Manning v Hughes; Estate of Ludewig

[2010] NSWSC 226

CITATION:	Manning v Hughes – Estate of Ludewig [2010] NSWSC 226
HEARING DATE(S):	1, 2 and 3 March 2010
JUDGMENT DATE :	26 March 2010
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Refer to paras 68-71 of judgment.
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION – application for grant of probate – testamentary capacity – where deceased made earlier will in different terms – where deceased made later will when suffering from dementia – onus remains with person propounding will – deceased lacked testamentary capacity when making later will – probate granted to earlier will
CATEGORY:	Principal judgment
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Kerr v Badran [2004] NSWSC 735 Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 Bailey v Bailey (1924) 34 CLR 558 Read v Carmody (Court of Appeal, 23 July 1998, unreported, BC9803374) Briginshaw v Briginshaw (1938) 60 CLR 336 Worth v Clasohm (1952) 86 CLR 439 Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284
TEXTS CITED:	Charles Rowland, Hutley’s Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths
PARTIES:	Plaintiff: Robert Manning 1st Defendant: Barbara Hughes 2nd Defendant: Mardi Cochran 3rd Defendant: Christine Hughes
FILE NUMBER(S):	SC 2008/294398
COUNSEL:	Plaintiff: L Ellison SC Defendants: J Needham SC
SOLICITORS:	Plaintiff: Clinch Long Letherbarrow Defendants: Wills & Estates Legal Service

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 26 March 2010

2008/294398 Robert Manning v Barbara Hughes & Ors – Estate of the Late Gwendoline Mary Ludewig

JUDGMENT

1 HIS HONOUR: This is an application for probate of a will dated 12 July 2006 of Gwendoline Mary Ludewig. Mrs Ludewig died on 23 January 2008. She was a widow and had no children. By her will of 12 July 2006 she appointed her brother Robert Manning as her executor and left her estate equally between her two brothers, Robert and Brian Manning, and her sister, Barbara Hughes.

2 The defendants in the proceedings are Mrs Barbara Hughes (by her tutor) and Mrs Hughes’ daughters (Mrs Ludewig’s nieces), Ms Mardi Cochran and Dr Christine Hughes. They dispute the validity of the 2006 will on the ground that the deceased lacked testamentary capacity. They seek probate of an earlier will dated 3 September 1992. Under that will Mrs Ludewig appointed her sister Barbara Hughes and her niece Mardi Cochran as executrices. She left pecuniary legacies of $10,000 to each of her brothers, made a specific bequest of the contents of her house in Parkland Place, Thornleigh, to her sister Barbara, and gave half of the residue of her estate to her sister Barbara Hughes, one-quarter to her niece Mardi Cochran, and one-quarter to her niece Christine Hughes. Mardi Cochran seeks an order that she be appointed as executrix. Barbara Hughes does not have capacity to be appointed executrix.

3 In affidavits in support of the applications for the grant of probate, Robert Manning and Mardi Cochran deposed that the deceased’s estate had a net value of $2,728,441. This comprises her house at Thornleigh estimated to be worth $500,000, bank accounts and term-deposits with the Commonwealth Bank of Australia of over $500,000, shares in five public listed companies valued as at 5 March 2008 at a little over $175,000 and Mrs Ludewig’s interest in two properties in Randwick and Double Bay which she inherited under a will of her long-time companion, friend, and cousin by marriage, Mr Harry Mussett. Mr Mussett died on 25 July 2007.

4 There is no issue that if Mrs Ludewig lacked testamentary capacity to make a will on 12 July 2006, the 1992 will should be admitted to probate.

5 The reason for Mrs Ludewig having made her 1992 will in the terms she did may have been due to a falling-out between her and her sister Barbara on the one hand, and their brothers on the other, in relation to the estate of another sister, Helen, who died in about 1969. According to Christine Hughes, her mother was so upset about steps taken by Robert and Brian Manning with regards to Helen’s estate that she had no contact with them for the next 40 years. Mrs Barbara Hughes, and her daughters Mardi and Christine, remained close to Mrs Ludewig. Either for that reason or perhaps because, as Mrs Ludewig told her niece, Ms Cochran, she considered that her brothers were well-provided for, or perhaps for some other reason, in her earlier will, Mrs Ludewig made little provision for her brothers. The reasons for that do not matter. But it is not a suspicious circumstance that calls for added vigilance that 14 years later Mrs Ludewig may have decided that she wished to leave her property equally to her closest relatives.

Position up to Admission to Glen Lynn Nursing Home

6 Up to 16 March 2005 Mrs Ludewig lived by herself at her house in Thornleigh. On 16 March 2005 she had a fall and was admitted to Hornsby Hospital. After being discharged from Hornsby Hospital she spent time in a rehabilitation hospital known as Lady Davidson. On 14 April 2005 she was assessed by an Aged Care Assessment Team (“ACAT”) consisting of a nurse manager and social worker. They approved her being provided with low-level residential respite care. She was placed for respite care at Yurana House. This admission was primarily to control back pain from which she suffered. Her general practitioner, Dr John Warneford, and his partner, had treated her from the early 1970s. Dr Warneford said that the main reason she went to the Yurana House was because she had spinal stenosis in the lumbar region, she was not able to manage dressings for ulcers on her legs.

7 Ms Cochran gave evidence that from about 2004, she observed signs in Mrs Ludewig of what she called dementia. Her mother, Barbara Hughes, has suffered from dementia from about 2002. Ms Cochran deposed that from about 2004 she observed that her aunt stopped discussing current affairs as had been her wont, although she still looked at magazines. She stopped cooking for herself and stopped eating properly. Ms Cochran deposed that from the time of Mrs Ludewig’s fall when she was in hospital and then moved to Leighton House (which I take it is a nursing home or a rehabilitation centre near Lady Davidson Hospital) Mrs Ludewig repeated herself without recalling that she had said the same thing, or asked the same questions over and over, did not remember the fall or the “blackout” that initially put her into hospital, and was paranoid about the key to her house. She deposed that from 2004 her aunt was forgetful. For example, she would ask whether Ms Cochran would like coffee or tea, and be distracted by someone else talking and forget to put the jug on. She would repeat herself by saying something like “Mardi, I want you to have this special jug”, (or some other household item). Ms Cochran would reply “Thank you, but keep it here until later and I could have it then”, and about ten minutes later Mrs Ludewig would repeat the offer using the same words. Ms Cochran also observed that her aunt showed less interest in her appearance from around 2004. Dr Hughes said that when she visited Mrs Ludewig in Leighton Lodge in 2005 (that is after the fall and being discharged from Hornsby Hospital) Mrs Ludewig was confused and would repeat questions over and over again.

