Muir v Rosemary Laycock (by her litigation guardian Charles Laycock)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 03413

IN THE MATTER OF the Will and Estate of CHARMIAN LOUISE WATT, deceased

BETWEEN:

MICHAEL DOUGLAS ROSS MUIR (in his capacity as Executor and Trustee of the Estate of CHARMIAN LOUISE WATT, deceased)	Plaintiff
- and -
ROSEMARY JEAN LAYCOCK (by her litigation guardian CHARLES LAYCOCK)	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 14, 17, 18, 19 and 28 February 2025
DATE OF JUDGMENT:	23 May 2025
CASE MAY BE CITED AS:	Muir v Rosemary Laycock (by her litigation guardian Charles Laycock)
MEDIUM NEUTRAL CITATION:	[2025] VSC 287

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WILLS AND ESTATES – Testamentary capacity – Knowledge and approval – Challenge to will of the deceased – Testator with dementia – Testator made a bequest to the defendant equal to 2.5% of her estate – Will prepared by solicitor who was satisfied testator had testamentary capacity when providing instructions for preparation of will and also when the will was executed – Testator assessed for testamentary capacity six months after the will was executed by a medical practitioner who considered that testator did not have testamentary capacity – Significant cognitive decline during the six month period between execution of will and medical assessment of testamentary capacity – Court satisfied of testamentary capacity and knowledge and approval – Testator’s will to be admitted to probate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	Nevett Ford Lawyers
For the Defendant	Mr R Antill	White Cleland Pty Ltd

HIS HONOUR:

Introduction

In this judgment, without any disrespect intended, I shall refer to the principal parties by their first names.

Charmian Louise Watt (‘Charmian’) died on 2 November 2020. She was 95 years of age. Charmian never married or had children. Prior to her death, Charmian executed a will on 18 October 2010. At the time of her death, Charmian’s closest living relative was her niece, Rosemary Jean Laycock (‘Rosemary’). Prior to the execution of the will, Rosemary had been appointed as Charmian’s guardian and attorney pursuant to an enduring power of guardianship and enduring power of attorney executed on 12 July 2010.

Charmian was a fiercely independent woman. The hallmarks of her independence were her ability to continue driving well into old age and to also continue living independently at her home in Armadale. By a letter dated 23 September 2010, Charmian was advised by VicRoads that her driving licence had been suspended on medical grounds. At around the same time, Rosemary discussed with Charmian the prospect of her moving into permanent residential care. Charmian was very angry with Rosemary because she believed, correctly, that Rosemary had been involved in the suspension of her licence. Charmian was also very distressed at the prospect of being placed into a nursing home and was very angry with Rosemary when she raised the issue in September 2010.

In late September 2010, within days of being advised of the suspension of her licence, Charmian contacted a solicitor, Mr Michael Muir, and provided him with instructions for the preparation of her will. Under the terms of her will, Charmian’s estate was divided into 20 parts. Nine of these parts were bequeathed to her second cousin, Denise Brookes (‘Denise’). Nine parts of the estate were bequeathed to Denise’s daughter, Cilla Brookes (‘Cilla’), and Denise’s sons, Sasha Brookes (‘Sasha’) and Simon Brookes (‘Simon’). The remaining two parts, which equated to 10% of the estate, were bequeathed to Rosemary and her three sons. Consequently, Rosemary was bequeathed 2.5% of Charmian’s estate. The relatively small bequest to Rosemary reflected Charmian’s anger towards her at the time the will was prepared.

The inventory of assets and liabilities filed with the application for grant of probate recorded the value of Charmian’s estate as being $1,487,788.64.[1] The size of the estate at the time the will was executed was of substantially more value. The inventory of assets and liabilities did not include the value of Charmian’s residence in Armadale, which was sold by Rosemary on 16 November 2012 for $2,480,000.[2] The property was sold to fund Charmian’s aged care. In addition to the value of the Armadale residence, it is common ground that Charmian had a significant share portfolio in October 2010, which was valued in excess of $2 million.
[1]As at 2 March 2021.
[2]Consolidated Court Book (‘CB’) 1831, Transfer of Land Form dated 16 November 2012.

On 12 November 2020, Rosemary filed a caveat with the Registrar of Probates. By amended grounds of objection dated 24 September 2024, Rosemary contends that Charmian lacked testamentary capacity shortly before and at the time of executing the will. Rosemary also contends that Charmian did not know and approve the contents of the will and that it was signed in suspicious circumstances. If either of these grounds of objection are upheld, Rosemary will be the sole beneficiary of Charmian’s estate on intestacy.

Charmian had been experiencing cognitive decline for several years prior to October 2010. Charmian was diagnosed with dementia on 15 September 2010 by Dr Simon Scharf and Dr Chris Moran.[3] Dr Scharf and Dr Moran were unable to classify the sub-type of dementia, but considered that it was likely that Charmian had an element of Alzheimer’s disease with a component of vascular disease. Notwithstanding this diagnosis, when the will was executed on 18 October 2010, Charmian had testamentary capacity and knew and approved the contents of the will. Accordingly, the will dated 18 October 2010 will be admitted to probate.
[3]CB 17 – 19, Letter from Dr Scharf and Dr Moran to Dr Wright dated 15 September 2010.

The witnesses who gave evidence in the present proceeding
Rosemary Laycock

On 13 June 2023, Rosemary’s husband Charles was appointed her litigation guardian. The evidence in support of the application for the appointment of a litigation guardian called into question Rosemary’s ability to give evidence in the proceeding. Shortly after the commencement of the trial, two further affidavits were filed[4] which confirmed Rosemary’s ability to give evidence.
[4]CB 1797 - 1808, Affidavit of Cassandra Legg dated 18 February 2025; CB 1809 - 1825, Affidavit of Christopher Galagher dated 14 February 2025.

Counsel for the defendant submitted that the weight to be given to Rosemary’s evidence should not be diminished by reason of the appointment of Charles as her litigation guardian. I accept this submission. I found Rosemary to be a credible witness. In some respects Rosemary’s direct oral evidence was inconsistent with statements attributed to her in the notes made by health practitioners in the period July 2010 to December 2010. Wherever there is such an inconsistency I have placed greater weight on Rosemary’s direct oral evidence.

Rosemary is Charmian’s niece[5] and goddaughter.[6] Before Rosemary retired she was a clinical psychologist.[7] From 12 July 2010, Rosemary held a financial power of attorney and a guardianship over Charmian.[8]
[5]Transcript page (‘T’) 532 line (‘L’) 28.
[6]T 533 L 30.
[7]T 532 L 21 – 22.
[8]T 537 L 12 – 13.

Rosemary gave evidence that the relationship between Charmian, Rosemary’s father Randal Watt and their parents was very close.[9] Randal and Charmian were also close.[10] Charmian often required Randal’s help around the house,[11] and Randal took Charmian to church on Thursdays.[12] Charmian had few other friends and kept to herself.[13]
[9]T 534 L 3 – 4.
[10]T 534 L 2.
[11]T 535 L 18 – 21.
[12]T 581 L 5 – 7.
[13]T 581 L 3 – 9.

According to Rosemary, Charmian was ‘part of our family’ and would attend every family occasion.[14] This included Rosemary and Charles’ wedding[15] and Rosemary’s sister Elizabeth’s funeral.[16] Charmian would also attend the family Christmas functions with Rosemary and her family[17] and other family birthdays.[18] Rosemary recounted a family tradition around Mother’s Day which would celebrate Charmian’s birthday, Nicholas’ birthday and Mother’s Day over a series of events.[19] Charmian also attended Rosemary’s sons Lachlan, Nicholas and Rupert’s 21^st birthdays.[20] Charmian attended Nicholas’ wedding.[21] Charmian would occasionally take Rosemary’s family to restaurants for dinner.[22]
[14]T 550 L 14 – 15.
[15]T 551 L 25.
[16]T 551 L 28.
[17]T 551 L 1.
[18]T 551 L 11.
[19]T 551 L 14 – 21.
[20]T 550 L 17 – 30.
[21]T 551 L 22 – 24.
[22]T 551 L 18 – 21.

Rosemary had ‘always been close’ with Charmian.[23] Her evidence was that their relationship had been friendly and warm.[24] She described Charmian as ‘feisty’ and that as her dementia increased Charmian became more feisty and crabby.[25]
[23]T 548 L 14.
[24]T 548 L 20 – 22.
[25]T 548 L 26 – 28.

After Randal went into care in about 2000,[26] Rosemary was the sole provider of assistance to Charmian.[27] She would visit Charmian multiple times a week,[28] and would pay Charmian’s bills from Charmian’s account.[29] Rosemary had keys to Charmian’s house and this remained the case whenever the locks were changed.[30] Rosemary would take Charmian to medical appointments.
[26]T 536 L 31.
[27]T 535 L 31.
[28]T 537 L 5 – 6.
[29]T 537 L 7 – 11.
[30]T 555 L 13 – 28.

Rosemary gave evidence that in about July 2010 Charmian’s home was ‘chaotic’ – papers were strewn around, dirty clothes were jammed in the laundry chute[31] and the kitchen was untidy.[32] Rosemary considered that at this time Charmian was experiencing paranoia and anxiety.[33] Rosemary accepted that she was not qualified to make an assessment of whether Charmian was, in fact, paranoid.[34] Rosemary’s evidence was that Charmian would refuse to let people enter her house.[35]
[31]T 540 L 26 – T 541 L 5.
[32]T 541 L 11 – 12.
[33]T 543 L 12 – 13.
[34]T 561 L 1 – 4.
[35]T 543 L 14 – 20.

Rosemary gave evidence that Charmian asked her to contact Mr Warren Woolcock to organise a power of attorney and guardianship.[36] She attended the meeting with Mr Woolcock and Charmian but left when the making of a will was discussed.[37]
[36]T 539 L 4.
[37]T 539 L 6 – 14.

Around this time, her relationship with Charmian began to change. Rosemary said Charmian became ‘grumpy’ and that Charmian would reject offers to spend time together.[38] Rosemary would have to approve Charmian’s withdrawal of funds from Charmian’s bank account.[39]
[38]T 548 L 29 – T 549 L 6.
[39]T 549 L 22 – T 550 L 3.

Rosemary placed Charmian in a Bupa nursing home in October 2011 after Charmian was found walking the streets in her nightgown and was admitted to hospital.[40]
[40]T 563 L 27 – T 564 L 17.

Charles Laycock

Charles is Rosemary’s husband.[41] They married in 1975.[42] Charles is currently a company director.[43] On 13 June 2023, Charles was appointed Rosemary’s litigation guardian by the order of Judicial Registrar Keith.
[41]T 438 T 21.
[42]T 438 L 22 – 24.
[43]T 456 L 13 - 22.

Charles first met Charmian in 1970,[44] when Charmian visited Rosemary after Rosemary’s sister’s death.[45] He said that he then met her at Charmian’s mother Louise’s birthday party.[46] From this point, he went to Randal and Randal’s wife Jean Watt’s house for their families’ Christmas functions and Charmian ‘was always there’.[47]
[44]T 439 L 12 – 13.
[45]T 439 L 14 – 18.
[46]T 439 L 20 – 21.
[47]T 439 L 21 – 22.

Charles gave evidence that Charmian was at most major functions,[48] including his and Rosemary’s wedding,[49] Elizabeth’s funeral[50] and Charmian’s mother Louise’s birthday parties.[51] Charmian attended Nicholas’ wedding[52] and the 21^st birthday party for each of Charles’ sons.[53] Charles recalled Charmian visiting the hospital when his and Rosemary’s sons, Lachlan, Nicholas and Rupert, were each born.[54] Charmian attended their christening and would regularly visit to see them.[55] Charmian would call each of the three sons by nicknames: Lachlan was ‘Lachie’, Nicholas was called ‘Chicky’ and Rupert was called ‘Rupy’.[56]
[48]T 439 L 28.
[49]T 439 L 27.
[50]T 448 L 18 – 19.
[51]T 442 L 21 – 23.
[52]T 444 L 14 – 15.
[53]T 444 L 22 – 26.
[54]T 442 L 9 – 12.
[55]T 442 L 12 – 14.
[56]T 442 L 15 – 18.

