McKay v Hearps - [2021] TASSC 62

[2021] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: McKay v Hearps [2021] TASSC 62

PARTIES:  McKAY, Lisa Jo-Anne
  v
  HEARPS, Daralee Anne

FILE NO:  2334/2018
DELIVERED ON:  16 December 2021
DELIVERED AT:  Hobart
HEARING DATES:  1-3 and 19 February 2021
JUDGMENT OF:  Brett J
CATCHWORDS:

Succession – Testamentary capacity – Loss or lack of capacity to make statutory wills – Whether cognitive deficit – Final will executed substantially different than previous wills – Removal of family members as beneficiaries – Sole beneficiary to receive whole of estate absolutely – Beneficiary befriended by testator months before his death– Beneficiary to receive estate as payment for providing care – Evidence of general practitioner and legal practitioner – Cognitive impairment but requisite legal capacity.

Banks v Goodfellow (1870) LR 5 QB 549; Nock v Austin (1918) 25 CLR 519; Wheatley v Edgar [2003] WASC 118; Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20, referred to.
Brownell v Robinson [2017] TASFC 11, followed.
Parker v Felgate (1883) LR 8 PD 171, applied.
Timbury v Coffee (1941) 66 CLR 277; Re Estate of Griffiths deceased (1995) 217 ALR 284, considered.

Aust Dig Succession [1008]

Succession – Testamentary instruments – Knowledge and approval of contents – Circumstances arousing suspicion – Final will executed substantially different than previous wills – Removal of family members as beneficiaries – Sole beneficiary to receive whole of estate absolutely – Beneficiary befriended by testator months before his death– Beneficiary to receive estate as payment for providing care – Testator instigated change of will – Persuasive reasons for exclusion of family members – Testator knew and approved contents of will.

Brownell v Robinson [2017] TASFC 11, followed.
Nock v Austin (1918) 25 CLR 519; Timbury v Coffee (1941) 66 CLR 277; Wheatley v Edgar [2003] WASC 118; Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20, referred to
Parker v Felgate (1883) LR 8 PD 171, applied.
Aust Dig Succession [1021]

REPRESENTATION:

Counsel:
             Plaintiff:  R Meredith
             Defendant:  R Foon
Solicitors:
             Plaintiff:  WMM Law
             Defendant:  Douglas and Collins

Judgment Number: [2021] TASSC 62
Number of paragraphs: 78

Serial No 62/2021
File No 2334/2018

LISA JO-ANNE McKAY v DARALEE ANNE HEARPS

REASONS FOR JUDGMENT BRETT J

16 December 2021

Albert James Turner (the testator) died on 21 July 2017. He was 87 years of age at the time of his death. He had been married twice, and had survived both wives. He had no biological children, but he had two stepsons, who were the children of his second wife, and a number of step-grandchildren. His estate at the time of his death consisted of his house at Perth, its contents, personal effects, a bank account and some other relatively modest cash assets. The estimated net value of the estate is $316,319.91.
The plaintiff and the testator had had a close friendship since first meeting in October 1996, when they were both living in Queensland. They met shortly after the death of the testator's first wife, Mary. The plaintiff was working as a pharmacist and the testator was a customer of the pharmacy. Although the testator moved away the following year, they maintained their friendship and kept in contact regularly until his death.
The testator married his second wife, Kaye, in 2005. In 2007, the couple moved to Tasmania, where they lived until moving back to Toowoomba, Queensland in 2010. Kaye was diagnosed with cancer shortly before this move. She died in December 2012. It is apparent from the evidence, and common ground between the parties, that the testator was very close to both Mary and Kaye, and suffered significant grief and emotional upset after Kaye's death. Ongoing grief and consequent loneliness were features of his psychological state until his death.
In 2013, while he was still living in Toowoomba, the testator made a will in which he appointed the plaintiff to be his executor. He left gifts of $100,000 to each of two step-grandchildren and bequests of specific items of property to the plaintiff and a woman who worked for him then as a cleaner, Kaye Brooks. The residue of the estate was left to the plaintiff and Ms Brooks. This will was prepared by a solicitor, and contained the usual array of provisions dealing with executor powers and machinery matters.
The testator made a further will on 12 February 2014 (the first will). He had moved briefly to Tasmania in the intervening period but when he made this will, he was again living in Toowoomba, and again the will was prepared by a solicitor. The principal substantive change was the removal of Ms Brooks as a beneficiary. The plaintiff was again appointed as executor and the cash gifts to the two step-grandchildren remained in the will. However, the residue of the estate was left entirely to the plaintiff.
It is apparent from the evidence that around the time that he made this will, the testator's health started to decline. On 28 March 2015, he was admitted to hospital in Toowoomba suffering from various health difficulties. There is no doubt that his physical health was the subject of treatment, but there is an issue between the parties as to whether cognitive deficit was identified during his time in hospital, and if so the extent and significance of such deficit.
In August 2015, the testator sold his house in Toowoomba and purchased his final home in Perth, Tasmania. He arranged the move to Tasmania and drove himself there. He met the defendant soon after moving into the house. The defendant lived nearby in a rented house with her three youngest children, who were then aged 14, 12 and 6. The youngest lives with significant disability and clearly requires a great deal of care from his mother. The defendant had qualified and worked as a registered nurse, although she was not working in that capacity when she met the testator.
In late December 2015, the testator and the defendant came to an agreement that she and her children would live in his house with him, and she would care for him. This was to be a permanent arrangement and in exchange, the testator promised to leave his house to her upon his death. The circumstances in which this agreement came about were the subject of much evidence during the trial and require further examination. The defendant and her children moved into the house on 30 December 2015.
On 18 January 2016, the testator instructed a legal practitioner, David Smith, to prepare a will leaving his entire estate to the defendant. Mr Smith prepared the will (the second will) and forwarded it to the testator. The will was in simple terms. Apart from revoking all former testamentary dispositions, the sole substantive clause was to appoint the defendant as his sole executor and give the whole of his estate to her absolutely.
On 22 January 2016, the testator signed the will during a consultation with his general practitioner, Dr Timothy Flanagan. The defendant was also present during this consultation. Dr Flanagan signed the will as the sole witness to its execution.
On 25 January 2016, the testator attended Mr Smith's office without an appointment and handed the signed will to him. Mr Smith advised him that the will had been invalidly executed because his signature had not been witnessed by two witnesses. Mr Smith prepared another will in exactly the same terms (the third will) and that will was immediately signed by the testator in front of Mr Smith and another employee of the law office. That will is the last testamentary instrument of the testator. The defendant and her children continued to live with the testator until his death.
The plaintiff seeks probate of the first will, and a decree pronouncing against the validity of the second and third wills. It is common ground that the second will is invalid for the reasons identified by Mr Smith, that is the failure to sign the will in the presence of two or more witnesses: Wills Act 2008, s 8. In respect of the third will, due execution is not in question, but the plaintiff asserts that the testator lacked testamentary capacity when he gave instructions for and executed the will. The plaintiff also asserts, either additionally or in the alternative, that the testator lacked knowledge of and did not approve of the contents of the second and third wills. It is alleged that the testator had sufficient testamentary capacity when he executed the first will, and accordingly probate should be granted in respect of that will.
These allegations are disputed by the defendant. The defendant asserts that when the testator executed the third will, he had sufficient testamentary capacity and knew and approved of the contents of that will. The defendant seeks a grant of probate in respect of that will.

