sure that the change was brought to the attention of her children, including Boon, prior to the will being executed. She thus gave him a chance to protest. He did not take that opportunity (which he denied had been given). The fact that he did not protest suggests that at the time he thought it appropriate to respect his mother’s wishes, a choice which does not support his subsequent claims that she lacked testamentary capacity.

Conclusion in respect of capacity

  1. In summary:

  1. Mrs Lam was 89 years old and recently out of hospital when she made her will. She was no doubt tired and in some pain. But those facts of themselves do not establish that she did not have testamentary capacity.

  2. It was not disputed on appeal that Mrs Lam understood the significance of making a will.

  3. She only had one asset of any significance, and given her determination to make a new will and to ensure her three children present at the conference understood what she was doing, there is good reason to infer she had the capacity to understand the extent of her property.

  4. Her choice to exclude her eldest daughter and to make equal provision for her other four children, despite being warned that both Rose and Boon might be able to make family provision claims, manifests a purposeful consideration of the main potential objects of her bounty, and demonstrates her capacity to consider that issue. So, too, does the fact that she had her proposed disposition explained to her children, giving them a chance to object, prior to executing the will. Other surrounding circumstances also support a conclusion that she had capacity to address such issues.

  5. The medical evidence, taken as a whole, does not suggest that she was unlikely to have sufficient cognition on 16 October 2019 to address these issues.

  6. Neither the fact that Mandarin was not Mrs Lam’s main language, nor the fact that she was not wearing hearing aids despite her significant hearing impairment, suggests that she lacked capacity properly to understand what was occurring on that day.

  7. Whilst the change in the disposition made to Boon was significant, the fact that Mrs Lam gave all of her children present the chance to raise a concern about this – a chance Boon did not take up – suggests that she understood the nature and importance of the choice she was making.

  1. For these reasons I am comfortably satisfied that Mrs Lam had testamentary capacity when she made her 2019 Will.

Knowledge and approval

  1. The primary judge’s reasoning (at [458]-[461]) in respect of the question of knowledge and approval was brief. His conclusions essentially drew on his reasoning in respect of the question of capacity.

  2. The concerns about language and Mrs Lam’s hearing each raised a question about whether Mrs Lam understood and approved the contents of her will. Those issues have been addressed above. Moreover, as noted above, the simpler the will, the more readily it can be said that a testator knows and approves of its contents. Here, the will was very simple. I am satisfied that Mrs Lam did understand the contents of the will, understood its effects and approved its contents.

Orders

  1. The appeal should thus be upheld. As for costs, in the Court below the primary judge gave effect to the parties’ agreement that each side’s costs be paid out of the deceased’s estate in identified amounts. In this Court it was submitted that those orders should not be disturbed but that costs of the appeal should follow the event. There is no reason for this Court to depart from that proposal.

  2. The orders of the Court should be as follows:

  1. Appeal allowed.

  2. The orders of the Supreme Court made on 14 April 2022 are set aside, save for the orders dealing with costs, and in lieu thereof:

  1. Declare that the original of the document dated 16 October 2019 in respect of which the Court did, on 28 September 2020, make a grant of probate in common form constitutes the last will and testament of the late Daisy Ut-Mui Lam.

  2. Order that a grant of probate of that will in solemn form be made to the defendant.

  1. The respondent is to pay the appellant’s costs of the appeal.

  1. GRIFFITHS AJA: I have had the benefit of reviewing Kirk JA’s reasons in draft. I agree with his Honour’s reasons and the orders he proposes.

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Decision last updated: 01 May 2023

Most Recent Citation
Cases Citing This Decision

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Wild v Meduri [2024] NSWCA 230
Cases Cited

22

Statutory Material Cited

1

Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 36
Carr v Homersham [2018] NSWCA 65