When Charles and Rosemary hosted Christmas, Charmian would attend.[57] Charmian would then have an extended lunch or dinner with her second cousins, the Deaseys.[58]
[57]T 443 L 17 – 22.
[58]T 444 L 1 – 3. Charles said that this meant Randall Deasey and his ‘mob’: T 444 L 3 – 4 but did not know for sure: T 459 L 8 – 14.

Charmian’s brother Randal and his wife Jean lived ‘about 150 metres away’ from Charmian, who lived with her mother Louise.[59] Charles considered that Randal and Charmian’s relationship was good but Jean merely ‘tolerated’ Charmian.[60]
[59]T 440 L 1 – 11.
[60]T 440 L 27 – T 441 L 2.

As to Charles’ relationship with Charmian, he ‘never had a cross word’ with her[61] and would sit next to her at functions.[62] However, he did not think Charmian ‘suffered fools’.[63] As Charmian was intelligent, they would have good conversations together.[64] Charmian wrote to Charles after Charles’ mother passed.[65] In Charmian’s later years, she become ‘more difficult’ and would say inappropriate things which would cause controversy.[66]
[61]T 441 L 8.
[62]T 441 L 9 – 10.
[63]T 457 L 16 – 17.
[64]T 441 L 10 – 12.
[65]T 453 L 20 – 30; Further Supplemental Court Book 1002, Letter from Charmian to Charles Laycock dated 22 June 2005.
[66]T 444 L 25 – T 445 L 5.

Charles gave evidence as to Rosemary and Charmian’s relationship. He said that they were ‘very close’ and that although Charmian ‘annoyed’ Rosemary, Rosemary was always good with her.[67] He said that there was no ‘real friction’ between Rosemary and Charmian and that Rosemary was always nice to Charmian and would help in any way she could.[68] According to Charles, Charmian organised formal family photographs of the Laycocks and Rosemary’s parents.[69]
[67]T 441 L 14 – 18.
[68]T 441 L 19 – 21.
[69]T 445 L 6 – 11.

Charles was taken to a series of photographs. They included photographs of:

(i) Rosemary and Charmian at various points in Rosemary’s life;[70]
[70]T 447 L 29 – T 448 L 4; Further Supplemental Court Book 985, Photograph of Rosemary and Charmian in around 1964; T 450 L 17 – 22; Further Supplemental Court Book 992, Photograph of Rosemary and Charmian at Christmas lunch in mid-1980s; T 452 L 27 – T 453 L 3; Further Supplemental Court Book 998, Photograph of Rosemary and Charmian at Mt Martha dated 5 April 2016; T 453 T 7 – 13; Further Supplemental Court Book 1000, Photograph of Rosemary and Charmian at Christmas in around 2012; T 453 L 14 – 19; Further Supplemental Court Book 1001, Photograph of Rosemary and Charmian at Bupa Aged Care in around 2020.

(ii) Rosemary, Rosemary’s sister Elizabeth and Charmian at Falls Creek;[71]
[71]T 448 L 6 – 15; Further Supplemental Court Book 986, Photograph of Charmian, Rosemary and Elizabeth at Falls Creek in around 1966.

(iii) Charmian at various family Christmas lunches;[72]
[72]T 448 L 23 – T 449 L 3; Further Supplemental Court Book 987, Photograph of Christmas lunch at Tower Court, Armadale in around 1970; T 449 L 4 – 9; Further Supplemental Court Book 988, Photograph of Christmas lunch at Tower Court, Armadale in around 1970; T 449 L 10 – 19; Further Supplemental Court Book 989, Photograph of Christmas lunch in around 1970; T 450 L 17 – 22; Further Supplemental Court Book 992, Photograph of Rosemary and Charmian at Christmas lunch in mid-1980s; T 450 L 23 – 30; Further Supplemental Court Book 993, Photograph of Christmas lunch at the Laycock’s home in mid-1980s.

(iv) Charmian holding Lachlan and Nicholas as infants;[73]
[73]T 450 L 9 – 13; Further Supplemental Court Book 991, Photograph of Charmian holding Lachlan Laycock in around 1978; T 450 L 14 – 16; Further Supplemental Court Book 991, Photograph of Charmian with Rosemary holding Nicholas Laycock at his christening in around 1982.

(v) Charmian, Rosemary, Rupert and others at Nicholas’ 2010 wedding;[74]
[74]T 450 L 31 – T 451 L 26; Further Supplemental Court Book 994, Photograph of Nicholas Laycock and Valery Cole’s wedding dated 20 March 2010.

(vi) Rupert and Charmian, and Charmian and Rosemary, in 2012;[75] and

(vii) Rosemary and Charmian the day after Rupert’s wedding in approximately 2015.[76]

[75]T 451 L 27 – T 452 L 7; Further Supplemental Court Book 995, Photograph of Rupert and Charmian in around 2012; T 452 L 8 – 11; Further Supplemental Court Book 996, Photograph of Rosemary and Charmian in around 2012.

[76]T 452 L 27 – T 453 L 3; Further Supplemental Court Book 998, Photograph of Rosemary and Charmian at Mt Martha dated 5 April 2016.

Sasha Brookes

Sasha was born in 1973.[77] He is the son of Denise and grandson of Alice Pringle (nee Deasey).[78] Alice was Charmian’s first cousin.[79]
[77]T 196 L 28.
[78]T 196 L 22 – 25.
[79]T 196 L 26 – 27.

Sasha gave evidence about the relationship between Alice and Charmian. They went on a trip to the United Kingdom by ship between 1948 and 1949.[80] He was taken to record indexes from incoming passenger lists sourced from ancestry.com that showed Alice, Denise and Charmian’s arrival in London.[81] Alice, Denise and Charmian went because Alice’s husband Grant Pringle was attending a training course for the Royal Australian Navy in England.[82]
[80]T 197 L 12 – 14.
[81]T 200 L 23 – T 201 L 25; CB 1009, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Alice Pringle; CB 1013, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Charmian; CB 1017, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Denise Pringle; CB 1021, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Julian Pringle.
[82]T 201 L 26 – 30.

Sasha had located letters written by Denise to her grandmother about the trip.[83] Sasha was also taken to a series of photographs of his family. The first was a photograph of Charmian, Denise and his uncle Julian Pringle.[84] The second was a photograph of Charmian and other members of the extended family taken at Alice’s 90^th birthday.[85] The third was a photograph of Sasha and Denise at the same function.[86] Sasha was also taken to a Christmas card Charmian sent to Denise in 2008.[87]
[83]CB 1025 – 1031, Various letters from Denise to her grandmother ‘Azma’.
[84]T 204 L 1 – 4; CB 1033, Photograph of Charmian, Julian and Denise in around 1950.
[85]T 205 L 1 – 6; CB 1036, Photograph of Charmian, Denis Deasey and Hugh Deasey at Alice’s 90^th birthday dated 2003.
[86]T 205 L 23 – 28; CB 1035, Photograph of Sasha and Denise at Alice’s 90^th birthday dated 2003.
[87]T 209 L 11 – 18; CB 1040, Christmas card from Charmian to Denise dated 25 December 2008.

Sasha said that his earliest memory of Charmian was from the early 1980s when he was 10 years old. Charmian invited Sasha and Denise to the Treble Clef Restaurant at the Arts Centre for lunch before Christmas.[88] He said that from about that time he would see Charmian once a year during the Christmas period for a Christmas gathering.[89] It was a tradition that a member of their family would host Christmas and invite members of the extended family including Charmian.[90] It was often Alice or her siblings who would host but not Denise.[91] He said that he would have received at least one Christmas or birthday card from Charmian but never sent any such card to Charmian.[92]
[88]T 204 L 5 – 17.
[89]T 204 L 22 – 27.
[90]T 204 L 24 – 27.
[91]T 214 L 5 – 20.
[92]T 217 L 2 – 9.

Sasha gave evidence that in the early 2000s he attended family functions with Charmian. He attended a family wedding that Charmian also attended.[93]
[93]T 205 L 29 – T 206 L 3.

His evidence was that in around 2005 or 2006, he went to a cinema in Balwyn to watch ‘The Da Vinci Code’ with Charmian, Cilla and Denise. He said that it was a ‘special occasion’ and that Charmian had driven herself to the cinema to meet with Sasha and his family.[94]
[94]T 206 L 4 – 15.

In December 2007, Charmian, Cilla and Denise attended Sasha’s dance showcase at Dance Dynamics.[95] Sasha also gave evidence about correspondence from Giselle, the former wife of Alice’s brother Denison Deasey, sent to Charmian and a reply from Denise.[96] Both Sasha and Charmian attended Alice’s funeral in 2009.[97] Sasha became aware he was a beneficiary of Charmian’s will in December 2020.[98]
[95]T 206 L 23 – 30.
[96]T 206 L 31 – 207 L 23.
[97]T 208 L 21 – 27.
[98]T 217 L 20 – 23.

Simon Brookes

Simon is a data engineer with the Australian Bureau of Statistics.[99] He was born in January 1964.[100] He is the son of Denise and grandson of Alice. He is about 10 years older than Sasha.[101]
[99]T 219 L 19 – 20.
[100]T 219 L 31.
[101]T 220 L 1 – 4.

Simon gave evidence that his earliest memory of Charmian was Christmas at his great-aunt Louise’s house in Kew with her husband Guy Bakewell.[102] Louise is Alice’s sister.[103] He said that this was a family tradition that continued until about 1975. Charmian and her mother Louise Watt were always present at family Christmas and asking about his and his siblings’ schooling.[104] They would give presents at Christmas and Denise and Alice would be present.[105]
[102]T 220 L 5 – 10.
[103]T 220 L 11 – 17.
[104]T 220 L 18 – 24.
[105]T 220 L 28 – T 221 L 1.

Simon also gave evidence that each year Louise Watt had a birthday party at which he and his family would see Charmian.[106] He said that Charmian was the ‘face [his family] really knew’.[107] These parties continued up until about 1980.[108]
[106]T 221 L 2 – 12.
[107]T 221 L 9.
[108]T 222 L 6 – 7.

After Guy died in about 1975,[109] the family Christmas functions shifted to Alice Pringle’s house.[110] Charmian would attend after visiting the Watt family’s Christmas party.[111] Charmian continued to give Simon and his siblings presents.[112] This continued until 1985.[113] After 1985, the Christmas parties shifted location again to the northern suburbs of Melbourne[114] to be hosted by Alice’s siblings and their children.[115] Simon continued to attend, as did Charmian.[116]
[109]T 220 L 9.
[110]T 221 L 24 – 26.
[111]T 221 L 27 – 28.
[112]T 222 L 12 – 17.
[113]T 221 L 29.
[114]T 223 L 4 – 5.
[115]T 226 L 13 – T 227 L 19.
[116]T 223 L 5 – 8.

Simon was taken to a series of photographs. They included a photograph of Alice and Charmian at Alice’s 90^th birthday function.[117] The function was at Alice’s Point Lonsdale house.[118] Another photograph showed Charmian and Denise at a family wedding in Montrose.[119] He recalled that at the function Denise and Charmian ‘stuck together’ because there were many people they did not know and had lunch.[120]
[117]T 223 L 10 – 25; CB 1034, Photograph of Alice’s 90^th birthday dated 2003.
[118]T 223 L 28 – 29.
[119]T 224 L 5 – 21; CB 1037, Photograph of Charmian and Denise at Patrick Deasey and Jodie’s wedding dated 2004.
[120]T 224 L 23 – 28.