The law

The legal requirements of a valid will are well settled and not in dispute. The essential requirements of validity include sufficient testamentary capacity on the part of the testator, and the testator's knowledge and approval of the contents of the will. These requirements will be presumed if the will is rational on its face and duly executed and attested in accordance with the relevant legal requirements: Wheatley v Edgar [2003] WASC 118 at [24]. However, the presumption will only apply in the absence of evidence to the contrary. If the circumstances surrounding the making of the will and its execution raise a suspicion in respect of either or both of these requirements, then the Court, after a vigilant examination of the whole of the evidence, must be affirmatively satisfied of the requirement in question before the will can be admitted to probate: Timbury v Coffee (1941) 66 CLR 277; Wheatley v Edgar (above); Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20.
It is generally accepted that the propounder of the will bears the onus of establishing its validity. The standard of proof is on the balance of probabilities. These formulations must, however, be applied within the context of probate litigation which has strong elements of supervision and inquisition. In Brownell v Robinson [2017] TASFC 11, Estcourt J at [27], with whom Pearce J and Marshall AJ agreed, endorsed the following passage by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786:
"Nevertheless, upon an exercise of probate jurisdiction the Court exercises a vigilance beyond that necessary, or appropriate, in ordinary adversarial litigation. Questions of onus tend, in practice, to be governed not so much by who alleges what (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125) as upon what it is that the Court, in all the circumstances, and informed by experience and considerations of fairness (JH Wigmore, Evidence in Trials at Common Law (Little Brown & Co, 3rd ed, 1940) volume 9 Book II), apprehends it must be satisfied of if a will is to be held valid."
His Honour also endorsed my analysis at first instance in Brownell v Robinson [2017] TASSC 5 in which I determined that, in practical terms, I should only find facts proved which would support the grant of probate, if affirmatively satisfied of those facts on the balance of probabilities.
The traditional formulation of the test for testamentary capacity is that expressed by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565. This test was restated, in my view in a more comprehensible way, in a passage by Hood J in The Will of Wilson (1897) 23 VLR 197 at 199, reproduced and endorsed by Dixon J in Timbury v Coffee (above) at 283:
"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner."
In applying this test, it is important to bear in mind that the focus must be on the actual existence of sufficient mental capacity to make the testamentary disposition. In his text, Law of Succession, 3^rd ed, Professor Dal Pont points out that there "is tension between the much articulated principle of freedom of testation and the legal consequences of a finding of mental incompetency". In my view, the two concepts are simply different sides of the same coin. A testamentary act represents a formal, solemn and binding declaration of intention, which has legal effect after the life of the testator has come to an end. Viewed in this light, it can be seen that both freedom and sufficient mental capacity are necessary and closely related constituents of the act. Provided the focus of the inquiry is firmly on the capacity of the person to carry out the testamentary act, and not distracted by contextual considerations which, although essential to the determination, are not determinative in themselves, the tension is removed. Hence, the existence of illness, advanced age or cognitive decline will not, of themselves, lead to a finding that the testator lacked sufficient testamentary capacity. This was explained by Kirby P (as he then was) in a passage reproduced by Professor Dal Pont from Re Estate of Griffiths deceased (1995) 217 ALR 284 at 295:
"In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: ... Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."
A further point of importance made by Professor Dal Pont is that the test for mental capacity is a legal and not a medical one. Accordingly, while medical evidence will inform the application of the test, ultimately it resolves to a legal determination. It is accepted that non-medical witnesses, such as lawyers experienced in the preparation of wills, can provide useful opinion evidence in respect of the question of capacity.
The requirement of knowledge and approval is a different concept, and only arises for consideration if the Court is satisfied that the testator had adequate testamentary capacity. The question is essentially a factual one, that is, it must be shown that the testator, as a matter of fact, knows that the document in question is his or her will, knows in substance how it deals with his or her property, and by execution, approves of the contents of the document. It does not require anything more. The testator is not required to know every detail of the clauses contained in the will or understand every aspect of their legal effect. Self-evidently, the focus is on the circumstances surrounding the preparation and execution of the will. It is irrelevant that the testator subsequently changes his or her mind, and withdraws approval, if this decision is not carried into effect by a further testamentary act. A common example of circumstances casting suspicion on the question of knowledge and approval is where the will has been prepared by a beneficiary. However, other circumstances can excite suspicion if they call into question whether the testator knew and/or approved of the contents of the will. See Nock v Austin (1918) 25 CLR 519 and generally the cases referred to by Prof Dal Pont in Law of Succession, 3^rd ed.
The final legal point that should be mentioned is often described as the rule in Parker v Felgate (1883) LR 8 PD 171. This rule suggests that the appropriate time for determining the question for testamentary capacity is at the time of giving instructions for the preparation of the will. The rule will have practical relevance where the person possesses testamentary capacity at that time, but there is a subsequent mental deterioration intervening between giving instructions and executing the will. It is a reasonable observation that, on the evidence in this case, it will not be necessary to give detailed consideration to the application of that rule.