8 Mr Robert Manning was cross-examined about his perception of his sister’s mental condition after her fall and admission to Hornsby Hospital and before her admission to the Glen Lynn Nursing Home. It was his evidence that he noticed no short-term memory problems and no confusion about dates or times and no indication that she did not recognise people she knew well (T14).

9 A meeting was convened with Mrs Ludewig at Yurana House on 22 June 2005 at which were also present Dr Warneford, Mrs Ludewig’s sister Barbara Hughes, her brother Robert Manning, Mr Harry Mussett, Sister Susan Baker and Ms Kylie Danks, who was the ACAT case co-ordinator who prepared the report of 14 April 2005. The purpose of the meeting was to encourage Mrs Ludewig to accept permanent hostel placement at Yurana House. Dr Warneford stated in a report of 24 June 2008 that at that meeting:

“ Gwen remained in control and discussed and debated with all parties the issues and the reasons she would not agree to placement. I was most impressed with her reasoning and clear understanding of what was at stake. The meeting lasted over 1 hour. Gwen wanted to remain independent and did achieve this outcome.

Following the meeting Gwen was placed in the Dorothy Henderson Village at Marsfield. I last saw her there on 19/8/05 for shoulder pain. She was clear in her mind on the next phase of her life at Harry Mussett’s unit at Double Bay. She was transferred there on 21 August 2005. ”

10 After that consultation Dr Warneford lost contact with the deceased. Mrs Ludewig was then 83. Dr Warneford reported that Mrs Ludewig had poor short-term memory and poor insight. Her poor short-term memory manifested itself to him primarily in failing to carry out treatment programs. She made notes of appointments and notes of treatment guidelines to deal with her memory defects, but his greatest concern was her ability to remember to take her medications (T79). Her short-term memory problems had become manifest a few years before (T84). He considered that her insistence in August 2005 that she would attempt to live independently in the community by living in Mr Mussett’s unit was indicative of poor insight as she was physically not able to cope (T84). Although Mrs Ludewig insisted on moving to Mr Mussett’s unit, that decision showed no insight into her medical condition. She needed nursing home care. She could not bend down to attend to her dressings. Her right shoulder gave her serious pain. She had a disability with her back, apart from any mental problems. She was also incontinent of urine.

11 Dr Warneford considered that Mrs Ludewig had been able to deal with the major changes taking place in 2005 after her fall, and he was considerably impressed with her ability to articulate and debate the issues concerning whether she should accept permanent hostel accommodation, although he did not agree with her decision not to accept such accommodation at that time and regarded her decision as indicative of poor insight into her medical condition. Based on his observations of his patient he said:

“ ... I would have expected Gwen to manage her affairs and her will, over the next few years, the way she wanted. This level of cognition would be expected in spite of her short-term memory impairment. ”

He also said that in his view:

“ If her level of cognitive function was largely retained, Gwen would have a good idea of her assets, would know who should benefit, would know those she should consider and how to reverse these decisions. ”

12 This was so notwithstanding that by this time in 2005 Mrs Ludewig was showing signs consistent with suffering early dementia. The ACAT assessment of April 2005 raised a query as to whether Mrs Ludewig was suffering early dementia. It also noted that she always exhibited short-term memory problems, occasionally exhibited long-term memory problems, and was regularly disoriented as to time. Dr Warneford said that being disoriented as to time could be not knowing the date or the month or the year or the hour of day or the season, and if a patient consistently provided a wrong answer, he or she would be assessed as being disoriented as to time. The ACAT report that Mrs Ludewig was disoriented as to time was consistent with his observation of her (T87). That did not mean that he considered her incapable of making testamentary dispositions.

13 I was favourably impressed with Dr Warneford. His evidence was balanced and carries considerable weight. He acknowledged that the symptoms he observed of short-term memory loss, disorientation and poor insight were consistent with the onset of dementia. But it does not follow that merely because a patient might be so diagnosed, it should be concluded that the patient does not have the capacity to understand the act of making a will, or to appreciate the general nature of his or her assets, or to identify those with a claim on his or her testamentary bounty and have the ability to evaluate the respective strengths of such claims.

14 Were the question of the deceased’s testamentary capacity to be assessed prior to her entry to the nursing home, I would accept Dr Warneford’s opinion and find that she had such capacity.

Admission to Nursing Home

15 Mr Mussett suffered an accident in September 2005. On 6 September 2005 Mrs Ludewig was admitted to a nursing home at Auburn called Glen Lynn. The nursing home was owned by Mr Mussett. Mrs Ludewig remained a resident of the nursing home until her death in January 2008. From the time of her admission to the nursing home, Mrs Ludewig was under the care not only of the nurses in that facility, but of a general practitioner who looked after residents in the nursing home, Dr Yusef Bulbulia. Dr Bulbulia provided a report dated 29 May 2008 but it seems, had no other recollection of the deceased. He reported that after her admission to the Glen Lynn nursing home, Mrs Ludewig was observed to have mild dementia which became progressively worse until her death on 23 January 2008. Dr Bulbulia signed the death certificate for Mrs Ludewig which noted in the section for “cause of death and duration of last illness”:

“ (I) (a) Cardial failure, 15 days
(b) Atrial septal shock , 10 years
(II) Dementia, 1 year ”

Dr Bulbulia did not give oral evidence.

16 The defendants submitted that by the time the deceased signed the purported will on 12 July 2006 she suffered from dementia to such a degree that she lacked testamentary capacity. Although Dr Warneford made no formal diagnosis of dementia, he considered that Mrs Ludewig was getting a “very slowly progressive dementia”. The question in this case is whether by July 2006 Mrs Ludewig’s cognitive function had become so impaired that she lacked testamentary capacity. That is, whether she understood the nature of the act of making a will, and its effects, understood the extent of the property of which she was disposing (although that does not necessarily mean knowing each particular asset or even a particular class of assets, let alone its value), and was able to comprehend and appreciate the claims on her estate to which she ought to give effect (Banks v Goodfellow (1870) LR 5 QB 549 at 565; Kerr v Badran [2004] NSWSC 735 at [49]; Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 705-707; Harwood v Baker (1840) 3 Moo PC 282 at 290-291; 13 ER 117 at 120; Bailey v Bailey (1924) 34 CLR 558; Read v Carmody (Court of Appeal, 23 July 1998, unreported, BC9803374).