Simon also recalled Charmian attending Alice’s funeral in September 2009.[121] Simon drove Charmian to and from Point Lonsdale for the funeral.[122] He drove Charmian’s car.[123] He said that it was a lovely trip and the longest time that he had talked to Charmian.[124]
[121]T 225 L 9 – 13.
[122]T 225 L 14 – 17.
[123]T 225 L 21 - 22
[124]T 225 L 18 – 20.

He learnt that Charmian had entered a nursing home in 2011.[125] He visited her once while she was in the nursing home.[126]
[125]T 225 L 27 – 30.
[126]T 226 L 4 – 6.

Cilla Brookes

Cilla was born in 1969.[127] She is the daughter of Denise and granddaughter of Alice.[128] She is the younger sister of Simon and Vicki Brookes[129] and the older sister of Sasha.[130]
[127]T 363 L 20.
[128]T 363 L 21 – 29.
[129]Vicki Brookes did not give evidence in this proceeding and is not a named beneficiary of the will.
[130]T 364 L 6 – 9.

After practising as a solicitor, she signed the bar roll in 2007 and has been a barrister since.[131] Before she was a barrister, she was employed at Darrer Muir Fleiter Lawyers, Equity Trustees, Victoria Legal Aid, Victorian Aboriginal Legal Service and the Department of Human Services.[132]
[131]T 362 L 25 – 29.
[132]T 362 L 30 – T 363 L 11.

Darrer Muir Fleiter Lawyers was Cilla’s first job after completing her legal studies and she was employed by the firm for about 12 months in 2000 to 2001.[133] She worked with Mr Fleiter.[134] Mr Muir was one of the partners at that firm when she worked there.[135]
[133]T 363 L 13 – 16.
[134]T 370 L 16 – 18.
[135]T 370 L 13 – 15.

Cilla gave evidence that Alice and Charmian were close and that Charmian would have known Alice for all of her life.[136] She also gave evidence that her mother Denise and Charmian were close.[137] Although they were second cousins, Denise being the eldest and Charmian as the youngest, they were ‘part of the same’ generation.[138] She recalled that Charmian would often speak of Denise and, in her view, they would seek each other out and spend time together.[139] She thought that they loved each other, were like ‘old friends’ and that Denise looked up to Charm.[140]
[136]T 363 L 30 – T 364 L 3.
[137]T 372 L 27.
[138]T 377 L 19 – 26.
[139]T 373 L 2 – 4.
[140]T 373 L 4 – 10.

Cilla described Charmian as her ‘close friend’.[141] Cilla’s earliest memory of Charmian was seeing Charmian at the house of her great-aunt Louise in about 1974 or 1975.[142] She remembered Charmian’s warmth and feeling calm at the house.[143] She saw Charmian every Christmas.[144] The Deasey family, which included Charmian, had Christmas functions at Louise’s house. Once Guy passed away and Louise moved houses, the yearly Christmas event moved to Alice’s house.[145] In the 1990s, the annual Christmas party moved to other members of the Deasey family’s houses[146] and she continued to see Charmian at the Christmas parties.[147] She recalled receiving presents from Charmian including a Kosta Boda glass bird Christmas decoration in a red box.[148] Cilla cherished this for a number of years.[149] Cilla also recalled Charmian gifting Sasha a t-shirt which he ‘wore to death’.[150] Sasha receiving a new t-shirt was of note because Cilla’s family was ‘not a family of … great means’ and they had ‘hand-me-down op shop clothes’.[151]
[141]T 372 L 24.
[142]T 365 L 25 – 29; T 366 L 2 – 4; T 378 L 31 – T 379 L 2.
[143]T 365 L 31 – T 366 L 1.
[144]T 366 L 8.
[145]T 366 L 9 – 17.
[146]T 366 L 17 – 21.
[147]T 367 L 1 – 3.
[148]T 367 L 19 – 24; T 379 L 4 – 5.
[149]T 367 L 24.
[150]T 367 L 25 – 28.
[151]T 367 L 28 – T 368 L 2.

Alice hosted a party called ‘The Scorpion Party’ in or around November of each year.[152] Cilla could not recall exactly but thought Charmian attended those parties.[153]
[152]T 366 L 23 – 30.
[153]T 366 L 25 – 27.

In the early 2000s, Denise Brookes had a card business. Cilla and Denise visited Charmian at the Performing Arts Museum because Denise sold cards to the Performing Arts Museum.[154] Cilla was taken to a photograph of Cilla, Denise and Charmian at Sasha’s dance showcase at Dance Dynamics.[155]
[154]T 367 L 8 – 17.
[155]T 369 L 8 – 21; CB 1038, Photograph of Cilla, Denise and Charmian at Dance Dynamics Showcase Ball dated 2007.

After Cilla became a barrister in 2007, Cilla began to see Charmian independently of Denise.[156] Cilla would have light dinner or sandwiches at Charmian’s house on the way home from work or go to shows with her.[157] This was pre-organised.[158] They saw Miss Saigon in approximately 2007 or 2008,[159] Wicked in 2009[160] and Swan Lake.[161] The activities they did together were ‘old fashioned’.[162] By the middle of 2009, Cilla was speaking to or seeing Charmian once every three weeks.[163] This pattern continued for 10 months to a year[164] and finished around 2010.[165] During this period Cilla considered that Charmian ‘appeared to be happy’.[166]
[156]T 368 L 14 – 15.
[157]T 368 L 15 – 18; T 379 L 26 - 28.
[158]T 380 L 1 – 6.
[159]T 368 L 19 - 21.
[160]T 368 L 21 – 22.
[161]T 368 L 22 – 23.
[162]T 388 L 23 – 24.
[163]T 368 L 29 – 31; T 380 L 12 – 23.
[164]T 369 L 6 – 7.
[165]T 406 L 26 – 27.
[166]T 391 L 6 – 12.

Around 2010, Cilla noticed that Charmian had some difficulties with her memory and that the kitchen table was ‘a bit messy’,[167] but Cilla was not concerned for her safety.[168] Charmian told Cilla of her annoyance and frustration with Rosemary[169] and Cilla’s observation was that Charmian was ‘worried’.[170] Cilla thought that Charmian was annoyed with Rosemary because Rosemary kept taking Charmian to see doctors.[171] Charmian asked her for the name of a solicitor and Cilla gave her the details of Mr Muir.[172] Cilla did not wish to discuss with Charmian what was causing her to be worried. She felt it was appropriate for Charmian to discuss with Mr Muir any matters which were causing her to be concerned.[173] Cilla could not recall Charmian telling her that she wanted to make a will.[174] However, it is clear from a file note of a telephone conversation between Cilla and Mr Muir on 29 September 2010 that Charmian had told Cilla that she wanted to make a will.
[167]T 387 L 15 – T 388 L 6.
[168]T 393 L 16 – 20.
[169]T 391 L 29 – T 392 L 2.
[170]T 391 L 26.
[171]T 392 L 12 – 22; T 411 L 16 – 17.
[172]T 369 L 29 – T 370 L 3.
[173]T 374 L 15 – 21.
[174]T 394 L 25 – 26.

Cilla had a sense of Charmian’s cognitive decline in late 2010 or 2011 because Charmian made critical comments of Rosemary’s children and Simon and Sasha which did not ‘seem right’.[175]
[175]T 410 L 18 – T 411 L 10.

By the second half of 2011, Cilla had moved to Abbotsford and Cilla saw Charmian less frequently.[176] Cilla became aware that Charmian had entered a nursing home shortly after Charmian had entered.[177] She visited Charmian late in 2011 and again in 2019.[178] Cilla’s evidence was that when she visited Charmian in 2019, she brought a digital radio and talcum powder[179] for Charmian and that Charmian did not recall who she was.[180]
[176]T 406 L 30 – 31.
[177]T 373 L 11 – 14.
[178]T 373 L 17 – T 374 L 1; T 408 L 1 – 7.
[179]T 409 L 31 – T 410 L 3.
[180]T 408 L 11 – 12.

Cilla gave evidence that she never:

(viii) had keys to Charmian’s house;[181]
[181]T 385 L 12.

(ix) took Charmian to any medical appointments;[182]
[182]T 385 L 14.

(x) arranged payment of Charmian’s bills;[183]
[183]T 385 L 15.

(xi) had access to Charmian’s bank accounts;[184] or

(xii) discussed with Charmian her testamentary intention or will.[185]

[184]T 385 L 16.

[185]T 385 L 17 – 18.

Cilla also gave evidence that Charmian never told her that she had locked herself out of the house, that she thought her handbags had been stolen and had reported the theft to the police, or changed the locks.[186] At first she could not recall if Charmian had told her that Charmian had been diagnosed with dementia,[187] but then clarified that Charmian had not.[188] Cilla was aware that Charmian was having problems with and seeing doctors about her memory,[189] but did not personally observe anything that led her to that conclusion.[190]
[186]T 389 L 5 – 18.
[187]T 389 L 19 – 20.
[188]T 398 L 28 – 30.
[189]T 389 L 21 – 26; T 398 L 19 – T 399 L 3; T 399 L 13 - 15.
[190]T 399 L 16 – 18.

Sue Hall

Ms Hall was Charmian’s carer at Bupa Caulfield[191] for nine years.[192] She was paid and employed by Rosemary.[193] While Charmian was under her care, she had about 10 hours a week of contact and saw her in the morning and night Monday through Friday.[194] In about 2015, Charmian entered the dementia ward.[195]
[191]T 427 L 19 – 30.
[192]T 430 L 4 – 5.
[193]T 436 L 7 – 14.
[194]T 427 L 25 – T 428 L 1.
[195]T 433 L 23 – 26.

She described Charmian as a ‘good friend’ and said that Charmian was ‘naughty’ when she arrived in the nursing home.[196] Ms Hall said that she would take Charmian on excursions to Puffing Billy, to visit Rosemary, to visit Randal and to shops and galleries.[197] Her evidence was that she took Charmian to visit Rosemary at Rosemary’s Toorak and Mount Martha residences.[198]
[196]T 428 L 2 – 7.
[197]T 428 L 16 – 23.
[198]T 428 L 24 – T 429 L 8.

Ms Hall said that Charmian would talk about her life and her mother, Randal and Rosemary, but could not recall[199] Charmian talking about the rest of the family.[200] She said that Rosemary and Charles would visit Charmian twice a month[201] but otherwise no one visited Charmian.[202] Her evidence was that Charmian never mentioned Denise Brookes,[203] but she recalled Cilla visiting Charmian twice in September 2019.[204] She said that Cilla’s visit upset Charmian.[205]
[199]T 437 L 14 – 22.
[200]T 430 L 13 – T 431 L 10.
[201]T 431 L 16 – 20.
[202]T 431 L 11 – 13.
[203]T 431 L 21 – 27.
[204]T 431 L 28 – T 432 L 2.
[205]T 432 L 2 – 4.

Warren Woolcock

Mr Woolcock is a solicitor.[206] He was admitted in 1974 and primarily practises in wills, estates and property.[207] He is a sole practitioner.[208] Mr Woolcock was Randal Watt’s solicitor.[209] Rosemary was appointed Randal’s attorney. Consequently Mr Woolcock had significant dealings with Rosemary[210] for a period of three or four years.[211]
[206]T 76 L 14.
[207]T 76 L 15 – 19.
[208]T 76 L 27.
[209]T 80 L 8 – 9.
[210]T 79 L 29 – T 80 L 2.
[211]T 80 13 – 19.