Suspicious circumstances

The suspicion asserted by the plaintiff in respect of the testator's mental capacity at the time of execution of his will is essentially based on an opinion expressed by Dr Flanagan that he did not possess testamentary capacity when he signed the will in his surgery on 22 January 2016. It is also informed by the testator's general background, including matters contained in records relating to his hospital visit in Toowoomba in March 2015, and the precipitous and radical nature of the change in direction of his testamentary intentions represented by the second and third wills. In particular, it is submitted that suspicion arises from the decision to favour a person he had only known for a few months, over others who had a strong family-based claim to the estate. It is also submitted that there are suspicious circumstances concerning the question of knowledge and approval. In particular, the plaintiff points to the fact that the effect of the third will is to leave all of testator's estate to a person he had just met, and who had just become his carer. It is suggested that the defendant had a role in the preparation of the will, and may have persuaded the testator to make a will in those terms. I note, however, that it is not part of the plaintiff's case that the defendant engaged in undue influence of the testator, nor any form of unconscionable conduct. Mr Meredith, on behalf of the plaintiff, submits that the suspicions relating to both issues cannot be dispelled upon a vigilant consideration of all of the evidence.
Mr Foon, who appeared for the defendant, did not seriously contend that the Court was not required, in the light of Dr Flanagan's opinion, to examine the evidence as to testamentary capacity. I agree. The evidence clearly raises a question as to capacity, and the Court must examine the evidence in respect of that matter. On the assumption that the testator had sufficient capacity, it is less clear in my view that the evidence raises any suspicion concerning the question of knowledge and approval. This was not a case where the defendant arranged for or prepared the will, nor is it alleged that she has unduly influenced or coerced the testator into leaving his estate to her. However, the evidence deals generally with the circumstances surrounding the testator's decision, and the preparation and execution of the second and third wills. A vigilant examination of that evidence will permit me to reach conclusions about both questions.

Testator's background

I say at the outset that I found each witness who gave evidence in the trial to be credible and generally reliable in his or her testimony. There were some inconsistencies on matters of historical detail between witnesses, but I attribute this to the imperfection of recollection. In my view, each witness was doing his or her best to give me a truthful account.
A common theme between witnesses was the identification of some strong and very definable personality traits of the testator. These included a tendency towards grandiosity. It seems that he would often tell stories about his personal acquaintanceship and knowledge of famous people. Some or all of these stories were likely to be untrue. He was very affected by his grief over the deaths of both wives, and was noted for expressing this grief in an emotional way regularly, and often quite publicly. He also had a clear tendency to make strong and long-term friendships, often with people he had met in professional or commercial dealings. His long-standing friendship with the plaintiff was an example of this. It may well be that this was a means of compensating for his loneliness, but it is not necessary to determine or even speculate about that. It was a clear feature of his personality. Another important personality trait was the testator's capacity to fall out with people with whom he had a relationship, and to act accordingly when making important decisions, including those of a testamentary nature. For example, the principal difference between the 2013 and 2014 wills was the removal of Kaye Brooks as a beneficiary. The only evidence about this comes from the plaintiff. Ms Brooks was the testator's housekeeper when he was living in Queensland at that time. The plaintiff describes a falling out between Ms Brooks and the testator in March 2013, approximately two months after he had executed the 2013 will. This falling out happened at the time that the testator was moving from Queensland to Tasmania. He had arranged for Ms Brooks to drive him there, but she refused to do so after a falling out on the morning of the move. There is no other information about this relationship but, it can be inferred from the change to his testamentary intentions expressed in the 2014 will, that she was removed as a beneficiary because of these circumstances.

A further example of this tendency relates to his relationship with his two stepsons, Shane and Danny. The testator was married to their mother Kaye from 2005 until Kaye's death in December 2012. According to the plaintiff, the testator did not have a good relationship with either stepson and, even during his marriage to Kaye, would complain about them and their lack of appreciation for what he had done for them. He was also disappointed by their lack of attention to their mother during her illness, and by their perceived failure to make an effort to keep in contact with him after her death. He continued to express negative sentiments about them throughout the rest of his life.
The plaintiff testifies that in 2012, shortly before her death, Kaye had dispersed some funds obtained from a life insurance policy to Shane and Danny. It seems to have been a substantial amount – they either received $100,000 each, or that sum was shared between them. It is apparent that in none of the four wills relevant to this case, was either stepson included as a beneficiary. Instead, in the 2013 and 2014 wills, two step-grandchildren were each gifted $100,000 from the estate. Having regard to the final net value of the estate, it can be inferred that at the time that those wills were prepared, the combined value of the gifts, $200,000, would have represented the majority, if not all, of the net value of the estate. I conclude that the claim by the stepsons to the testator's estate had been considered and discounted by him well before he gave instructions for the preparation of the second and third wills. He maintained this position resolutely, despite a number of attempts by the stepsons' father to persuade him to the contrary.
In respect of the gifts to the two step-grandchildren, it is notable that Kaye, in fact, had six or more grandchildren. In her evidence, the plaintiff says that the testator explained to her that only two step-grandchildren were included as beneficiaries because that was something he had agreed with Kaye before her death. He also said that he did not want to give anything to the child of one of the step-children because that would help his father.
Of course, it is not necessary or even helpful for me to decide whether the views held by the testator in relation to Shane and Danny were justified. The significance of this evidence is that his assessment of their claim on his estate was a matter of active and long-standing consideration by him. This assessment was reflected in his testamentary intentions as early as the 2013 will. Whether he was right or wrong about them, he had a logical reason for not including them in his testamentary dispositions. It is clear also that the claims of step-grandchildren were based on an agreement made with his late wife prior to her death in December 2012. There is no evidence as to the nature, or even existence, of a personal relationship between the testator and these children. Although each stepson was given notice of these proceedings, neither chose to participate in the trial. It is also of some significance that the testator had, even as early as the time of the 2013 will, rejected as possible beneficiaries of his estate all but two of his step-grandchildren.