17 In Read v Carmody, Powell JA, with whom Meagher & Stein JJA agreed, said (at 2-3):

“ ... all formulations seem agreed that ‘testamentary capacity’ encompasses the following concepts:

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

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

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

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

The necessary corollary of this is that, if, at the relevant time the testator - or testatrix - is found to suffer from a condition - whether ‘mental illness’ (or psychosis) in the strict sense or any other form of ‘mental disorder’ (including, but not limited to, deterioration in higher intellectual function or dementia) - which detrimentally affects his - or her - consciousness or sense of orientation, or has brought about disturbances to his - or her - intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator - or testatrix - will, more probably than not, be held to lack testamentary capacity. ”

18 I do not understand his Honour to say that any mental disorder affecting higher intellectual functions, intelligence, cognition, thought content, thought processes or judgment will result prima facie in testamentary incapacity. The mental disorder must be such as to prevent the testator from being aware of and appreciating the four matters drawn from Banks v Goodfellow. The onus is on he who propounds the will to establish that the testator had testamentary capacity where an issue of the capacity arises. In Banks v Goodfellow itself the testator’s delusions did not mean that he lacked testamentary capacity, because the delusions were unconnected with his testamentary dispositions.

19 The defendants say that both the deceased’s physical and mental abilities declined significantly after her entry to the nursing home. That was not Mr Robert Manning’s opinion. When asked about Mrs Ludewig’s mental abilities at the end of 2005 when she was in the Glen Lynn nursing home, he said that he neither recalled her ever saying the same thing twice in a short period of time, nor recalled her becoming confused or asking where she was, or not recognising people, or forgetting things that she had just said (T26). He also said that in the first half of 2006 he observed a deterioration in her physical condition but not in her mental condition (T30). He had intermittent physical visits but regular telephone contact. Mr Brian Manning observed “very little” deterioration in Mrs Ludewig’s mental state from the time of her fall and admission to Hornsby Hospital and the next six or eight months (that is, to September to December 2005). He did not recall her repeating the same question over and over although he accepted that she would occasionally forget having told him something and repeat it. He did not notice that she was worse in Glen Lynn than she had been beforehand (T74). He did not notice that she had any confusion about what day it was or what time it was or remember difficulties with her long-term memory (T74).

20 Mr Robert Manning said in cross-examination that in 2005 the topics he discussed with Mrs Ludewig were those in the newspapers, that he talked about the fact that Mrs Ludewig never read library books, but always read the ladies’ magazines, that they spoke about her home and its condition and his visits to her home because he was maintaining it for her, the weather, her own physical health, and her finances (T28-29). In relation to her finances, Mr Manning said that they discussed the terms for which term deposits should be rolled over, for example, whether to roll over a term deposit for five months instead of three months because of interest rate differentials. He said that by the end of June 2006 Mrs Ludewig’s mental condition seemed to be the same as when she first entered the nursing home (T36), and that although she had some memory loss it was extremely slight (T36).

21 Ms Cochran and Dr Hughes depicted a different picture of their aunt after her admission to the nursing home. Ms Cochran visited her aunt at least once a month with her mother and spoke to Mrs Ludewig on the phone at other times when she first moved to the nursing home. She said that later in 2006 there was no point in phoning Mrs Ludewig as she was not able to make sense of what was going on via the phone. She did not recognise who was on the phone, nor carry on any meaningful conversation. She confused Ms Cochran with Mr Mussett. Ms Cochran deposed:

“ 22. From the time Gwen went to the nursing home Gwen and my mother would both repeat the same questions and sentences, to each other, over and over again without realising they had already said these things. For example, Gwen would say: ‘I don’t know why I am here and I will be going home soon.’ Or she would say: ‘I have only been here for a little while’ when in fact she had been there for a year or more. Gwen always recognised us and was pleased to see us, but she was very frail and forgetful. Very soon after she moved to the nursing home she said things like: ‘Someone here is stealing my underpants’ or ‘someone here has taken my clothes’. Often the things that she thought had been taken were on top of her drawers. She would always offer us things from her room as well. For example, if we took her flowers or [a] special treat to eat she would want to give them back to us as a gift, forgetting we had actually given them to her. She would also offer us gifts that other people had given her, which we kindly refused. She had forgotten that they had been given to her. She would forget where she put things such as her comb, clothes, tissues, etc. She also forgot that Christine had twins and she could not remember their names. When my mother asked her about what she did during the day she was unable to remember what she did.
23. When Gwen entered the nursing home she had no idea she would not be able to go home and live on her own again as she would often say to me ‘when I go home I want to give you ...’ and I would say ‘do you want to give me the key and I will check on the house for you’ to which she would reply ‘no it will be fine, I will be home soon and I can do it’.”

22 Dr Hughes saw Mrs Ludewig less frequently because of her commitments to her family (her twins were born in early 2005) and her medical practice. She is a paediatrician and the nursing home at Auburn was not close to where she lived and worked. Dr Hughes deposed:

“ 13. Gwen was always happy to see us but her conversation skills were becoming very limited. We all usually went into Harry’s room (which was bigger) and Mardi and I talked about what we had been doing and the twins were always a great distraction. We also chatted with Harry but Gwen’s conversation was always limited to topics such as the weather as she couldn’t really follow a conversation. It was obvious to me (as I was going through the dementia process with my mother) that Gwen also had dementia which was progressing. For instance, Gwen would say: ‘I’ve only been in the nursing home a short while’ when in fact she had been there much longer. She said: ‘I’ll be going home again soon’ and: ‘I don’t know why I am here’. She was unable to understand that she was too frail and her dementia was too far advanced to be able to go home. While she was a resident in the nursing home, Gwen would ask the same questions over again – such as ‘how old are the girls?’ and she could not remember their names. ”

23 Neither Ms Cochran nor Dr Hughes was cross-examined on this evidence. Their evidence is corroborated by the nursing home notes and by a further ACAT assessment carried out in September 2005.