Mr Woolcock was the solicitor that Rosemary contacted to prepare Charmian’s power of attorney.[212] Mr Woolcock took instructions from Charmian on 12 July 2010.[213] He saw Charmian alone.[214] That included completing a questionnaire which contained the note that Charmian had said that Rosemary was the ‘most wasteful person on earth’.[215]
[212]T 77 L 13 – T 78 L 6; CB 546, Email from Rosemary to Warren Woolcock dated 8 July 2010.
[213]T 82 L 18 – 20; CB 549 – 551, Document titled ‘Testamentary Capacity’ completed by Warren Woolcock dated 12 July 2010.
[214]T 88 L 26 – T 89 L 3.
[215]T 84 L 1 – 6; CB 550, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.

Michael Muir

Mr Muir is a retired solicitor.[216] He was admitted to practice in 1977[217] and retired at the end of 2022.[218] Prior to his retirement, he was a partner at the law firm Darrer Muir Fleiter Lawyers.[219] He was a specialist in business and commercial law and most of his clients were local business owners.[220] He was often asked by clients to prepare documents like wills or powers of attorney.[221]
[216]T 97 L 8 – 9.
[217]T 97 L 13 – 14.
[218]T 97 L 10 – 11.
[219]T 97 L 20 – 23.
[220]T 97 L 27 – T 98 L 3.
[221]T 98 L 4 – 5.

Cilla called Mr Muir on 29 September 2010 to say that Charmian needed to prepare a will.[222] Cilla had previously been employed by Darrer Muir Fleiter Lawyers.[223] Cilla had not worked directly with Mr Muir but he knew her from her time employed with his firm.[224] They had no contact after Cilla left the firm.[225]
[222]CB 576, File note of Mr Muir dated 29 September 2010.
[223]T 101 L 1 – 3.
[224]T 101 L 3 – 6.
[225]T 100 L 7 – 8.

Mr Muir visited Charmian on 1 October 2010 to receive instructions for the will[226] and was present on 18 October 2010 when Charmian executed the will.[227]
[226]CB 579 – 580, File note of Mr Muir dated 1 October 2010.
[227]CB 595, File note of Mr Muir dated 18 October 2010.

Lachlan Beer

Mr Beer was a solicitor practising at Darrer Muir Fleiter Lawyers in 2010.[228] He mostly practised in property law.[229] With Mr Muir and Ms Karen Keizer, he attended Charmian’s Armadale residence when she executed the will. Mr Beer witnessed the execution.[230] He had no specific memory of the event.[231]
[228]T 418 L 20 – 26.
[229]T 418 L 27 – 30.
[230]T 421 L 19 – 25; CB 43 – 45, Will of Charmian Watt dated 18 October 2010.
[231]T 421 L 13 – 18.

Karen Keizer

Ms Keizer was a secretary at Darrer Muir Fleiter Lawyers.[232] She is now retired.[233] She worked for Mr Muir.[234] She recalled driving to Charmian’s house[235] and witnessed the execution of the will.[236]
[232]T 423 L 4 – 8.
[233]T 423 L 3.
[234]T 423 L 15 – 18.
[235]T 424 L 15 – 19.
[236]T 424 L 23 – T 425 L 3; CB 43 – 45, Will of Charmian Watt dated 18 October 2010.

Associate Professor David Fonda

Dr Fonda is a consultant physician and a specialist geriatrician.[237] He is also a consultant rehabilitation specialist.[238] He was a global authority on incontinence in older people[239] but his current clinical work is predominately focused on cognitive function.[240]
[237]T 235 L 25 – 27.
[238]T 235 L 26 – 27.
[239]T 295 L 9 – 11.
[240]T 295 L 16 – 20.

He had no independent recollection of meeting Charmian.[241] He assessed Charmian on 24 November 2010 and 13 December 2010 and completed a comprehensive geriatric assessment.[242] He produced a report about Charmian’s cognitive health. [243] On 4 April 2011, Dr Fonda assessed Charmian again and produced an updated report.[244] On 26 April 2011, Dr Fonda assessed Charmian’s testamentary capacity and determined that she did not have testamentary capacity.[245]
[241]T 240 L 23 – 27.
[242]T 241 L 26 - T 242 L 4 – 5; CB 647 – 649, Dr Fonda’s Letter to Dr Wright dated 13 December 2010.
[243]CB 647 – 649, Dr Fonda’s Letter to Dr Wright dated 13 December 2010.
[244]T 265 L 27 – T 266 L 3; CB 629, Letter from Dr Fonda to Dr John Hatfield dated 4 April 2011.
[245]T 272 L 4 – 17; CB 658 – 660, Letter from Dr Fonda to Rosemary dated 26 April 2011.

In September 2024, he produced an expert report retroactively assessing Charmian’s testamentary capacity in October 2010.[246]
[246]T 236 L 7 – 10; CB 80 - 86, Expert report of Dr Fonda dated 15 September 2024.

Dr Lesley Wright

Dr Wright is a retired general practitioner.[247] She practised as a general practitioner from 1981 until 2015.[248] She was employed at Wynlorel General Practice (‘Wynlorel’) and, prior to that, at Stonnington Medical Centre.[249]
[247]T 462 L 13 – 14.
[248]T 462 L 16 – 20.
[249]T 463 L 17 – 20.

Dr Wright was Charmian’s general practitioner over many years.[250] Dr Wright said that it was her belief that Charmian attended Wynlorel because Dr Wright had begun to work there after Stonnington Medical Centre moved location.[251] On 12 July 2010, Dr Wright witnessed the signing of the power of attorney drafted by Mr Woolcock.[252]
[250]T 463 L 1 – 5. Dr Wright believed she first saw Charmian in 1999: T 463 L 28 – 30.
[251]T 463 L 25 – 27.
[252]CB 553, Charmian’s Enduring Power of Attorney dated 12 July 2010.

Dr Chris Moran

Dr Moran is a geriatrician.[253] He began practising as a doctor in 2004 and as a geriatrician since 2012.[254] In 2010, he worked for the Cognitive, Dementia & Memory Service (‘CDAMS’)[255] at Caufield under the supervision of Dr Simon Scharf.[256] He had no independent recollection of assessing Charmian.[257]
[253]T 505 L 16 – 17.
[254]T 505 L 27 – 30.
[255]T 506 L 15 – 17.
[256]T 506 L 31.
[257]T 507 L 9 – 12.

The events leading up to the execution of the will
Charmian appoints Rosemary as her guardian and attorney

On 8 July 2010, Rosemary sent an email to Mr Woolcock with the subject ‘Charmian Watt Power of Attorney’:

Dear Warren,
Re: Power of Attorney for Charmian Watt
As discussed with you today, this is the information you require for the Enduring Power of Attorney, and Enduring Power of Guardianship for my Aunt.
She is a spinster & 86 years old, and I am her only niece & next of kin, as my Father sadly has dementia and is no longer able to fulfil the role. She has given her consent to appoint me as her Enduring Power of Attorney and Enduring Power of Guardianship.
Her full name is:
Charmian Louise Watt
DOB: 16/05/1925
Address: 5 Huntingtower Rd Armadale Vic 3143
Phone: 9822 7168

Her General Practitioner is:
Dr Leslie [sic] Wright,
1368 High Court,
Malvern, 3144 Tel: 9509 4488

I think Dr Wright will be prepared to witness the documents, and have made an appointment to do so with my Aunt.
My details are:
Rosemary Jean Laycock
1 Palermo Street
South Yarra 3141
Tel: 982703703
Mobile: 0407566472

Thank you for your assistance with this matter.[258]

[258]CB 546, Email from Rosemary to Warren Woolcock dated 8 July 2010.

Rosemary’s father Randal had been a client of Mr Woolcock’s firm.[259] Rosemary had a power of attorney for her father, and it was through dealing with Rosemary as attorney for her father that Mr Woolcock had a connection with her.[260] Mr Woolcock estimated that he had known Rosemary for three or four years prior to 2010.[261]
[259]T 80 L 8 – 9.
[260]T 79 L 29 – T 80 L 7.
[261]T 80 L 17 – 19.

Mr Woolcock stated that this email was preceded by a phone call from Rosemary.[262] Mr Woolcock had no note of that phone call, but the discussion is referred to in the email.[263] Mr Woolcock stated:

Mr Woolcock: I can’t recall what the conversation was about other than that it's a correct reference to a previous phone call. She gave me some history, because I asked for some background before I could manage a power of attorney and essentially she was fulfilling that information for me. I'd never met Charmian and, therefore, I took a view that I needed somebody who knew her for some period which was Dr Lesley Wright which she practised at the same practice as my own general practitioner.[264]

[262]T 78 L 5 – 6.

[263]T 78 L 7 – 10.

[264]T 77 L 26 – T 78 L 4.

Mr Woolcock presumed that it had been his suggestion to Rosemary that Dr Wright witness the signing of the power of attorney:

Mr Woolcock: I can only presume so, because that was the resulting email from Rosemary that in my previous conversation, I must have spoken to her about the fact that I didn’t know Charmian and it was impossible for me to give any sort of history. I'd have to meet her several times and it would take time and I had no idea what medication she was on. I had no idea whether she's good in the morning, good in the afternoon, or any variation because those things do affect somebody's clarity of mind.[265]

[265]T 90 L 5 – 14. See also T 96 L 13 – 18.

Mr Woolcock gave the following evidence regarding what had happened after he received the email:

Mr Woolcock: Essentially, I opened a file or had my wife open a file and from that, anticipated that she’d be seeing me at some stage and that Dr Lesley Wright would be the one giving evidence, which I couldn’t fulfil, because I didn't know Charmian at all. So as a practical exercise on capacity issues, I wasn't in the a position to know the full background, and part of the previous conversation, I'm presuming, was, 'We need somebody who knows - you, Charmian, personally - a medico', and that's why that email followed. Then when the file was opened, an appointment was made. I don't have a recollection of that other than it was made on the day that the power of attorney was signed. In anticipation of that, and noting the difficulties of potentially dealing with somebody I'd never met before, and clearly somebody of age, I took the view that I would prepare copies of documents that I could hand to her and to Rosemary, and that I could go through the power of attorney with Charmian, so she knew what document we were dealing with, and at the same time, I was keeping a firm eye on what I'd call red flags for somebody who didn't have capacity to understand instructions. I wasn't testing capacity for whether she knew what she was doing. Rather, that she knew she was giving instructions, and that those papers that I had a copy of, and I discussed - I presume I discussed, because I had one copy for her, one copy for me, and that I went through the - I think it's called 'take control' or something, which set out what powers of attorney were and these particular powers of attorney at the time, and I can't recall going through them, but specifically that would have been the arrangement that I had to explain to her what she was doing and then the question of whether she inwardly understood that was up to the doctor.[266]

[266]T 78 L 12 – T 79 L 13.

Rosemary gave evidence that she had no recollection of sending the email.[267] Rosemary however stated that Charmian had asked her to arrange for a power of attorney and she made the appointment with Mr Woolcock.[268] Rosemary stated that it was Charmian who had suggested a power of attorney be executed and herself appointed as attorney.[269]
[267]T 538 L 21 – 22.
[268]T 539 L 2 – 5.
[269]T 548 L 23 – 25.

Meeting with Mr Woolcock

On 12 July 2010, Mr Woolcock had a meeting with Charmian at his house. Mr Woolcock stated that he had an independent recollection of meeting with Charmian.[270] Mr Woolcock recalled:

Mr Woolcock: [S]he came to my - my house and my recollection is that she came up to my office and I took instructions from her in the office, alone, and that the notes were all that I took and the take control, as far as I recall, would have been used. I don't know for sure, but [it] would have been part of the discussion of explaining the details of a power of attorney.[271]

[270]T 80 L 26 – 28.

[271]T 80 L 29 – T 81 L 5.

Mr Woolcock stated that there had been no one else in the meeting apart from himself and Charmian.[272] Mr Woolcock stated that Rosemary would have brought Charmian to his house, he had a short discussion with Rosemary and Charmian in the front foyer, and Charmian came up to his office alone.[273] Mr Woolcock stated he was confident he would have only spoken to Charmian alone during the meeting as this was always his practice.[274]
[272]T 81 L 6 – 8.
[273]T 81 L 9 – 12; T 88 L 26 – 31.
[274]T 89 L 2 – 3.