Deterioration of the testator's health

According to the plaintiff, the testator's health started to deteriorate in 2014 and 2015, after he had executed the 2014 will. Her evidence is that he was admitted to hospital on a number of occasions, his emotional expressions of grief over the loss of his wife intensified, and he commenced to talk about ending his life. He steadfastly refused any suggestion that he move into a retirement village or aged care facility. This attitude demonstrates another aspect of the testator's personality, a steadfast maintenance of his independence.
The plaintiff's evidence about this is consistent with medical records from the Toowoomba Health Services. The records date from February 2014 and show that from that time at least, the testator was experiencing difficulties which included loneliness and reduced mobility. Loneliness and depression are themes throughout the records which continue until his hospital admission in March 2015. Both counsel have referred to notations contained in the records, in particular relating to the hospital visit. On the one hand, a record of what appears to be a psychiatric assessment contains comments as follows:
"·   No history of elevated mood or any feature suggestive of hypomania or mania. No features suggestive of anxiety or psychosis. No history suggestive of dementia.
·   No formal thought disorder noted.
·   Was not interested in completing MMSE. Did not want to spell WORLD backwards.
·   In the remaining MMSE missed one point each in registration and recall. Scored correctly for other points. Is not indicative of cognitive impairment."
On the other hand, handwritten progress notes apparently related to the same hospital admission, record concerns about his safety at home, and note an expression of concern that his "cognition was a major risk for safety living alone". The discharge summary on 7 April 2015 notes a principal diagnosis of "Acopia/Depression". "Cognitive impairment" is recorded as "other condition". Tests conducted during his admission were consistent with this conclusion.
In my view, it is necessary to exercise caution in the use of opinions expressed in these records. They are useful to provide general background in relation to the testator's health at the relevant time but the authors of the relevant records were not called to give evidence and the conclusions which can be drawn from the various notations are limited. At the most, it is consistent with the plaintiff's evidence as to the deterioration in the testator's physical, emotional and psychological health around this time. It is also consistent with his ongoing grief and consequent loneliness after the death of his wife. I accept Mr Meredith's submission that the records raise some "red flags" in respect of the testator's cognitive health at that time, but apart from this, it is not possible to draw any other firm conclusions from these records.

Relationship between the testator and the defendant

The evidence establishes that in August 2015, the testator sold his house in Toowoomba and purchased the house in Perth, remotely and without a physical inspection. He then arranged and executed his move to Tasmania, including by driving himself there from Queensland. He arranged temporary accommodation while waiting for the settlement of the property, and then moved into the property with his household contents. As Mr Foon points out, he did all of this himself without significant assistance from anyone else, and without any apparent difficulty.
Soon after moving into the Perth house, the testator met and then employed Karen Rowlings to perform cleaning and housekeeping work for him on a weekly basis. I am satisfied that Ms Rowlings is mistaken in her evidence when she asserts that she commenced this arrangement in January 2015, and the arrangement had been in place for 12 months before the defendant moved into the testator's house. Even on her own evidence, the arrangement commenced after the testator had moved into the Perth house. I am satisfied that this did not occur before August 2015.
The evidence which establishes the circumstances in which the testator met the defendant and then entered into the arrangement with her which eventually led to the preparation of the second and third wills, is substantially provided by the defendant. However, her evidence about this is corroborated in important respects by the defendant's parents. I accept all three as credible and reliable witnesses. Each impressed me as honest and thoughtful, and was clearly doing his or her best to give me an honest description of the events as recalled from the relevant period. Further, the capacity of the defendant to provide a significant amount of detail about these events was assisted by the fact that she had kept a continuous diary throughout this period. She explains that she did this because she was concerned to maintain records to assist her in the administration of medications and other work related to the care of the testator. Finally, the evidence of all three is, in important respects, either corroborated by or consistent with other independent evidence. There is some discrepancy between the evidence of the defendant and Ms Rowlings, but I have no hesitation in accepting the evidence of the defendant in preference to that of Ms Rowlings, where there is conflict.
The defendant's evidence as to relevant events is as follows. She was, at the time of first meeting the testator, living in a rented house near his residence. They met opportunistically while she was mowing the front lawn and he was going past on his mobility scooter. A friendship quickly developed, and they had regular contact. None of this is surprising, it is entirely consistent with the testator's tendency to develop such friendships, as already discussed.
In October 2015, the testator was visiting the defendant's home when he noticed indications that she was moving. She explained to him that her lease was not being renewed and she needed to find somewhere else to live. Two weeks later, the testator visited her and told her that he was lonely, needed help with medications and did not want to go into a nursing home. He asked her to move in to his house with her children and live there with him until he died. It appears from other evidence that he was aware that she was a nurse. In any event, he wanted her to ensure he took his medications, be there to provide emergency assistance if he required it, and provide him with company. He indicated that he would continue to employ a cleaner, and would not require the defendant to do that work. The testator then said that if she was willing to do this, he would go to his lawyer and change his will so that she would have the house as payment for caring for him.
The defendant's evidence is that she declined the offer. She was aware how difficult it would be to look after the testator, particularly if he continued to live for a lengthy period. She was also concerned about her children.
The testator put the proposal to her again a few weeks later. With his permission, she discussed the proposal with her parents, Anthony and Kathleen Donald. Both expressed significant reservations about the proposal. Mr Donald's evidence is that he drove from his home in Swansea and met with the testator at his home. He asked for an explanation of the proposal and the testator told him that he wanted the defendant to care for him so that he would not need to go into a "home". He said that he had found out that she was a trained nurse, and this made him even more adamant that she should take care of him. Mr Donald asked him why he would agree to give her his home in return, and the testator replied to him that he had "no direct family and that his stepsons never cared or visited him". This explanation and Mr Donald's evidence about the conversation is patently consistent with other evidence already discussed, concerning the testator's attitude concerning his stepsons.
The defendant's mother, Kathleen Donald, is a retired registered nurse and registered psychiatric nurse. She has extensive nursing experience, including in aged care. She cautioned her daughter against accepting the testator's proposal. She was aware how difficult it would be to care for him as time went on and concerned about the welfare of her daughter and her grandchildren.
The defendant again declined the testator's offer. It was renewed a few weeks later and again declined.
On Christmas morning of 2015, the testator came to the defendant's house, burst into tears and begged her to live with, and care for, him. The defendant called both parents to again seek their advice. They advised a trial period. This conversation is confirmed by the evidence of the defendant's mother.
After obtaining this advice, the defendant agreed to move in with the testator. Her evidence is that she offered to pay rent or board, and to contribute in other ways to the household expenses, but this was refused by him. She and her children moved into the home on 30 December 2015, and she immediately commenced assisting the testator with medications, and providing meals and company.
I am satisfied that from the outset, the defendant diligently attended to her side of this bargain. She and others confirm that the testator's mood had become erratic and from time to time he came into conflict with her and there would be arguments. Occasionally, the testator would express to the defendant a desire that she move out or that the arrangement come to an end, but would invariably retract this within a very short time. I accept the defendant's evidence that these occasions were generally related to the testator's mood swings and were short lived. They did not reflect his underlying attitude. There is no reason to doubt this, his erratic moods were witnessed by many who knew him, including the plaintiff. There is no doubt that as time progressed, he became heavily reliant on assistance provided to him by the defendant. I am also left without any doubt that the defendant diligently and, at considerable personal expense and effort, provided the testator with the care and company that he sought from her.