24 Mrs Ludewig was admitted to the Glen Lynn nursing home on 6 September 2005. Notes for the following day record her being oriented to activities of daily living in the morning. But a nurse’s note written that night recorded that Mrs Ludewig was disoriented as to place and had to be redirected three times to find her way to her room. The nursing home notes on admission accurately recorded the reason for her admission as being that she was unable to look after herself. The nursing notes make repeated reference to Mrs Ludewig saying that she was ready to go home, meaning, presumably, to her home at Thornleigh, and sometimes packing her clothes in order to do so (e.g. entry for 15 September 2005). An entry for 16 September 2005 records a nurse telling Mrs Ludewig that it was unsafe for her to go home, but her saying that she would manage well and that the nurse should tell Mr Mussett or anyone not to make any arrangements for her. Her stated wish to go home continued well after she had settled into the nursing home and was not a temporary phenomenon that might be attributed to her having been moved from place to place frequently in 2005, with the disorientation that might entail on her admission to the nursing home. An experienced geriatrician, Dr Rosenfeld, who gave expert evidence for the defendants, said that such a lack of insight into her own condition and needs was characteristic of frontal lobe disease indicating significant cognitive impairment.

25 The further ACAT assessment was carried out between 7 and 12 September 2005. The assessment was carried out by a nurse manager and a social worker, although not the same people who carried out the April assessment. In this case the ACAT identified the principal health condition that had the greatest impact on Mrs Ludewig’s need for assistance with activities of daily living and social participation as being early dementia. They recorded that as well as always suffering short-term memory problems, Mrs Ludewig regularly exhibited long-term memory problems, was occasionally confused, was regularly disoriented as to time, was occasionally disoriented as to place, and was regularly disoriented as to “other people”. The report also stated that Mrs Ludewig was occasionally verbally aggressive. If so, such behaviour was unusual and out of character (T86). There is no indication in the nursing notes of any such behaviour. As Dr Warneford said, that entry might denote some disagreement between Mrs Ludewig and those carrying out the assessment. But I do not think it affects the balance of the assessment.

26 The persons making the assessment were not called and there is no detail of the grounds upon which the assessment was made, except as appears in sections headed “Specific details relating to functional and activity profile” and “assessment comments”. Included in the comments were the following:

“ Needs assistance with personal care, prompting and supervision to change continence pads and toileting. Independent with transfers and eating. Full assistance with domestic chores, cooking. Poor short-term memory, confused at times. Disoriented to time and place.

... 83 year-old lady living in her own home until early this year when she was admitted to hospital with rotator cuff injury – transferred to low level respite [care] from hospital but wished to go home so taken to friend’s place with care provided from a private nursing agency. Still not coping so admitted to Glen Lynn NH. Patient now high level care due to incontinence and cognitive/behavioural problems. Patient still wishes to return to friend’s place but is agreeable to nursing home care if this is not possible. ”

27 I do not propose to set out in these reasons all the relevant nursing notes. As was submitted for the plaintiffs, some of the notes indicated that Mrs Ludewig appreciated her medical condition or were consistent with her doing so. Counsel for the plaintiffs referred, by way of example, to a note of 5 December 2005 which records of Mrs Ludewig:

“ Upset this evening. She went to her room early. She said Mr Mussett told her that she can’t go home because no-one can look after her when she goes home. Reassurance given ... ”

28 I would infer that on that day Mrs Ludewig did appreciate that she would not be able to return to her home. However, she later lost that appreciation. For example, in May 2006 she was referred to an orthopaedic specialist, Dr Quain, because of the pain in her right shoulder. Dr Quain reported that Mrs Ludewig stated that she intended to get back to her own home. There was no realistic prospect that she could do so.

29 On his review of the nursing notes, Dr Rosenfeld identified various matters which indicated to him that Mrs Ludewig had “significant cognitive deficits and dementia”. Some of these have more significance than others. For example, the nursing notes from time to time refer to Mrs Ludewig refusing to wash or have a shower despite the nurses’ encouragement. Dr Rosenfeld commented that this demonstrated that she was resistive and insightless. It might be inferred from other notes that her reluctance was due to her either feeling cold (e.g. entry for 29 May 2006) or because of the pain in her right shoulder.

30 Dr Rosenfeld referred to entries for 14 and 20 October 2006 recording that Mrs Ludewig refused to go out with Mr Mussett, or was hesitant to do so at first, but was eventually persuaded to do so. He said that this indicated that the dementing process had become so severe that Mrs Ludewig was refusing to go out with Mr Mussett, presumably because she did not recognise him. There is nothing in the notes to justify the conclusion that the reason for her refusal or her initial hesitancy to go out with Mr Mussett was because she did not recognise him.

31 The notes refer to Mrs Ludewig’s repeatedly locking her door fearing that other people were standing by the door. Dr Rosenfeld commented that this might indicate paranoia which would probably be related to progressive dementia. However, Mr Robert Manning’s evidence was that there was another resident of the nursing home who stood in the doorway and whose presence was unsettling. The staff warned Mrs Ludewig that it was dangerous for her to lock her door at night as the nursing staff were then unable to check her wellbeing. I would not regard the fact that from time to time she evidently rejected that advice as in itself indicative of paranoia or dementia.

32 There are other comments in the nursing notes which Dr Rosenfeld considered indicated that Mrs Ludewig suffered from moderately severe dementia which cannot be explained in these ways. These included a note on 6 October 2005 that Mrs Ludewig needed prompting to initiate and to complete activities of daily living due to her short and long-term memory loss. The nurses’ notes corroborate Ms Cochran’s evidence that Mrs Ludwig from time to time complained that her clothes or other belongings had been stolen when in fact the things she was looking for were there. Diary notes of 14 March 2006 refer to Mrs Ludewig’s receiving a phone call from Mr Mussett but forgetting later on during the shift that she had spoken to him, consistent with her short-term memory loss. Other entries refer to her confusion and forgetfulness in thinking that she had not had meals when in fact she had, or saying that she had been asleep at times when the nurses knew she had been awake and had talked to them. The nursing notes also refer to Mrs Ludewig’s hoarding of rotten fruits, dirty nighties, soiled incontinence pads and paper hand towels in her cupboard drawers. This was a long-running issue. It was suggested for the plaintiff that this behaviour might be explained either by Mrs Ludewig being embarrassed, or perhaps by her frugality in believing that the incontinence pads could be reused. Dr Rosenfeld was rather of the view that this behaviour indicated a lack of insight, understanding and social propriety which is characteristic of frontal lobe disease. I accept Dr Rosenfeld’s opinion on this.