During the meeting with Charmian, Mr Woolcock filled out a document titled ‘Testamentary Capacity’.[275] Aside from this document and the answers to the questions outlined below, Mr Woolcock did not take any other notes during the meeting with Charmian.[276] Mr Woolcock explained the purpose of this document:

Mr Woolcock: [I]t’s used for general instructions to start a power of attorney and in this case, it was part of the initiation of making sure she understood what a power of attorney was. Her brother had apparently been previously power of attorney. I don't recall that, but - and I don't know who prepared that particular power of attorney, but I just don't recall it, and that Charmian was looking to have Rosemary as her power of attorney. This was literally a checklist that I would use in conjunction with the notes of take control.[277]

[275]CB 549 – 551, Document titled ‘Testamentary Capacity’ completed by Warren Woolcock dated 12 July 2010.

[276]T 84 L 14 – 16.

[277]T 81 L 23 – T 82 L 2.

Mr Woolcock explained why the document was titled ‘Testamentary Capacity’:

Mr Woolcock: Because they're usually related to a will and, as I say, usually I'd be doing a will and a power of attorney together. This wasn't the case. So it was a test or, sorry, a mind-jogging exercise to make sure that the client, if she was doing a will, or if I was witnessing a power of attorney, that these would be the things that I would discuss with the client.[278]

[278]T 82 L 11 – 17.

Question 1 of the document stated ‘Does the person know the document is a Will or Power of Attorney?’.[279] Mr Woolcock had written ‘Later’ in the first column and a tick in the second column. He explained:

Mr Woolcock: The will is the first reference, so that has got a note, ‘Later’, so that we weren't doing a will then. The second was a tick to show that I was satisfied that she knows that the document is a power of attorney and that, as I say, was with conjunction with the take control notes.[280]

[279]CB 549, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.

[280]T 82 L 24 – 30.

Mr Woolcock had no recollection as to why he had written ‘Later’ in respect of a will.[281] Mr Woolcock presumed that that was the comment Charmian had made and he wrote it down.[282]
[281]T 83 L 10 – 11.
[282]T 90 L 29 – T 91 L 1.

The second question stated ‘Does the person know their assets?’.[283] Mr Woolcock had written ‘Home’, ‘Golf’, ‘Chess’ and ‘Shares’. He explained:

Mr Woolcock: Golf, I’m not sure whether or not it related to her playing golf, having golf - debentures in a golf club, shares and presumably chess is the method of dealing with shares, but that's all I’ve written and that’s all I can recall.[284]

[283]CB 549, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.

[284]T 83 L 15 – 19.

In answer to the question ‘Describe your health and personal circumstances’, Mr Woolcock had written ‘No prob’, ‘No medication’, ‘Doctor’, ‘Dog’, ‘Mr Pip’ and ‘walks twice a day’.[285] Mr Woolcock explained:

Mr Woolcock: I wrote 'No [problems]' or 'probs'. She's not on medication, 'No medication'. The doctor would be dealing with that. She has a dog called Mr Pip apparently; and walks the dog twice a day, so she was able to get around.[286]

[285]CB 549, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.

[286]T 83 L 24 – 28.

In answer to the question ‘What type of decisions are likely to be required in relation to your assets and your future welfare and needs?’, Mr Woolcock had written ‘Normal a/cs’.[287] He explained ‘I've just written, “Note: normal accounts”. Just paying normal accounts.’[288]
[287]CB 549, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.
[288]T 83 L 30 – 31.

Finally, in answer to the question ‘Why have you chosen X’, Mr Woolcock had written ‘closest’ and ‘the most wasteful person on earth’.[289] He explained ‘”[c]losest” and I presume I meant the closest relative, closest person, and then the reference, “[t]he most wasteful person on earth”’.[290] Mr Woolcock had no recollection of why he made the latter note, and could only presume he wrote it because Charmian had said it.[291]
[289]CB 550, Document titled “Testamentary Capacity” completed by Warren Woolcock dated 12 July 2010.
[290]T 84 L 4 – 6.
[291]T 84 L 7 – 9.

When asked whether it had struck him as odd that Charmian was appointing as her attorney the ‘most wasteful person on earth’, Mr Woolcock stated:

Mr Woolcock: I don’t have that power. She’s instructing me. I don't have – that’s not my role.

His Honour: That’s not your role, no?
Mr Woolcock: I presumably asked her about it, but I’ve got - I didn’t make a note, other than the fact that that was a direct quote.[292]

[292]T 88 L 18 – 23.

Mr Woolcock further stated that he had no concerns with Rosemary being appointed attorney:

Mr Woolcock: Rosemary had been managing - as far as I was aware – Randall [sic], her father's affairs for some years. I just can't remember how long, but we were dealing with restaurants, we were dealing with a whole lot of different matters, and as far as I was concerned, Rosemary and Charles, her husband, managed those quite well and I saw no problem.[293]

[293]T 92 L 26 – T 93 L 1.

Mr Woolcock stated that during the meeting, he would have used a document titled ‘Take Control’[294] to explain a power of attorney to Charmian and would have gone through that document with her.[295] Mr Woolcock could not recall doing so, however, and only presumed he did.[296]
[294]Exhibit A, Bundle of documents regarding preparation of power of attorney for Charmian Watt made by Warren Woolcock, 12 February 2025.
[295]T 84 L 18 – 26.
[296]T 84 L 25 – 26.

Other documents contained in Mr Woolcock’s file included further copies of the ‘Take Control’ document which were provided to Dr Wright and Rosemary,[297] documents titled ‘Information for witnesses’ and ‘Information for attorneys’ which were provided to Dr Wright and Rosemary,[298] the original executed enduring financial power of attorney and guardianship,[299] and a document titled ‘When a client’s capacity is in doubt’ by the Law Society of New South Wales.[300]
[297]T 84 L 28 – T 85 L 13.
[298]T 85 L 14 – 23.
[299]T 85 L 26 – 28.
[300]T 86 L 7 – 15.

Rosemary gave the following evidence about the meeting:

Rosemary:[W]hen we were there we sat in his office and discussed the power of attorney and the power of guardianship. And she agreed to both. And he said he would prepare those. And then she said to my aunt, 'Have you thought about making a will?

His Honour: Yes?
Rosemary:He said to me - or asked me, 'Would you please leave the room?

His Honour: Yes?
Rosemary:So I did. And she - he had a talk to her about making a will.[301]

[301]T 539 L 6 – 18.

Mr Woolcock gave evidence that over his years in practice, he would make around 30 wills and powers of attorney each year.[302] His understanding at the time in relation to the test of capacity for making a power of attorney was that ‘a person needed to know what they were dealing with’.[303] In contrast, Mr Woolcock explained his understanding of the test for testamentary capacity when making a will as follows:

Mr Woolcock: Usually it - it's different insofar as the items that have previously been mentioned, which you go through a checklist and that would have been significantly different and, again, I would have taken a great deal more time. I only had a very short period with her on this power of attorney. So, from my point of view, it would have been a great - it would have been an hour's worth of conversation.[304]

[302]T 76 L 29 – 31; T 77 L 8 – 12.

[303]T 91 L 9 – 10.

[304]T 92 L 3 – 11.

Mr Woolcock stated that he had been satisfied that Charmian had understood the concept of a power of attorney and what it does after going through the ‘Take Control’ document with her:

Mr Woolcock: I think State Trustees put out a document called 'Take Control' in those days and that was the document that I would have gone through, as far as I'm aware, because that was a simple way of explaining and going through heading by heading what the power of attorney does, and if she understood that concept, I was happy with that.

Mr Antill: Yes?
Mr Woolcock: And clearly I was, because I let her take the will away - the power of attorney away, with the one exception that I wrote Dr Wright's name and address in as the doctor in case something changed and somebody else ended up by witnessing, I wanted her doctor that she'd had for whatever years to be the witness, not a local who dropped in.[305]

[305]T 91 L 16 – 29.

Mr Woolcock stated that nothing during the meeting with Charmian had raised any red flags as to her ability to make a power of attorney. He stated:

Mr Woolcock: No, not at all. On the contrary. When she made the reference to Rosemary being the most - well, the comment that she made, it struck me as pretty in tune with what she perceived Rosemary to be. Now, she would have had dealings with Randall [sic] and Rosemary's dealings with him, so I don't know any of that history. It's just a comment that struck me as a fairly lucid comment.[306]

[306]T 87 L 31 – T 88 L 6.

Mr Woolcock listed out some of the red flags he would have looked out for: losing concentration, going off topic and hearing issues.[307] He stated that he had not noticed any of those red flags.[308] Mr Woolcock accepted that dementia is a red flag, but stated:

Mr Woolcock: [D]ementia to me is a fluctuating. Sometimes they've got it and sometimes they haven't, and it's an up and down situation. It can reflect on early morning, dehydrated, not fed, all of those things can affect the element of what they understand, and I was satisfied that she understood what she was doing.[309]

[307]T 93 L 27 – 30.

[308]T 93 L 31 – T 94 L 2.

[309]T 94 L 6 – 12.

In cross-examination, Mr Woolcock stated that had Charmian herself told him that she had possible dementia, that ‘would be a red flag that I would expect Dr Wright to deal with.’[310] In this respect, Dr Wright acted as a ‘safety check’.[311]
[310]T 94 L 16 – 17.
[311]T 95 L 8 – 9.

Following the meeting with Mr Woolcock on 12 July 2010 at his house, Rosemary and Charmian attended Wynlorel and saw Dr Wright.[312] Charmian executed an enduring financial power of attorney and a guardianship. Charmian appointed Rosemary to be her attorney and guardian. Both documents were witnessed by Dr Wright and Maria Giuseppina Boccabella, a medical receptionist at Wynlorel, on the same day. Both appointments were accepted by Rosemary and statements of acceptance were signed by Rosemary on the same day.[313]
[312]T 539 L 20 – 22.
[313]CB 552 – 555, Charmian’s Enduring Power of Attorney dated 12 July 2010; Exhibit A, Bundle of documents regarding preparation of power of attorney for Charmian Watt made by Warren Woolcock, 12 February 2025. See also T 479 L 26 – 28; T 540 L 3 – 4.

Dr Wright gave evidence that she had no recollection of the meeting with Charmian on 12 July 2010 aside from her notes.[314] Dr Wright’s progress note of 12 July 2010 recorded:

[D]iscussion re powers of attorney - in view of losing keys and handbags and becoming quite distressed - felt burglars were coming into her house
[W]ants Rosemary to be her financial and medical power of attorney - understands the implications fully of both - that Rosemary could if need be sell her house and put her in a home etc and make medical decisions where she was not able
[N]ot taking her medication as has not had scripts filled - will do so today.[315]

[314]T 478 L 24 – 26.

[315]CB 484.

Dr Wright stated that these notes were of her witnessing the power of attorney on 12 July 2010 and record what she told Charmian at the time.[316] Dr Wright had previously witnessed powers of attorney, but only a couple times a year.[317] Dr Wright explained her understanding of her role when witnessing someone signing a power of attorney:

Dr Wright:I think I had two roles; one role was to make sure that she understood what she was signing and what the implications of that were. And the other one was to witness her signature.[318]

[316]T 480 L 10 – 17.

[317]T 479 L 1 – 6.

[318]T 479 L 31 – T 480 L 3.

Dr Wright had made sure Charmian had understood what she was signing by ‘asking her what she understood about it and challenging her with questions about “[w]ell, it may mean this and it may mean that”.’[319] It was likely Rosemary had been present during this discussion.[320] Dr Wright had not felt any ‘undue pressure’ and rather recalled there being a ‘warm understanding between Rosemary and Ms Watt’.[321] Dr Wright was satisfied that Charmian had sufficient capacity to understand the documents.[322]
[319]T 480 L 4 – 8.
[320]T 499 L 21 – 24.
[321]T 481 L 30 – T 482 L 1.
[322]T 499 L 25 – 28.