The wills

The second and third wills were prepared by a legal practitioner, David Smith. Mr Smith is an experienced practitioner specialising in non-litigious work. He has been in practice since 1982 and estimated that in that time he had prepared between 1,500 and 2,000 wills. He had acted for the testator in August 2015 in respect of the purchase of the Perth property, and had met him for the first time then.
Mr Smith's involvement in the preparation of the wills was initiated by a telephone call to his office by the testator on 18 January 2016. Mr Smith returned the calls, spoke to the testator, and was given instructions to prepare a will in the terms which were ultimately contained in the second and third wills. There is no evidence to suggest that the defendant, or anybody else, was involved in the testator's decision to make contact with Mr Smith. In fact, the clear evidence of the defendant is that she did not know about this telephone call until he told her about it at a later time. Contrary to inferences I was asked to draw about the defendant's role in the lead-up to that telephone call, there is no evidence that it was anything other than a unilateral act undertaken by the testator, without the knowledge of the defendant, or indeed, her parents. The defendant did concede in cross-examination that she had asked the testator about the will on Christmas Day, and was told by him that he could not get hold of his lawyers because they were away for the Christmas break and he would do so as soon as they returned from that break. She said that after that she asked a couple of times whether he had been able to get hold of his lawyer, and received the same response, that the lawyer had not yet returned from a break. However, her role in these arrangements went no further than that, and she was not directly involved in making contact with Mr Smith.
I accept this evidence. It is entirely consistent with the timing of the testator's contact with Mr Smith. I am also of the view that these requests by the defendant were eminently reasonable, and consistent with her version of how the agreement between the testator and her was formed and put into effect. There is no suggestion that she was putting any form of pressure on the testator and, in any event, I reiterate that the plaintiff has expressly eschewed reliance upon any form of undue influence or unconscionable conduct. The defendant clearly had a legitimate interest in ensuring that the testator's side of the agreement was put into effect and her gentle inquiries, followed by acceptance of his responses, are consistent with the fact that the decision to change the will to leave his estate to her, had emanated from the testator and was essentially for his benefit.
Because the third will reflects the instructions given to Mr Smith during the telephone call on 18 January, the rule in Parker v Felgate would suggest that that is the relevant time for determining testamentary capacity. Mr Smith's evidence is that the testator's instructions were clear, and it appeared to Mr Smith that he understood what he was saying and what Mr Smith was saying to him. Mr Smith expressed the opinion that the testator appeared to him to possess requisite testamentary capacity. Mr Smith agreed in cross-examination that he did not discuss with the testator his medical history or his health. However, notwithstanding his opinion as to capacity, he did consider the will potentially problematic, on the basis that the testator was leaving his estate to his carer. His usual practice in such a case is to request the client to have the will executed in front of their general practitioner. Mr Smith's intention, in accordance with this practice, was to be present at the execution of the will to confirm the general practitioner's opinion concerning testamentary capacity, and to act as a second witness.
While Mr Smith's evidence is that this is the process he intended, there is some confusion in the evidence concerning the information he provided to the testator in that regard. The letter to the testator which enclosed the will was not in evidence, but cross-examination as to its terms indicates that this information was not in the letter, although the letter did ask the testator to contact Mr Smith if the will was in order, so that arrangements could be made for its execution. Mr Smith believes that he discussed arrangements for the execution of the will during consultation with a general practitioner, with the testator during the telephone conversation. This is likely to be correct because two days later, on 22 January, the testator attended a consultation with Dr Flanagan, during which he signed the will in front of Dr Flanagan and had him witness his signature. He did not tell Mr Smith about this until afterwards. I think that it is probable that Mr Smith did discuss with the testator his intention to be present when the will was executed, but the testator misunderstood or forgot that aspect of the arrangement. I do not think that is particularly remarkable. The significance of two witnesses might easily elude a person not familiar with legal processes.
In any event, the will was executed during the consultation with Dr Flanagan, and Dr Flanagan signed the will as its sole witness. The defendant was also present, although she did not travel to the consultation with the testator. The defendant's evidence is that the testator had asked her to accompany him to see the doctor and told her that the doctor and the lawyer had said that she had to be there. He asked her to bring a Centrelink form and an envelope. The envelope contained the will, but the defendant did not know that until Dr Flanagan removed the will from the envelope at the consultation. She initially mistakenly went to a surgery in another location and, accordingly, arrived at the consultation sometime after the testator. The fact that she arrived separately and late is confirmed by the evidence of Dr Flanagan.
According to the defendant, three days later, on 25 January 2016, the testator asked her to take him to see Mr Smith. Her recollection is that the testator insisted that she accompany him into the meeting with Mr Smith. She testifies that in that meeting, the testator handed Mr Smith the envelope containing the signed will. Mr Smith removed it, and noticed that the defendant's name was not spelled correctly and that the will had not been properly witnessed. He then arranged for another copy to be prepared and had the testator execute it again, this time with himself and an employee of the firm, Saskia Reitveld, as witnesses. The testator paid Mr Smith's account before he left the office.