33 The nursing notes also refer to Mrs Ludewig reading magazines and newspapers, but contain no comment from which one might deduce to what extent she comprehended what she read. Ms Cochran said that from about 2004 Mrs Ludewig continued to look at magazines, but stopped discussing the current affairs issues. The notes also state that Mrs Ludewig was able to speak well and make her needs and desires clear to the nursing staff.

34 The plaintiff relied upon a report of Professor Reid, a clinical neuro-psychologist. Both Professor Reid and Dr Rosenfeld have impressive qualifications and experience. It was Professor Reid’s opinion that considering Mrs Ludewig’s age, medical history and consistent reports of short-term memory problems, it seems likely that she had early Alzheimer’s disease, but he was of the opinion that the severity of her dementia was not sufficient to render her incapable of making her will and understanding and appreciating the various claimants upon her testamentary bounty. He was of the view that due to the complexity of Mrs Ludewig’s assets, she may not have been fully aware of the extent or value of her assets at the time of making her will, but said that many people, particularly elderly people, did not know the value or even the identity of all of their assets and some have handed over the management of share portfolios or other investments to advisors. He appeared to be familiar with the observations of Windeyer J in Kerr v Badran (at [49]) that:

“ [49] In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. ”

35 Professor Reid noted that the notes (other than the ACAT assessments) make no reference to dementia and that no mini-mental state examination or other test was carried out to ascertain the extent to which Mrs Ludewig’s dementia impaired her ability to appreciate and weigh the claims of those who were potential objects of her testamentary bounty or to assess her appreciation of her assets.

36 In these circumstances the evidence as to how Mrs Ludewig gave instructions for the preparation of her will, the observations of Mrs Ludewig when she signed her will, and the inquiries made of her at that time, should be crucial to determining her testamentary capacity. In considering the evidence of Mr Robert Manning and Mr Brian Manning on this issue, I bear in mind that the general picture they gave of Mrs Ludewig’s mental condition is inconsistent with the picture portrayed in the affidavits of Ms Cochran and Dr Hughes, but the affidavits of Ms Cochran and Dr Hughes are corroborated by the nursing notes. Bearing this in mind, and also bearing in mind that they are beneficiaries under the will, their evidence has to be assessed with caution.

Instructions for the Will

37 Mr Mussett made a will on 2 June 2006. It is a reasonable inference that this prompted Mrs Ludewig to consider whether she should make a new will. According to Mr Robert Manning and Mr Brian Manning, Mrs Ludewig spoke to them both about her intention to do so. They said that she did not mention that she had made a previous will. It is likely that she had forgotten having done so. This in itself would not mean that she lacked testamentary capacity.

38 Mr Brian Manning deposed that at about the end of June 2006, Mrs Ludewig said to him either “I am intending to make my will and I would like you and Bob to be my executors” or “I am intending to make my will and I would like you or Bob to be my executor”. Mr Manning could not be sure which of those statements was made, but he said that would be fine.

39 Mr Robert Manning deposed that on 8 June 2006 following a telephone request from Mrs Ludewig, he drove her from the Glen Lynn nursing home to her then unoccupied residence at Thornleigh where she collected several shopping bags full of documents and paperwork from some record files. Mr Robert Manning gave evidence that this was the result of Mrs Ludewig’s asking him to take her to her home. He said that there were several occasions where she made that request but then cancelled because she decided she did not want to go, but on 8 June he took her to Thornleigh. Mr Manning said that he was not aware that Mrs Ludewig was reluctant to go. He said that Mrs Ludewig wanted to go and wanted to be taken to her home. He did not know the reason and did not question her (T34). The nursing notes for the day record “out with brother Bob at 12am [sic] to attend to some personal business. Will be back this pm. Gwen doesn’t like to go initially requiring a lot of TLC (tender loving care) explanation”. The nursing notes make no reference to Mrs Ludewig bringing back several shopping bags full of documents and paperwork. The notes from time to time refer to Mrs Ludewig reading magazines. No reference is made to her reading personal papers.

40 Robert Manning deposed that on about 6 July 2006 when he was visiting his sister at Glen Lynn there was a conversation to the following effect:

“[She said:] ‘I want you to arrange to be appointed as my power of attorney so that you can attend to the payment of my domestic accounts, my banking and the reinvestment of my term deposits as they mature.

As well as my power of attorney, I want a Will prepared for me. I intend to leave everything to you, Barbara and Brian equally. I want to be sure that what I am leaving to each of you will pass to your living children should you die before me. Are you prepared to be the executor?’

I replied with words to the effect:

‘Yes I will act as your executor but I hope it will be a very long time before the need arises. I could possibly reach the Pearly Gates before you do. When you see the solicitor you should make sure he knows exactly what it is you want to say in your Will.’

I then proposed that to use a local solicitor would be most appropriate and Gwen agreed to that suggestion. At the time Gwen was physically incapacitated due, I believe, to arthritis and a knee problem which required her to use a walking frame for assistance. ”

41 In cross-examination Mr Robert Manning said that the words he set out in his affidavit were the gist of what Mrs Ludewig said that he could recall. He agreed that the words which he set out in his affidavit were phrased in his words rather than Mrs Ludewig’s words and that she would have used much more simple language than was set out in his affidavit (T40).

42 After his meeting with Mrs Ludewig on 6 July, Mr Manning went later that day to the office of a solicitor, Mr Robert Palmer, not far from the Glenn Lynn Nursing Home. Mr Palmer had not previously acted for Mr Manning or for Mrs Ludewig. Mr Manning either spoke to or delivered a note of instructions to Mr Palmer. Neither he nor Mr Palmer could remember how the instructions were conveyed, that is, whether orally or in writing. They were probably given orally because the only written note of instructions on Mr Palmer’s file is a note prepared by him on 6 July 2006. Mr Palmer’s note reads:

“ Gwendoline Mary Ludewig
xxx yyy Place
Thornleigh 2120

Re P/A & Will

Robert Manning
xxx yyy Road
Cherrybrook 2126
xx75 xx18
___________________
EST. To Robert Manning } Brothers
Brian Gregson Manning}
Barbara Hughes - Sister
Executor Robert Manning
To be cremated
Presently in Glen Lynn NH North Rd ”

43 On the basis of those instructions Mr Palmer prepared a draft will on 11 July 2006. An appointment was made for him to see Mr Manning and Mrs Ludewig on 12 July 2006.