Charmian engages Michael Muir to prepare her will

On 29 September 2010, Mr Muir received a telephone call from Cilla. Mr Muir’s file note of his discussion with Cilla is as follows:

1. Cilla Brookes rang and told me that she would like to introduce to me her Mother’s second cousin who name is Charmian Watt who needs to prepare a Will. She is about 84 or 85 years of age, has never been married and lives in Armadale.
There is some suggestion that she has early signs of dementia.
It was agreed that Cilla would get Charmian to call me and I would catch up and take her instructions.
2. Charmian rang and it was agreed that I would meet her at her house at 5 Huntingtower Road, Armadale on Friday at 10.30am. Charmian’s phone number is 9822 7168.[323]

The reference in the file note to ‘Friday at 10.30am’ is a reference to Friday 1 October 2010.

[323]CB 29, File note of Mr Muir dated 29 September 2010.

Mr Muir gave evidence that prior to the telephone discussion on 29 September 2010, he had not had any contact with Cilla since she had ceased working at his firm in around 2001.[324] The file note of 29 September 2010 recorded two separate telephone calls: one with Cilla and then a subsequent call with Charmian.[325] Mr Muir made the note about dementia because he understood that it is necessary for a will to be made and signed by a testator who understands what the document is all about and that the document is consistent with his or her wishes.[326]
[324]T 100 L 31 – T 101 L 8.
[325]T 99 L 27 – 29.
[326]T 99 L 30 – T 100 L 3.

Mr Muir was questioned as to whether he was concerned by the fact that he had never met Charmian and had no knowledge of her, but was being asked to prepare a will for her. He responded as follows:

Mr Muir:It was a concern that was addressed by the discussion I had when I actually met up with her, and that’s referred to in the other memo of the attendance at her home … it was during that discussion that I formed the impression that she had adequate testamentary capacity to proceed with the will.[327]
[327]T 124 L 5 – 11.

Charmian provides Mr Muir with instructions to prepare her will

On 1 October 2010 at 10:30am, Mr Muir went to Charmian’s home to take her instructions for her will.[328] Mr Muir had no recollection of the meeting on 1 October 2010 other than recalling driving to Charmian’s house.[329] Mr Muir’s file note dated 1 October 2010 (‘1 October Note’) is set out below:
[328]CB 578, Entry of Mr Muir’s diary dated 1 October 2010.
[329]T 99 L 7 – 11; T 136 L 31 – T 137 L 4.

I attended Charmian Watt’s home at 5 Huntingtower Road, Armadale.
During the start of our discussion Charmian and I had a general discussion about her background and how she had come to live in Huntingtower Road. Various other issues then flowed from that discussion and it was during this time that I formed the view that Charmian had more than adequate testamentary capacity. Charmian seemed to fully understand the concept of Wills, the role of an executor and the need for the selection or nomination of beneficiaries of her estate. Charmian also gave me a brief description of her assets which she said were confined to the property in Huntingtower Road, a portfolio of shares which had dropped in value in recent years and money in some bank accounts.
My view about Charmian’s testamentary capacity was enhanced during the balance of my meeting during which I discussed in greater detail the structuring of her Will.
Charmian gave me instructions to prepare a draft Will and in this regard she instructed as follows:-
Her full name is Charmian Louise Watt.
Her preferred occupation or description is retired.
She would like her late cousin’s daughter Denise Brookes and Denise’s daughter Cilla Brookes to be joint executors of her estate. I asked Charmian if Denise and Cilla had middle names and she said that she didn’t know and suggested that I contact Cilla.
She would like the principal beneficiary of her estate to be Denise and after some discussion she said that she would like 45% of the estate to pass to Denise.
She would like 15% of her estate to pass to Cilla.
She would like 15% of her estate to pass to Denise’s other daughter Sasha. She said that she was uncertain as to whether Sasha had a middle name.
She would like 15% of her estate to pass to Denise’s son Simon. Once again she said that she didn’t know if Simon had a middle name.
She would like the remaining 10% of her estate to pass to Rosemary Laycock and her three sons. She said that she couldn’t remember their names and asked if I could get the details from Cilla.
I said that I would get a draft Will prepared and sent to her for her approval.[330]

[330]CB 579 – 580, File note of Mr Muir dated 1 October 2010.

Mr Muir gave evidence that it had been his usual practice to take instructions for a will in a face-to-face meeting with a client, held either at his office or at the home of the client. He was ‘very uneasy’ about preparing a will based on instructions given via telephone.[331] Mr Muir preferred to meet clients face-to-face as he believed people communicated better face-to-face.[332]
[331]T 98 L 11 – 20.
[332]T 123 L 24 – 30.

On average, Mr Muir had made 20 - 40 wills each year during his time at Darrer Muir Fleiter Lawyers.[333] Mr Muir gave the following evidence as to his usual practice when taking instructions for a will:

Mr Muir:I would always commence by obviously asking the client or clients what they were meeting with me about and if they were to say, 'We would like to prepare', or, 'I would like you to prepare a will for me', I would then give an explanation: 'Okay, we need to talk about what a will does, what's it all about', and I would explain that side of things with the client. Then I would talk about the need to appoint an executor or executors and I would explain to the clients or client what the role of the executor or executors is. Then I would talk about the assets of the client. So I'd have a bit of an understanding of what the estate that would ultimately fall in to this will, what those assets are, and the client would say, well, there's a house, or there's shares, or there's - whatever there might be. So I would discuss that with the client and then that would set the background when I could then say, 'Okay, who is the executor going to be, or executors, who are they going to be? And who are the beneficiaries that you have in mind?', and the common answer for family clients was, 'Well, if mum dies' or the dad dies or the non-dad survives, it will be the survivor will be the beneficiary and the sole executor, and if both mum and dad pass away, then it will be, perhaps, depending on the age of the children, the children, or a close relative. They would be the executor and the beneficiaries would be the children, and we'd talk about - what about the age of these children, if they're not adults at the time of the death of both of you, how would you set up the wills in those circumstances and we would talk about the assets of the trust being held by the executors on trust for the children until they got to the age of 20, 25, 30, whatever that suited. So there'd be a general discussion with the clients about that possibility.[334]

[333]T 98 L 6 – 10.

[334]T 101 L 27 – T 102 L 31.

When dealing with elderly clients in particular, Mr Muir accepted that this would be a ‘red flag’[335] and stated that he would ‘always be more cautious’:

Mr Muir:I would always be more cautious about taking instructions from an elderly person. I would want to be fully satisfied that the elderly person, the elderly client, understood what I was talking about when I say, 'Who's going to be the executor? Who's going - who are the beneficiaries going to be? What are your assets?', and so forth. I would want to be fully satisfied that the person providing me with the instructions fully understood what I was talking about.[336]

[335]T 122 L 14 – 20.

[336]T 104 L 6 – 14.

Mr Muir gave evidence about how he would satisfy himself that a client had testamentary capacity:

Mr Muir:During the discussion I was just talking about, it would soon become fairly evident whether or not the clients knew what I was talking or what I was questioning them about. And if I detected some hesitation or an inability to answer a question, I would hone in on that question, and see if I could flush out an answer or deal with it in some other way, but that's how it would happen, if that makes sense.[337]

[337]T 103 L 4 – 11.

Mr Muir explained his understanding of the test for testamentary capacity as at October 2010:

Mr Muir:The test is to quiz the client about the person's personal things like name, address, family, assets, the role of executor, the role of beneficiaries, the division of the estate. All of that discussion, as referred to in the relevant memo, all of that discussion cemented in my mind that this client did have sufficient capacity to make a will, because she understood the key ingredients of the document.
Mr Antill:So your understanding about whether someone has sufficient testamentary capacity is whether they understood the key ingredients of the document?
Mr Muir:Well - yep.[338]

[338]T 124 L 27 – T 125 L 9.

Mr Muir explained the ‘key ingredients’ as being:

Mr Muir:Executor or executors, beneficiaries, they're the two as - what I see is the essential and basic information that needs to be included in a will.[339]

[339]T 156 L 18 – 22.

Mr Muir did not believe he was aware as at October 2010 of anything else about the test for testamentary capacity other than whether the person ‘understood the key ingredients of the document’.[340]
[340]T 156 L 11 – 15.

A number of propositions were then put to Mr Muir, based on the absence of certain information in the 1 October Note, to the effect that he had not noticed or asked Charmian about certain matters during the meeting on 1 October 2010.

First, it was put to Mr Muir that there is no record in the file note about whether Charmian was wearing a hearing aid or had any difficulty with her hearing. Mr Muir accepted this.[341] Mr Muir also accepted that had he noticed Charmian was wearing a hearing aid or had difficulty with her hearing, that would have been important information he would have included in the file note.[342]
[341]T 137 L 5 – 9.
[342]T 137 L 10 – 15.

Second, it was put to Mr Muir that there is no record in the file note of him asking Charmian whether she had previously made a will, and that such information would have been relevant in assessing her testamentary capacity. Mr Muir accepted these propositions.[343] Mr Muir accepted that had he asked Charmian if she had previously made a will, her response would have been important information that he would have included in the file note.[344] Mr Muir also accepted that the Court could infer that he did not ask Charmian in the meeting on 1 October 2010 about whether she had made a previous will.[345]
[343]T 137 L 16 – 24.
[344]T 137 L 28 – 31.
[345]T 138 L 1 – 4.

Third, it was put to Mr Muir that there is no record in the file note of him asking Charmian whether she had a power of attorney organised or wished to have a power of attorney drafted, and that such information would have been relevant in assessing her testamentary capacity and in relation to who Charmian may wish to appoint as her executor. Mr Muir accepted these propositions.[346] Mr Muir accepted that had he asked Charmian whether she had a power of attorney, her response would have been important information that he would have included in the file note.[347] Mr Muir also accepted the Court could therefore infer that he did not ask Charmian in the meeting on 1 October 2010 about whether she had a power of attorney.[348]
[346]T 138 L 18 – 30.
[347]T 138 L 31 – T 139 L 4.
[348]T 139 L 5 – 8.

Fourth, it was put to Mr Muir that there is no record in the file note of him asking Charmian about whether she had signs of dementia or a diagnosis of dementia and when and why such diagnosis was given, and that such information would have been relevant in assessing her testamentary capacity. Mr Muir accepted these propositions.[349] Mr Muir accepted that had he asked Charmian these questions, her responses would have been important information that he would have included in the file note.[350]
[349]T 140 L 2 – 26.
[350]T 140 L 27 – 29.

Fifth, it was put to Mr Muir that there is no record in the file note about the relationship between Charmian and Rosemary. Mr Muir accepted this.[351] It was then put to Mr Muir that had Charmian told him that Rosemary was her niece, this would have been important information he would have included in the file note. Mr Muir did not accept this proposition, stating that the most important thing when identifying a beneficiary is the beneficiary’s name and he had identified Rosemary by name.[352] Mr Muir conceded that perhaps he should have included Rosemary’s relationship with Charmian in the file note, but did not see it as a ‘critical error’.[353] Mr Muir stated that he had obtained the information that Rosemary was Charmian’s niece from some source, but had no recollection of who that source had been.[354]
[351]T 141 L 5 – 8.
[352]T 141 L 9 – T 143 L 4.
[353]T 144 L 24 – 27.
[354]T 145 L 8 – 19.