Mr Smith, in his testimony, confirms that this meeting took place, and produced a handwritten note prepared during the course of the meeting. His recollection is that the defendant was not present in the room during the meeting. He also had a detailed discussion with the testator about his background and the will. He did this because it was the first time that he had had an opportunity to speak to the testator in person about the will. The conversation with the testator included discussion about his family relationships. Mr Smith's notes confirm that the testator identified his stepchildren, advised that they had received money from their mother before her death, and provided some details about their children. The notes also refer to the fact that the testator had no biological children of his own, and there is a reference to "assets" which would suggest that there was discussion about the extent of the testator's estate. Mr Smith estimates that the length of the conversation was between 30 and 45 minutes.
I do not think that the discrepancy between the defendant and Mr Smith about whether she was present in the room during the meeting is significant. It is not suggested that this meeting did not take place nor that the will was not re-executed and correctly witnessed. It is also abundantly clear that Mr Smith had a detailed discussion with the testator about matters which would affect other claims upon the estate. The defendant must have been present for at least part of the meeting because she recalls the will being witnessed by Mr Smith and Ms Reitveld. Despite her recollection to the contrary, it is quite possible that she was present for some but not all of the meeting. For example, she did not recall discussion between Mr Smith and the testator about the testator's family background. I think this is the most likely explanation for the discrepancy. It has no bearing on my determination of the case.
All of these circumstances provide strong support for the conclusion that the idea to change the will to benefit the defendant emanated from and was essentially put into effect by the testator. His resolve to carry out the testamentary act is patent. He acted promptly, efficiently and in accordance with his lawyer's instructions, as he understood them. His resolve to execute the will must have been sufficient to deter Dr Flanagan from interfering, despite Dr Flanagan purportedly forming an opinion that the testator was lacking in testamentary capacity during the course of the consultation. The circumstances also demonstrate the passive role played by the defendant in this process. All of the professional consultations were initiated by the testator, and it was him who entered into the substantive discussions during the course of those consultations. The only role of the defendant was to accompany him at his request. I think it is obvious that the testator wanted to change his will to leave his estate to the defendant and knew that by executing the will prepared by Mr Smith, he would be achieving that outcome.