44 On 12 July 2006 Mr Robert Manning drove Mrs Ludewig to Mr Palmer’s office. The appointment was at 2.30pm. Mr Palmer recalled Mrs Ludewig walking up the driveway of the house in which he has his office and assisting her up the two steps into the building. He recalled that she had either a walking frame or a walking stick. Mrs Ludewig attended Mr Palmer in his office. Mr Manning was not then present. Mr Palmer deposed:

“ 13. It is my usual practice when interviewing testators to include advice on the effect of a Will, the role of the executor and where there is more than one beneficiary, to enquire as to whether all beneficiaries are to be co-executors. I also enquire, when the occasion arises, whether or not the testator has a spouse or children who should be considered. In the case of powers of attorney, I explain the effect of the document to the client and satisfy myself that the client appears to understand the effect of the document. In particular, I must be satisfied that the client understands that the attorney can in effect do all the things, with regard to the client’s property, that the client could legally do including accessing bank accounts and selling property. Furthermore, I explain to clients that the effect of the certificate which I am being asked to endorse on the power of attorney authorises the attorney to continue to deal with the client’s property even if the client subsequently loses legal capacity. I have no doubt that I followed my usual practice in confirming the deceased’s instructions for her Will and power of attorney prior to them being executed by the deceased.

14. Although the deceased presented as being physically frail, she appeared to me to be able to manage movement adequately and to clearly understand the contents and effect of her Will and power of attorney both of which I would have explained to her prior to them being signed by the deceased. It is my usual practice to read out to a testator the contents of a Will which I have prepared to ensure that the Will is in accordance with the testator’s instructions. I have no doubt that I followed my usual practice by reading out the deceased’s Will prior to it being signed by her. It is also my usual practice to hand the Will to the testator to read before executing it. The deceased would have therefore read both documents prior to them being signed.

15. Had I any concerns about the deceased’s capacity to fully understand the contents and meaning of her Will and power of attorney, I would expect to find a note in my file to that effect and a further note of any further enquiries I made to satisfy myself as to the deceased’s capacity prior to allowing the deceased to proceed to sign the documents in my presence. There is no such note therefore it was my opinion the deceased had the requisite testamentary capacity at the time she signed her Will and power of attorney on 12 July 2006. If I were not completely satisfied as to the deceased’s capacity I would not have proceeded with the signing and witnessing of those documents. There was nothing about the deceased’s demeanour nor anything she said to me to suggest that she was under any pressure or influence from Mr Manning or anyone else to give me the instructions that she did with regard to her Will and power of attorney. If that had been the case I would have declined to act for her and in all probability given her advice that she should not do anything or execute any Will or other document that she was not free and willing to execute of her own accord.

16. At no time during my interview with the deceased did I have any suspicion that the deceased was not competent to give instructions. ”

45 Mr Palmer did not keep a file note of his attendance on Mrs Ludewig on 12 July. In his oral evidence Mr Palmer said that he did not read the will aloud to Mrs Ludewig but that it was given to her to read and it was explained to her (T63). He did not ask her afresh how she wanted to leave her estate. He said that Mrs Ludewig had ample opportunity to change the draft will if it did not reflect her instructions. It is clear from Mr Robert Manning’s evidence that the draft will contained a clause providing for Mrs Ludewig’s body to be cremated and she asked for that to be removed. That clause was removed from the draft and a new document created which Mrs Ludewig signed. Mr Palmer and his secretary attested her signature to the will.

46 Mr Palmer did not ask the questions which would have elucidated whether Mrs Ludewig had testamentary capacity. He said that he was of the firm belief that Mrs Ludewig understood the content of the proposed will and that she was giving her instructions to him voluntarily without any pressure by any of her family. Mr Palmer said that he would have asked Mrs Ludewig whether she was married and whether she had children because if she had a husband or children, it would be unusual to leave her estate to her siblings. But he did not ask her whether she had any other brothers or sisters or other people important in her life. He did not ask her about her assets. It appears that he did not ask about previous wills. He did not ask her whether she had a long-standing relationship with anyone else.

47 This was unfortunate. As is said in Charles Rowland, Hutley’s Australian Wills Precedents, 7^th ed, (2009) LexisNexis Butterworths at [1.14]:

“ Where the solicitor is drafting a will and there is any possibility that the testator’s capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests at the front of her or his mind. ”

48 Mr Robert Manning deposed that after Mrs Ludewig had seen Mr Palmer in his office, Mr Palmer ushered Mrs Ludewig into the vacant waiting room and then went to a rear office. He said that Mr Palmer asked Mrs Ludewig if she would like to go into the office to read and sign the will but she said that she would like it to be read aloud as she wanted Mr Manning to hear it. Mr Manning deposed that Mr Palmer then read the will out loud and that after Mrs Ludewig had interrupted the reading of the will to ask for the clause involving cremation to be removed, Mr Palmer gave the will to his secretary who took it back into her office and later returned. He said that Mr Palmer then handed the will to Mrs Ludewig and asked her to read it carefully which she did and then said it was correct. As I have said, Mr Palmer said that he did not read the will aloud, although he said in his affidavit that it was his usual practice to do so.

49 Because Mr Palmer did not ask Mrs Ludewig about her assets and did not ask questions (other than whether she was married or had children) which would be relevant to assessing her capacity to appreciate those who might have claims on her estate and her capacity to weigh those claims, the court does not have the benefit which it ought to have in such circumstances of the inquiries a solicitor ought to make. Mr Palmer’s own opinion that Mrs Ludewig had capacity carries no weight. He did not ask the questions which needed to be asked for such an assessment to be made.

50 If I were satisfied with Mr Manning’s evidence that the request for the making of a will came from Mrs Ludewig unprompted, that he and Mrs Ludewig were accustomed to discussing her investments, and that Mrs Ludewig said words to the effect that she intended to leave everything to him, to Barbara and to Brian equally, and that she wanted to be sure that what was left to each of her siblings would pass to their living children should a sibling die before her, that would be powerful evidence in favour of a conclusion of testamentary capacity. It would indicate that Mrs Ludewig was able to appreciate in a general way the extent of her assets and that she did consider the position of her nieces and any nephews. It would not conclusively demonstrate that Mrs Ludewig was able to weigh up the respective claims of her siblings and her nieces and any nephews, but it would go towards an affirmative conclusion on that question.