Sixth, it was put to Mr Muir that there is no record in the file note of him asking Charmian about whether she had any children, had been in or was currently in a relationship, or had any other people in her life who might have a natural claim on her estate. Mr Muir accepted this proposition,[355] but stated that he was aware at the time of the meeting on 1 October 2010 that Charmian had never married and had no children.[356] Mr Muir stated the information that Charmian had never been married had come from Cilla, but did not recall the source of the information that Charmian had no children.[357] Mr Muir accepted that had he asked Charmian these questions, her responses would have been important information he would have included in the file note.[358]
[355]T 147 L 2 – 12.
[356]T 145 L 31 – T 146 L 20.
[357]T 146 L 21 – T 147 L 1.
[358]T 147 L 29 – T 148 L 6.

Mr Muir stated that he understood the phrase ‘a natural claim on the estate’ to mean ‘a relationship with a person who would have the capacity to bring a Part IV claim if he or she was - felt that they were not adequately provided for in a person’s will.’[359] Mr Muir understood such persons to include a spouse, domestic partner and child; those who could contend that there was a ‘moral obligation’ to make provision.[360] When asked whether he had had such a understanding when he saw Charmian on 1 October 2010, Mr Muir stated:

Mr Muir:[W]hen I saw Charmian in 2010, I had been informed that she had never been married. She was 80-something. She was living alone at that house. I didn’t feel it was necessary to enquire about relationships she might have with a third party, and I’m not certain of the source but I believed that she didn’t have any children, and she certainly did not make any reference in our discussions about a relationship with a third party or children. If she had - if she had made reference to children or a relationship, I certainly would have included it in the - it would have been part of the discussion and it would have been in this memorandum.[361]

[359]T 148 L 11 – 16.

[360]T 149 L 29 – T 150 L 8.

[361]T 148 L 18 – T 149 L 1.

A time ledger dated 15 December 2010 records 10 units (or 100 minutes[362]) billed by Mr Muir for the meeting with Charmian on 1 October 2010.[363] Mr Muir gave evidence that the 100 minutes would have included travel time from his office to Charmian’s house and back, such that approximately 40 to 50 minutes of the 100 minutes billed was for travel and approximately 60 minutes was for the actual meeting.[364]
[362]T 108 L 9.
[363]CB 651, Darrer Muir Fleiter Time Ledger printed 15 December 2010.
[364]T 108 L 3 – 22; T 177 L 16 – 26.

When asked how he had ‘formed the view that Charmian had more than adequate testamentary capacity’, Mr Muir gave the following evidence:

Mr Muir:Well, in the second sentence of the second paragraph, I think it talks about the concept of wills, the role of an executor and the need for selection of beneficiaries. So I would have discussed with Charmian the question of, 'Do you know what a will is, and what its purpose is?' 'Do you know what an executor is, and who is that going to be?' And then the beneficiaries, 'Who are the people who, upon you passing, will be the recipient of your assets?' And the reply I received from her gave me the confidence that she had an adequate understanding of the document that we were talking about, and that became even clearer as we went on to details about her assets. Because she'd told me that she had this house in Armadale, she had some shares, and made the point, which is recorded in that memo, that the value of those shares had in recent times dropped in value, and she also mentioned that she had a bank account with funds in it.[365]

[365]T 105 L 21 – T 106 L 6.

When asked why his view of Charmian’s testamentary capacity was ‘enhanced during the balance of [the] meeting’, Mr Muir stated it was due to:

Mr Muir:The way she nominated the beneficiaries. I mean, I didn't say to her, 'Why don't we just carve it up into 20 parts?' She had - I may have been part of the discussion, but she presented a structure broadly along the lines of - this is my recollection - broadly along the line of the bullet points in that memo.[366]

[366]T 106 L 14 – 20.

Mr Muir was cross-examined at length about the 1 October Note. It was put to Mr Muir that he had not recorded in the file note any detail of the specific questions that he had asked Charmian or her answers that had enabled him to form the view that she had adequate testamentary capacity.[367] Mr Muir in response stated:

Mr Muir:I had a discussion with her and no doubt that discussion dealt with things like, 'Who would you like to be the executor or executors?' 'Who are the beneficiaries?' And it's not as if suddenly she would answer the question. We'd have a discussion and that discussion would result in her providing me with instructions, and she did it in a very coherent manner.
…
[T]he questions I asked according to that memorandum included who was going to be the executor, who was going to be - who were going to be the beneficiaries. She answered all of those questions and nine beneficiaries and percentages and so forth. She doesn't just pluck those out of thin air without some knowledge and understanding of what we're talking about.[368]

[367]T 125 L 20 – 24; T 125 L 28 – T 126 L 3; T 126 L 21 – 25.

[368]T 126 L 3 – 9; T 126 L 25 – T 127 L 1.

Mr Muir accepted that he had not had any discussion with Charmian about the value of her assets according to the file note.[369] However, Mr Muir disagreed with the suggestion that he had had no ability to assess whether Charmian understood the value of her estate:
[369]T 127 L 11 – 13.

Mr Antill:[G]iven that you didn't have any discussion with her about the value of her assets, I put it to you that you had no ability to assess whether she understood the value and the nature of her estate?
Mr Muir:Well, she would know the value of her shares. She would know the balance of her bank account and she would know the value of property in Armadale.
Mr Antill:That's an assumption that you're making?
Mr Muir:What are you suggesting?’
Mr Antill:That's an assumption you're making, that she knew the value of her estate?
Mr Muir:Yeah, because as mentioned in that memorandum, I have - came to the conclusion that she had adequate testamentary capacity. Not just confined to the will, but she understood what was happening to - out there in terms of the property, the bank account, shares, et cetera.
Mr Antill:I'll just put the question to you again. Given that you didn't ask her any questions about the value of her assets, you had no ability to assess whether she understood the value of her estate?

Counsel for the defendant submitted that the following matters give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will:

In relation to knowledge and approval, the defendant relies upon the following suspicious circumstances:
a. Charmian was 85 years old when she made the will and had a long history of memory loss and cognitive decline and was suffering from early Alzheimer's type dementia and reported to be showing signs of confusion and paranoia.
b. The will was prepared by the plaintiff, someone who was not previously known to Charmian.
c. There is ample evidence Charmian suffered from hearing difficulties, wore hearing aids and sometimes failed to wear the hearing aids. However. Mr Muir did not notice this or make any file note or take any steps to ensure that Charmian heard what he said.
d. Charmian had never previously made a will. On 19 June 2009 Charmian told Elsdon Storey, Professor of Neuroscience at CDAMS, that she did not have a Will partly because of a superstitious feeling that not doing so may stave off illness and death. The Will represents a radical departure from Charmian's previous statements of testamentary intention. Further, Charmian did not provide any satisfactory explanation for such radical departure and the plaintiff has not provided any satisfactory explanation for such radical departure.
e. There is no cogent reason evident as to why Charmian suddenly changed her previous testamentary intention to die without having executed a will.
f. There is no cogent reason why the will omits Denise’s other daughter Vikki [sic] Brookes. The instructions included a gift to Denise’s daughter Sasha whereas the will includes a gift to Denise’s son Sasha. It appears that no enquiries were made of Charmian to confirm whether Charmian intended this gift to be to Denise’s son Sasha or alternatively Denise’s daughter Victoria.
g. The will incorrectly names Charles Laycock as Rosemary’s son. Given the long close relationship between Charmian and Charles, it would be expected that if Charmian read the will, she would have no difficultly picking up that error.
h. Cilla Brookes, one of the beneficiaries was heavily involved in the preparation of of the will. However, the Court has no clarity as to the extent of the involvement of Cilla Brookes given the lack of file notes made by Mr Muir as well as the failure of Cilla Brookes to recall key aspects of her involvement, such as whether or not Charmian told Cilla Brookes the reason why Charmian wanted to see a solicitor.

Furthermore, consideration needs to be given to the combination of the following pieces of evidence.
a. The file note of Mr Muir does not record any explanation of the will was given to Charmian on 16 October 2010.
b. This evidence of Lachlan Beer as to the usual practice of Mr Muir suggests that if Charmian did not ask any questions, then the parties would move directly into the signing process.
c. The evidence is that the meeting on 16 October 2010 likely only took 5-10 minutes.
d. The meeting took place at 5pm, the time that correlates with the condition known as sundowning, a condition that Charmian is reported to have experienced.
e. Charmian subsequently reported to Dr Fonda the reason she signed the will was because she did "anything to get rid of them".
f. Charmian did not pick up what should have been an obvious error to her that Charles was not Rosemary’s son.[657]

[657]Written submissions on behalf of the defendant dated 26 February 2025 [168] – [169].

The matters set out above do not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will.

Counsel for the defendant submitted that the will represented a radical departure from Charmian’s prior testamentary intention of dying intestate and that there is no satisfactory explanation for this radical departure. Assuming in the defendant’s favour that prior to October 2010 Charmian did intend to die intestate, I reject the submission that there is no explanation for Charmian’s decision to make a will.

Counsel for the defendant accepted that the ‘driver’ for Charmian making a will and bequeathing only 2.5% of her estate to Rosemary was Charmian’s anger with Rosemary, including for reasons related to the loss of her driver’s licence and the prospect of being placed in a nursing home.[658] Charmian’s anger with Rosemary provides a plausible explanation for why she decided in late September 2010 to make a will.
[658]T 662 L 25 – T 663 L 18.

I do not accept the defendant’s submission that the circumstances giving rise to the preparation of the will are suspicious. There is no allegation of undue influence. However, the defendant submits that Cilla was heavily involved in the preparation of the will and that she received a bequest equating to 15% of Charmian’s estate. I reject the submission that Cilla’s involvement in the preparation of the will constitutes a suspicious circumstance. Cilla’s involvement in the preparation of the will was limited. In response to a request from Charmian for the contact details of a solicitor, Cilla provided Charmian with Mr Muir’s contact details. Thereafter, Cilla had a brief discussion with Mr Muir to inform him of Charmian’s request for assistance with the preparation of the will. There is no evidence which even faintly suggests that Cilla had any discussions with Charmian regarding the beneficiaries of her estate. It was not put to Cilla during cross-examination that she had suggested to Charmian who the beneficiaries of the estate should be and what proportion of the estate the beneficiaries should receive. For the sake of completeness, I record my finding that Cilla had no discussion with Charmian regarding the contents of her will at any time prior to 18 October 2010.

I do not accept the defendant’s submission that there is anything suspicious about the contents of the will. The fact that the will names eight of Charmian’s relatives does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will. The instructions given to Mr Muir on 1 October 2010 included instructions that 15% of her estate would pass to ‘Sasha’. I accept Mr Muir’s evidence that he assumed the reference to Sasha to be a reference to a female, but that he was subsequently told that Sasha was Denise’s son.[659]
[659]T 152 L 8 – 13.

I do not accept that the erroneous reference to ‘Charles Laycock’ as one of Rosemary’s three sons gives rise to a suspicion that Charmian might not have appreciated and approved the contents of the will. Charmian plainly intended to make a bequest to Rosemary’s three sons: Lachlan, Nicholas and Rupert. The erroneous reference to Charles in lieu of Nicholas does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will.

The defendant submits that there is no cogent reason why the will does not make a bequest to Denise’s daughter Vicki. I reject this submission. Cilla gave unchallenged evidence that Denise and Vicki were estranged between 1991 and 2019.[660] There is no evidence that in the years prior to 2010 Charmian had any contact with Vicki. Cilla could not recall Charmian ever discussing Vicki when Cilla visited Charmian during the 2000s.[661] The failure to make a bequest to Vicki does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of her will.
[660]T 364 L 10 – 17.
[661]T 381 L 19 – 28.