Events after the execution of the wills

There was a significant amount of evidence about events which took place between the execution of the third will on 25 January 2016 and the testator's death on 21 July 2017. The evidence is relevant only insofar as it supports inferences which inform the testamentary capacity of the testator, and his knowledge and approval of the third will in the period between 18 and 25 January 2016. The evidence has no other relevance to this case.
The defendant and her children continued to live with the testator in his house until his death. She describes the deterioration in his physical and mental health as time went on. As already noted, she kept a journal which provided the basis of her detailed evidence concerning events during that period. The overall impression from her evidence is that the testator's mood swings became more erratic, as did his attitude to her. She describes how he would ask her to leave, and then shortly after beg her to stay. This was a pattern of behaviour on his part which was repeated frequently. On occasions, he would ask her to marry him. In general terms, her description of the testator's health and attitude is reflected in the evidence of others who kept in contact with him during this period, including Ms Rowlings and the plaintiff. My overall impression is that the testator's confused and inconsistent behaviour was a symptom of his increasing age, frailty and declining health. This in all probability included a progressive deterioration of his cognitive capacity. None of this is surprising or inconsistent with the defendant's evidence.
Ms Rowlings gave evidence of her perception that the defendant was controlling of the testator, that the testator consistently expressed his desire that the defendant leave and that he asked her to do so many times, but that she refused to leave. The defendant's response to this evidence is that this would happen from time to time, but would then be immediately followed by gratitude for her presence and assistance, and a request that she stay with him. I accept the defendant's evidence about this question.
The defendant's opinion is that, as time went on, the testator was subjected to pressure by others concerning the decision he had made in relation to his estate. He was staying in touch with the plaintiff and her mother. The defendant does not suggest that the plaintiff was placing pressure on the testator but does suggest that her mother was doing so. I have no reason to doubt the defendant's description of a conversation she had with the plaintiff's mother on 28 March 2017, when she was told by her that she had no right to be living with the testator, and that she should leave the house. I have already referred to evidence which indicates that, from time to time, the father of the testator's stepsons communicated with the testator to press him to leave the house to the stepsons. According to the defendant, this pressure caused a considerable amount of aggravation and worry for the testator. It also confirms that the testator had discussed his testamentary intentions with others, which supports the existence of capacity and knowledge and approval.
The defendant's evidence is that she continued to carry out her side of the bargain by caring for the testator as his health declined, despite considerable adversity, including that arising from his erratic mood swings. I accept her evidence about this. This testimony is once again supported by the evidence of the defendant's parents. It can also be inferred, in any event, from the simple reality of the situation. The defendant did continue to live in the house with her children, and care for the testator during a lengthy period in which his health was obviously in significant decline, with consequent intensification of his care needs.
Some particular events of relevance which occurred during this period are as follows. According to the plaintiff, in mid-2016, the testator told her that he wanted her to have his car. She persuaded him to keep it but, in September, he became agitated with her because she had not collected it. Eventually, in December 2016, she did so. The car is now in the possession of her daughter.
According to Ms Rowlings, in April 2017, the testator asked her to take him to Mr Smith's office so that he could collect the third will and destroy it. Ms Rowlings says that this occurred in mid-2016, but she is clearly mistaken about this. The timing is confirmed by records of the legal firm. Mr Smith's evidence confirms that this occurred and that he was told by the testator that he wanted to destroy the will. Because the will could not be immediately located, it was not given to the testator until some days later. When the testator returned to the office to collect the will, he told Mr Smith that he now did not want to destroy it. In the end, Ms Rowlings' evidence confirms that he placed both the second and third wills in safe custody with his bank in Longford. They were left there by him until his death.
Approximately two weeks before his death, when the testator was in hospital, Mr Smith was asked by the defendant to attend the hospital because the testator wanted to see him. He was told that it was about the testator's estate. However, by that time, the opinion of treating staff was that the testator was unlikely to have capacity to provide instructions for an amendment or preparation of the will. Accordingly, Mr Smith did not pursue a conversation with the testator about this prior to his death.
A further matter of relevance to the relationship between the testator and the defendant in this period concerns the defendant's access to the testator's bank accounts and cash. The defendant's evidence is that from an early point in their relationship, he had provided her with access to his bank accounts, specifically for the purpose of enabling her to withdraw money at his request, and provide it to him. As time went on, this became a regular task. Her evidence was that she never took any of this money for her own purposes. I accept her evidence about this. Apart from anything else, the evidence of Mr Smith and records from his legal firm confirm that after the testator's death, the defendant attended at his office and paid over cash in the sum of $5,832.95, which she said was the cash retained by the testator at the time of his death. This is clearly correct, with this sum consistent with bank records showing withdrawals from the testator' bank account in the period leading up to his death. She took the money to the lawyer unilaterally, without being requested by anyone to do so and before those administering the estate would have had an opportunity to assess the extent of any outstanding cash. In my view, this provides further confirmation of the honesty of the defendant. Although the effect of the third will is that she will inherit this money in any event, she did not act on this assumption, but paid the money over in a transparent and patently honest way.

The testator's neighbour

A relevant piece of evidence was provided by a neighbour of the testator, David Reid. Mr Reid's unchallenged evidence is that during 2015 and 2016, he had come to know the testator very well and they were regular visitors to each other's homes. They had many and frequent discussions over a range of different topics. He found the testator to be astute and articulate, although he was also expressing emotion and grief about the passing of his wives. He recalls that, in late 2015, the testator sought his advice on a proposal that he ask the defendant to move in with him to help him. The testator was able to explain the benefit he believed he would derive from this arrangement. Mr Reid's evidence is that after the defendant had moved in to the testator's house, he was told by the testator on a number of occasions that the arrangement was beneficial, that he enjoyed the company and that he had become reliant on the defendant's support. From time to time, he would speak to Mr Reid about his discontent with his stepsons, that he had lent them money and was disappointed that this did not improve their behaviour towards him. Mr Reid's evidence is that he seemed happier after the defendant had moved into the house. He was told about the change of will in January 2016, and expresses the opinion that the testator "had his wits about him" at that time.
This evidence clearly supports the proposition that the idea to change the will emanated from the testator. It also supports the conclusion that he had capacity to understand the nature of his testamentary act, and supports his reasoning in relation to changing his will.