51 Mr Robert Manning gave his evidence confidently and clearly. Although himself well advanced in years, his perception and intelligence is acute. But I have difficulty reconciling the general picture of the deceased portrayed by him with the picture of the deceased as it emerged not only from the evidence of the defendants, but as it appears in the nursing notes, the medical reports and the ACAT assessments. There is some substance to the attack on his credit made in cross-examination on his first affidavit where he described the circumstances in which Mrs Ludewig was admitted to the nursing home as being for reasons of convenience only, and not because of her physical, let alone mental, frailties. I think that the impression of Mrs Ludewig’s mental faculties which Mr Manning conveyed is not accurate. The words in which he described Mrs Ludewig’s instructions for her will were not her words. In the end I am not satisfied that Mrs Ludewig said anything about the position of her nieces or any nephews. Mr Palmer’s note of his instructions from Mr Manning made no reference to the substituted gift in favour of the children if one of the beneficiaries pre-deceased Mrs Ludewig. I am not satisfied that she was capable of bringing her nieces’ circumstances to mind and weighing their claims. Thus Mrs Ludewig not only forgot the names of Dr Hughes’ twins, but not did not remember from visit to visit that they existed.

52 As counsel for the plaintiff submitted, there may have been many good reasons why Mrs Ludewig might have decided to leave her estate to her siblings and to leave none to her nieces. Any ill feeling about the handling of Helen’s (her deceased sister’s) estate may well have evaporated. Leaving property in equal shares to her closest relatives is natural. Although many years earlier Mrs Ludewig had told Ms Cochran that when she died she wanted her sister Barbara and her nieces Mardi and Christine to have her money, as the three of them were always there to help her, by 2006 she may well have changed her mind. She may have thought that her sister’s children would be sufficiently provided for by the inheritance that they could expect on their mother’s death. She may have thought that they were well-established and did not need to inherit her estate. Mrs Ludewig did not need to explain any reason she had for making the will in the terms she did. The question is whether, when she signed the will, Mrs Ludewig had testamentary capacity.

Expert Evidence

53 As noted earlier in these reasons, Professor Reid was of the opinion having considered the documents provided to him, including the medical reports and nursing notes and also the affidavits of the parties and of Mr Palmer, that the severity of Mrs Ludewig’s dementia was not sufficient to render her incapable of making her will or of understanding and appreciating the various claimants upon her bounty. I infer that he was also of the view that whilst Mrs Ludewig may not have been fully aware of the extent or value of her assets, she was capable of having a general appreciation of them. In support of his opinion that Mrs Ludewig would be able to recall the nature and extent of the claims on her estate, Professor Reid said:

“... I could see no evidence that Mrs Ludewig did not recall family visitors and recognise them and thus be aware of their relatedness and whether she had wished them to be beneficiaries of her estate. ... I am of the opinion that despite Mrs Ludewig’s evidence of short term memory impairment and possible frontal executive dysfunction I do not feel that these deficits in themselves rendered her incapable of understanding the nature of a Will and who she wished to leave her estate to. ”

54 Professor Reid stated earlier in his report that Ms Cochran’s statement that Mrs Ludewig always “recognised us and was pleased to see us but was very frail and forgetful” was very important as it clearly indicated that Mrs Ludewig, despite her physical frailty, recognised and remembered who her potential heirs and beneficiaries were.

55 Clearly if Mrs Ludewig had been incapable of remembering her relatives, that would tell strongly against her having testamentary capacity. But I agree with the submission of counsel for the defendant that mere recognition of her relatives could not support a conclusion that Mrs Ludewig was capable of appreciating the respective claims on her testamentary bounty and discriminating between them. Dr Rosenfeld said that facial recognition is one of the deepest bits of memory that is retained even though higher-level cognitive functions are lost (T112-113). He said, and I accept, that such facial recognition carries no implication that the deceased was able to weigh the claims the person bearing the face might have on her.

56 Counsel for the plaintiff emphasised that apart from the ACAT assessments and Dr Bulbulia’s report and death certificate, there was no diagnosis that Mrs Ludewig had dementia generally, or Alzheimer’s specifically, and that no formal assessment or testing for dementia was undertaken. She was not prescribed medication which might have assisted in retarding the development of dementia. Both Dr Rosenfeld and Professor Reid were agreed that one cannot draw too much from this last fact. They said that it is very often the case that elderly people who suffer from dementia in nursing homes are not prescribed medication for the condition. Whilst the nursing notes, naturally enough, do not attempt a diagnosis, there are regular reports which identify subject matters for report which would be relevant to such a diagnosis. The regular matters for report were provided under such headings as communication, personal hygiene, medications, bladder management, understanding and undertaking activities of daily living, wandering and intrusive behaviour, verbal disruption, physical aggression, emotional dependence, other behaviour, and social and human needs. The notes of 28 August 2006 include statements that:

“ She has impaired memory and requires repeated reminders of tasks, events, especially recent events. She is able to express her needs and desires and are met without undue frustration ... She is able to feed herself as long as staff assists with setting of meal tray and food cut up and drinks poured. She is prompted to start and finish meals. ... She is able to perform some tasks of showering, dressing and grooming ... but with a lot of encouragement and motivation. She is assisted with those tasks that she can’t perform. ...

She is unable to self-medicate, requiring registered nurse to administer by spooning them one by one into her mouth to ensure complete ingestion. She adheres to medication schedule.

Impaired memory: with repeated reminders she is able to carry out some tasks of ADLS (activities of daily living) e.g. eating and drinking with some assistance from staff, wash her face, arms, chest, brush her hair with encouragement and motivation from staff. She requires extensive assistance with tasks of toileting. She interacts with staff.

Estimated self-esteem: she remains depressed and withdrawn, alienating herself from others. ... she visits one of her friends who is a resident of this nursing home [Mr Mussett] . She is visited by staff frequently by staff [sic] to enhance self-esteem ... She appears frustrated finding herself incontinent of urine because she totally denies it.

Risk for self-harm: despite (?) reminders to call for assistance/help and supervision, she still is seen walking unaided. Walking frame is left within her reach. She is closely supervised and is monitored of her activities and whereabouts. She hasn’t experienced fall/injury.