The defendant submits that Mr Muir did not notice that Charmian wore hearing aids and did not take any steps to ensure Charmian heard what he said when he took instructions for the will on 1 October 2010 and when he met Charmian for the execution of the will on 18 October 2010. I infer that the reason why Mr Muir did not notice that Charmian was wearing hearing aids is that during his interactions with Charmian on 1 and 18 October 2010 Charmian gave no indication that she was having any difficulty hearing and understanding what Mr Muir was saying to her. Mr Muir met with Charmian for approximately 60 minutes on 1 October 2010.[662] On 5 October 2010, Mr Muir had a further discussion with Charmian by telephone. His note of that conversation is as follows:

I spoke to Charmian and told her that Cilla had indicated that her mother Denise was a little reluctant to act as executrix of the estate and that Cilla has suggested that I could perhaps act as executor. Charmian responded by indicating that that would be perfect in her mind as I would be a “third party” and separate from the beneficiaries. She said that she would like me to proceed on that basis.[663]

[662]T 108 L 3 – 22.

[663]CB 32, File note of Mr Muir dated 5 October 2010 (italics in original).

It is clear from this file note that Charmian understood the subject matter of the conversation and responded meaningfully.

When the will was executed on 18 October 2010, Mr Muir was accompanied by Mr Beer and Ms Keizer from his office. This was a short meeting, which may have only have taken 5 to 10 minutes.[664] Although the meeting on 18 October 2010 was short, Mr Muir’s file note records a discussion between himself and Charmian. If Charmian had been experiencing any difficulties hearing and/or understanding what Mr Muir was saying to her, this would have been apparent to one of Mr Muir, Mr Beer or Ms Keizer. There is no evidence to suggest that any of them perceived that Charmian was having any difficulty hearing or understanding what Mr Muir was saying to her. At the end of the meeting, Charmian stated that she would like to consider the possibility of making provision for some of her other cousins. This supports a finding that Charmian understood that the will was making a bequest to the eight nominated beneficiaries, but that there were other relatives, not named in the will, who were not receiving a bequest.
[664]T 178 L 16 – 23.

I do not accept the defendant’s submission that the failure of Mr Muir to record in his file note of 18 October 2010 that an explanation of the will was given to Charmian constitutes a suspicious circumstance. I accept Mr Muir’s evidence that on 18 October 2010 he followed his usual practice of paraphrasing the provisions of the will and satisfying himself that the will reflected his client’s wishes.

I do not accept that the exchange which took place between Charmian and Dr Fonda on 26 April 2011 constitutes a suspicious circumstance. Dr Fonda’s report dated 26 April 2011 includes the following:

As best I can understand, [Charmian] had no prior Will until a couple weeks ago when a distant relative, Denise Pringle (she could not remember her married name) arrived at her home with a drawn up Will for her to sign, leaving the majority of her Estate to Denise Pringle and her family. She cannot recall the contents of the Will and whether anything was given to anyone else. When I asked her why she signed it, she indicated that she did “anything to get rid of them”. She could not recall who the witness was. She was further annoyed to be subsequently provided with a bill to cover the expense of that occasion. She felt it was not a big issue as her “assets were not all that great”.[665]

[665]CB 25 – 26, Dr Fonda’s Assessment of Charmian’s Capacity dated 26 April 2011.

The account provided to Dr Fonda by Charmian on 26 April 2011 was factually incorrect. The will was executed on 18 October 2010, more than six months prior to 26 April 2011, yet Dr Fonda’s report records that the will had been made ‘a couple of weeks ago’. Denise Pringle (Brookes) was not present at Charmian’s home on either 1 October 2010 when the instructions for the will were taken or 18 October 2010 when the will was executed. Mr Muir did not arrive at Charmian’s residence unannounced. Rather, he attended in circumstances where, prior to his attendance, an appointment had been made for him to do so. There is no evidence that Charmian was agitated on 18 October 2010 or wished to ‘get rid of’ Mr Muir and his colleagues. Mr Muir had been recommended to Charmian by Cilla, who was herself a lawyer and someone who Charmian trusted. The discussion between Mr Muir and Charmian at the end of the meeting on 18 October 2010 during which Charmian raised the possibility of amending the will to make provision for other cousins is inconsistent with Charmian having wished to ‘get rid of’ Mr Muir and his colleagues.

By April 2011, Charmian’s cognitive function had significantly declined relative to October 2010. It is highly unlikely that in April 2011 Charmian could have, unaided, provided the instructions which she provided to Mr Muir on 1 October 2010 for the preparation of her will. In his report of 26 April 2011, Dr Fonda recorded the following:

It took some time for me to understand who her potential beneficiaries might be. She never married and has no children. She indicated she had one brother, Randal Watt, (deceased) who has one child only, yourself. Her father, Charles, was one of five or six siblings, one of whom was a sister. She had a daughter, Alice Pringle, who was your aunt’s first cousin. Alice Pringle (now deceased) has two children, Denise and Julian. It is Denise who initiated this Will. Charmian indicated that there are many such relatives. I did not get clarity of the family on her mother’s side.

This account stands in stark contrast with Mr Muir’s evidence of the exchange which he had with Charmian on 1 October 2010. His file note of 1 October 2010 supports a finding that Charmian, unaided and unprompted, identified eight beneficiaries and the proportion of her estate they were to receive.

Dr Fonda gave evidence that there would have been no difference in Charmian’s cognitive function between September 2010 when she was diagnosed with dementia, and late April 2011 when he assessed her testamentary capacity.[666] I do not accept this evidence.
[666]T 261 L 28 – T 262 L3.

On 11 November 2010, Charmian contacted Mr Muir and sought his advice in relation to any steps which she could take to overturn the suspension of her driving licence by VicRoads.[667] This demonstrates that more than three weeks after the execution of the will, Charmian knew who Mr Muir was. However, by early April 2011 when Charmian disclosed to Rosemary that she had executed a will, she had no idea who Mr Muir was, as evidenced by the fact that she did not mention him as a person involved in the preparation of the will. This is objective evidence of a significant cognitive decline between late 2010 and April 2011.
[667]T 118 L 5 – 18; CB 609, File note of Mr Muir dated 11 November 2010.

On 23 December 2010, Dr Wright made a record of a phone call with Rosemary in which she noted:

[Charmian’s] memory much worse – discussion with niece per phone – [Rosemary is] at her wits end and may have to put [Charmian] in a home – waiting for developments.[668]

[668]CB 303, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.

This file note supports a finding that during the period from mid-November to late December 2010, Charmian experienced cognitive decline. This continued until April 2011, by which time she had no recollection of the actual circumstances in which the will had been executed or the involvement of Mr Muir. Charmian’s account to Dr Fonda on 26 April 2011 of the circumstances in which the will had been executed does not constitute a suspicious circumstance, because it is totally divorced from the reality of what occurred on 18 October 2010 when the will was executed.

If, contrary to the findings set out above, the circumstances in which the will was executed do give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will, I am, in any event, satisfied that Charmian did know and approve the contents of the will. This finding is supported by Mr Muir’s file notes of 1 October 2010 and 18 October 2010 and the evidence of his usual practice when taking instructions for a will and when attending a client for the purpose of the execution of a will. I accept Mr Muir’s evidence that he would have followed his usual practice on 1 October 2010 and 18 October 2010.

In addition to Mr Muir’s evidence as to his usual practice of explaining the contents of the will, I am also satisfied that Charmian would have read and understood the will prior to meeting Mr Muir on 18 October 2010. The final draft of the will was sent to Charmian on 5 October 2010. Charmian initiated the process for the preparation of the will by asking Cilla to recommend a solicitor. Charmian was motivated by her anger towards Rosemary and a wish to ensure that Rosemary only received a small part of her estate. When Charmian received the draft of the will, it is highly likely that she would have read it carefully to ensure that it reflected her desire to limit Rosemary’s share of the estate to 2.5%. Further, as the draft will only contained three clauses, it is also highly likely that Charmian would have read clause 3 prior to meeting Mr Muir on 18 October 2010.

Severance of clause 3

Counsel for the defendant advanced an alternative submission that if the Court was satisfied that Charmian had knowledge and approval of clauses 1 and 2 of the will, it should nevertheless sever clause 3. Clause 3 of the will provides:

I DECLARE that my Trustee being a solicitor may charge and be paid all usual professional fees for services rendered by him in connection with the proving of this my Will and the administration of the trusts hereby created as if he were not an executor and trustee hereof.[669]

[669]CB 45, Will of Charmian Watt dated 18 October 2010.

Charmian did not provide instructions to Mr Muir on 1 October 2010 to include a charging clause in the will. Clause 3 was included in the will following a discussion between Charmian and Mr Muir on 5 October 2010 during which Mr Muir informed Charmian that Denise was reluctant to act as executrix of the estate, and that Cilla had suggested that Mr Muir could act as executor. Charmian had responded ‘by indicating that that would be perfect in her mind as I would be a ‘third party’ and separate from the beneficiaries’.[670] Charmian told Mr Muir to proceed on the basis that he would be the executor of the estate.[671]
[670]CB 32, File note of Mr Muir dated 5 October 2010 (italics in original).
[671]Ibid.

On 5 October 2010, Mr Muir mailed a draft of the will to Charmian which included clause 3.[672] Mr Muir’s file note of his meeting with Charmian on 18 October 2010 does not record that he explained clause 3 to her. Mr Muir gave evidence that he was ‘certain’ that he would have explained to Charmian that clause 3 was designed to cover the legal fees for his services and administering the estate.[673] I accept Mr Muir’s evidence that when he met Charmian on 18 October 2010, he would have followed his usual practice of paraphrasing each clause in the will.[674]
[672]CB 199, Letter from Mr Muir to Charmian dated 5 October 2010.
[673]T 181 L 11 – 13, 23 – 25.
[674]T 181 L 9 – 10; T 181 L 28 - T 182 L1.

The defendant’s counsel put to Mr Muir that he had not explained to Charmian that in addition to the fees he could charge pursuant to clause 3, he was also entitled to charge a commission of up to 5% of the value of the estate pursuant to s 65 of the Administration and Probate Act 1958 (Vic).[675] I accept that Mr Muir did not make any reference to his right to charge commission under s 65 of the Administration and Probate Act when he explained clause 3 to Charmian. Rather, he told her that clause 3 covered his legal fees for proving the will and administering the estate. Mr Muir’s failure to make any reference to his right to charge commission pursuant to s 65 of the Administration and Probate Act does not mean that Charmian did not have knowledge of and approve clause 3. Mr Muir’s right to charge commission under s 65 of the Administration and Probate Act did not arise under clause 3 of the will. Clause 3 conferred a right on Mr Muir to charge legal fees for proving the will and administering the estate. Charmian had knowledge of and approved Mr Muir’s right to charge fees pursuant to clause 3.
[675]T 181 L 8 – 9.

I reject the defendant’s submission that clause 3 should be severed from the will on the basis that Charmian did not have knowledge of and approve the clause.

Conclusion

Charmian had dementia when she provided Mr Muir with instructions for the preparation of her will on 1 October 2010 and when she subsequently executed the will on 18 October 2010. Although Charmian had dementia, in October 2010 there were periods when, in the words of Dr Fonda, ‘the light globes were fully switched on’. The evidence of Mr Muir, who was a very credible witness, supports a finding that when Charmian met with him on 1 October 2010 and 18 October 2010 she was capable of deliberately forming an intelligent purpose as to who would be the beneficiaries of her estate and what their respective share of the estate would be.

It was unreasonable for Charmian to have borne ill-will towards Rosemary because Rosemary had been involved in the loss of her driving licence and had raised the prospect of Charmian moving into a nursing home. Equally, it was unreasonable for Charmian to have been motivated by this ill-will when she made a bequest to Rosemary which equated to 2.5% of her estate. Nevertheless, the bequest was not invalid.

On 18 October 2010 when Charmian executed the will, Charmian had testamentary capacity and knew and approved of each clause in the will. Charmian’s will dated 18 October 2010 will be admitted to probate. I shall provide the parties with an opportunity to make submissions as to the form of order to give effect to this judgment. I shall also provide the parties with an opportunity to make submissions on the costs of the proceeding.

[2025] VSC 287

23 May 2025