Opinion evidence concerning testamentary capacity

As already noted, the issue of testamentary capacity is a matter for legal determination. However, relevant opinion evidence, while not determinative, is relevant and will be taken into account.
Dr Flanagan, in his evidence, expressed the opinion that the testator "did not have testamentary capacity on that particular day", 22 January 2016. His opinion is based on his observations during the course of the consultation, including that the testator's mood was labile, that he believed that the testator had confabulated in respect of an injury in his right lower leg, and that he had difficulty with some questions, including recalling the name of the Prime Minister, and a street address which the doctor had informed him about shortly before for the purposes of the Centrelink form. He did not, however, conduct any tests relevant to an assessment of cognitive capacity, and agreed that a couple of weeks later, he completed a medical form which would enable the testator to retain his driver's licence. He was unable to describe in a convincing way his understanding of the legal test of testamentary capacity. However, he maintained his opinion that on the day in question, the testator demonstrated cognitive impairment.
On the other hand, Mr Smith expressed an opinion that, at all times that he dealt with the testator concerning the preparation and execution of the second and third wills, the testator possessed the requisite testamentary capacity. In forming this opinion, Mr Smith relied on his conversations with the testator, including during the consultation on 25 January 2016, as well as his lengthy experience as a lawyer involved in the preparation of wills. He explained that his view that the will was problematic arose from the fact that the testator wanted to leave his entire estate to his carer. It had nothing to do with concerns about the question of testamentary capacity.
There are two other pieces of expert evidence which inform this question. The defendant's mother is an experienced psychiatric nurse and, in my view, was clearly qualified by her training and experience to express an opinion about the existence of testamentary capacity. Of course, she is not independent, but that is a matter that goes to the weight of her opinion, and the attribution of weight is dependent upon my assessment of her credibility. As I have already said, I found her to be a credible witness and, accordingly, will take into account her opinion concerning the testator's cognitive capacity at the time that he made the third will. Mrs Donald expressed the opinion that the testator did have capacity. Her opinion about this was based on her contact with and conversations with him between the time that the defendant met him and when he made the third will, as well as afterwards. Her evidence is that she had spoken to him numerous times during that period, although there were sometimes considerable gaps between each conversation. She also prepared a mental state examination retrospectively, based on her observations of him during this period. She described this examination as a tool regularly used by her when she was working as a psychiatric nurse. The clinical purpose of the examination was to provide information for use by clinicians when assessing cognitive capacity.
I accept her evidence and place weight on her opinion. It is clearly not determinative of itself, but I will have regard to it when assessing the question of the existence of testamentary capacity at the relevant time.
An opinion in relation to this question was also expressed by Christine Harget-White. Ms Harget-White is a retired general practitioner. She was the testator's general practitioner when he was around the age of 60, and had remained close friends with him until his death. Her estimate was that, over that period, they spoke by telephone on average once a fortnight. In early 2016, she had a telephone conversation with the testator when he told her that he had decided to change his will to leave his house to the defendant. She advised that he should have a mini-mental state exam. Her evidence was that she recommended this, not because she believed he lacked capacity, but in view of the decision to leave the bulk of his estate to a person he had not known for long. In the end, the testator did not have that examination.
Ms Harget-White expressed the opinion in her evidence that the testator had testamentary capacity when he executed the relevant wills. Her evidence addressed the critical components of testamentary capacity. In particular, she expressed the opinion that "He clearly knew what he was doing and why he was doing it. He knew who the other people to whom he ought give consideration were, and why he instead chose to leave his estate to [the defendant]." She also expressed the opinion that he was of sound mind and understanding, and not suffering from delusions which might have impacted on his ability to make decisions about his estate. Her opinion is that he had testamentary capacity until March or April 2017, that is shortly before his death.

Resolution

Having regard to all of the evidence, I am positively satisfied that the testator had requisite testamentary capacity at the time that he provided instructions for and executed the third will. My finding in that regard is based on the whole of the evidence, including as to the circumstances in which the arrangement came about, the fact that it was the testator who made arrangements for the change of will, and that he then followed through on those arrangements in an orderly and logical fashion. It is also supported by my assessment of the relevant expert evidence. I do not think that it is necessary for me to reconcile the opinion of Dr Harget-White and Dr Flanagan, but, in any event, to the extent that there was conflict, I prefer the opinion of Dr Harget-White. Her opinions were based on a lengthy period of regular conversations with the testator, including leading to and around the relevant period. Her opinion clearly demonstrated knowledge of the requisite legal test and specifically addressed that test. I found her reasons to be logical, based in fact and persuasive. On the other hand, it was not possible for me to determine whether Dr Flanagan had given thought to the elements of the requisite test when he expressed an opinion that the testator lacked testamentary capacity. He was not expecting the testator to bring in a will, and the consultation concerned not just that, but other matters. I found it unusual that, notwithstanding his opinion concerning the question of testamentary capacity, he would be prepared to witness the will, although I do not draw any conclusion from that circumstance. His opinion acknowledged that it was based on, and limited by, his perception on the day in question. I observed that within a relatively short time after that day, he had signed forms which would permit the testator to continue to drive. Although the tests are different, I was not comfortable that Dr Flanagan's opinion was firmly held.
Further, Dr Harget-White's opinion is supported by the opinions expressed by Mrs Donald and Mr Smith. It is also entirely consistent with the objective circumstances. The arrangement was proposed by the testator, it was for his benefit, and it was entirely logical. He expressed persuasive reasons for not leaving his estate to his stepchildren or step-grandchildren. He clearly wanted to avoid having to spend his final years in residential care, and saw the gifting of his estate as appropriate consideration for the commitment made to him by the defendant. Although he had not known her for long, he was asking her to provide him with intensive full-time care for a period which could have been relatively short, but which had real potential to last for many years. His reasons were expressed not just to the defendant, but also to many other people. It is, in my view, patently obvious that he had the capacity to give proper consideration to those reasons, and to make logical decisions based on same.
The simplicity of the will was raised by Mr Meredith as a suspicious circumstance concerning the question of capacity. This arises from the gift of the entire estate to the defendant, and the failure to provide for gifts of specific items of property such as his car. I do not agree that there is any concern arising from this issue. Although his agreement with the defendant was to leave her his house, it is clear that the house constitutes the most significant asset of the estate and contributes most of its net value. Further, it is apparent from the testator's later actions that he planned to give away certain assets before his death, and actually did so in respect of his car. In my view, the terms of the third will are entirely consistent with the testator's intention as expressed in his agreement with the defendant.

It follows from these findings that the testator also knew and approved of the contents of the will. I think it is doubtful that any suspicious circumstances exist in respect of this question, but in any event, the evidence has dispelled any such suspicion. The will was simple and in terms which reflected precisely the instructions which the testator gave to Mr Smith. The will accords with the arrangement proposed to the defendant by the testator, for reasons which benefitted him. It deals with an estate which was not particularly large or complicated. Any other claim on the estate was tenuous, and many of those who had such a claim, such as the stepsons, had been rejected as beneficiaries by the testator long ago. I am satisfied that the change to his testamentary arrangements was entirely the testator's idea, and he was not influenced in any way by the defendant. On the contrary, it took some time for him to persuade her to accept the arrangement. When she did, she applied herself to it in a diligent and committed way.
I find for the defendant in respect of the claim and the counter-claim. I pronounce for the force and validity of the last will and testament of the testator dated 25 January 2016. I order that there be a grant of probate in solemn form to the defendant in respect of that will.