Ineffective coping: Remains resistive to personal care, requires assistance from staff, risking her safety during self-care activities. She creates stories to put staff (staff that she doesn’t like) down, accuses staff of taking personal items. She requires encouragement and motivation to allow staff to provide assistance and for her to accept changes in her functional mobility and be assisted. She is counselled to speak to staff involved in her allegation instead of making up stories and tell her friend. She requires daily interventions.

Impaired social interaction: she is socially withdrawn and alienates herself from others ... she is very interactive only to staff and her friend. ”

57 A similar review dated 30 January 2006 included notes that Mrs Ludewig was depressed and withdrawn, “expressing desires to go home. Denying her weakness and frailty. She also denies her incontinence. She keeps locking her door fearing other people staying by her door. ... “

58 Mrs Ludewig was referred to Dr Kathryn Brooke, a rehabilitation physician, for her painful right shoulder. On 21 September 2006 Dr Brooke reported to Dr Bulbulia that Mrs Ludewig “has a history of a painful right shoulder and describes having an operation at some stage in the past. Unfortunately she was experiencing some memory difficulties so I do not have a clear picture of the previous injury or any surgical procedures performed. Mrs Luedwig [sic] is widowed and has been a resident of the nursing home from 14 Sepember 2005. She is able to walk short distances with a walking stick or a walking frame. She is assisted with showering and dressing.” Dr Brooke then dealt with the condition of Mrs Ludewig’s shoulder.

59 I cannot say from Dr Brooke’s report whether the information that Mrs Ludewig had been a resident from the nursing home from 14 September 2005, which was substantially accurate, was information which came from Mrs Ludewig herself, or from some other source such as Dr Bulbulia’s referral.

60 The difficulty in this case is that there was no assessment of matters directly relevant to Mrs Ludewig’s testamentary capacity. There is conflicting medical evidence as to whether the degree of confusion and loss of memory depicted in the nursing notes would be likely to lead to such cognitive deficits such that she lacked testamentary capacity. I do not consider that I can rely upon Dr Warneford’s observations of her capacity up to August 2005 to assess her capacity in July 2006.

61 The picture is of a physically very frail elderly lady who was depressed, lacked appreciation of her own physical condition and weaknesses, exhibited confusion from time to time, had some paranoia, who recognised her relatives but did not recall important family information (viz that her niece had recently had twins), who could not conduct a conversation over the telephone, who lost the thread of a conversation in person, who did not recall for how long she had been in the nursing home, who said, quite unrealistically, that she would be going home soon, and who would ask the same questions over and over again having forgotten that she had already done so. It is also the picture of an elderly woman who, after Mr Mussett made his will, decided that she should make her will, and who, both Dr Rosenfeld and Professor Reid agreed, would understand the nature of a will. I accept that she also expressed the wish that she should leave her estate to her brothers and her sister. Although in opening submissions, counsel for the defendants submitted that there were suspicious circumstances attaching to the giving of instructions for the preparation of the will, I do not find that either of the Mr Mannings put it in Mrs Ludewig’s mind as to how she should leave her estate. I do not think that there is anything suspicious about the fact that Robert Manning conveyed instructions to Mr Palmer on behalf of his sister, although I am not satisfied that the instructions she gave him extended to instructions for a substituted gift if one of the beneficiaries died before her.

62 In this case the onus of proof is relevant. Where a doubt arises as to a testator’s testamentary capacity, the onus of proving capacity lies on the person propounding the will. The proof is to be made on the balance of probabilities. Proof on the balance of probabilities requires the tribunal of fact to “feel an actual persuasion of its occurrence or existence before it can be found. ... No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.” (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362).

63 In Worth v Clasohm (1952) 86 CLR 439, in a joint judgment the High Court said (at 453):

“ A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. ”

64 In Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 Gleeson CJ said (at 289-290):

“ Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439.
This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. ”

65 It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator’s (or testatrix’s) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question.

66 In the present case, I accept Dr Rosenfeld’s evidence of the conclusions to be drawn from the observations made in the nursing notes and the observations made by the defendants as to the progress of Mrs Ludwig’s dementia. As indicated earlier in these reasons, I do not accept all of his observations. But I do accept the main thrust of his opinion that the evidence of Mrs Ludewig’s forgetfulness, lack of insight, inability to hold a complex conversation, and a certain degree of paranoia, indicate that she suffered both from a loss of memory and frontal lobe disease that impaired her cognitive functions such that I could not be satisfied that she had testamentary capacity. Dr Rosenfeld said that the frontal lobe is a critical aspect of being able to think and understand the recollection of things. He said that it was the seat of executive function and to be able to do the job it is meant to do, it has to be able to take in information, interpret it and hold that information in the brain whilst taking in other bits of information and comparing them. He said that one of the earliest features in frontal lobe dysfunction is the inability to hold different disparate bits of information and hold them there in a useful manner to be able to compare them. At a later point he compared the function of the frontal lobe with the function of RAM in a computer. If there is insufficient RAM, the computer will be unable to process the information which is otherwise stored on it.

67 Professor Reid’s view was that the nursing notes did not provide adequate evidence of frontal executive dysfunction of which there had been no assessment. Of course neither doctor had examined Mrs Ludewig. There they were at a disadvantage, but there is no other person with medical expertise who gave evidence who made an assessment of Mrs Ludewig’s cognitive functions after August 2005. Moreover, as Dr Rosenfeld said, a substantial part of any diagnosis is the obtaining of a history of the patient and in the present case there is a more detailed history available of Mrs Ludewig than a treating doctor would have available on consultation with a patient. I accept Dr Rosenfeld’s opinion as to the conclusions to be drawn from the nursing notes, when taken with the defendants’ evidence which was not challenged in cross-examination.

68 For these reasons I am not satisfied that Mrs Ludewig had testamentary capacity when she signed her will dated 12 July 2006. I order that the plaintiff’s summons be dismissed.

69 I order that probate of the will dated 3 September 1992 of Gwendoline Mary Ludewig late of Thornleigh, New South Wales, retired, be granted to the cross-claimant in solemn form.

70 I refer the proceedings to the Registrar to complete the grant.

71 This was clearly a case in which testamentary capacity had to be investigated and was fairly arguable on both sides. Prima facie I am of the view that I should order that the defendants be paid their costs on the indemnity basis out of the estate and that there be no order in respect of the plaintiff’s costs. If any party seeks a different costs order I will hear submissions on that.

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