O'Dea v McInerney

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
In the Estate of O'DEA (DECEASED)
O’DEA v MCINERNEY & ORS
[2024] SASC 110
Judgment of the Honourable Justice McIntyre
SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY - PRESUMPTION AND EVIDENCE OF DUE EXECUTION
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS
The applicant, Peter Francis O’Dea applied to this Court to determine which, if any, of four wills of his relation Ms Shirley Margaret O’Dea should be admitted to probate. These wills are dated 25 January 2019, 26 December 2018, 15 February 2018 and 30 March 2016. Ms O’Dea died in October 2020 at the age of 96.
On the face of the documents, each will complies with s 8 of the Wills Act 1936 (SA). They were all prepared by a solicitor experienced in drafting wills. They all bear the signature of Ms O’Dea and two witnesses. However, the applicant who is the executor in each of the four wills was uncertain as to which of the wills was the last valid will of Ms O’Dea due to a number of circumstances including:
•Concerns about Ms O’Dea’s capacity arising from information from her General Practitioner, an email from a community health nurse to the GP and an ACAT assessment.
•The fact that there had been a significant change to the December 2018 and January 2019 wills in favour of the first respondent compared to Ms O’Dea’s previous wills.
•Whether Ms O’Dea had knowledge of the contents of the January 2019 will when it was executed.
•Conversations that had apparently occurred between the first respondent and Ms O’Dea in August 2018; and
•Conversations that the applicant had with the first respondent in 2015 and on 5 July 2020.

The applicant takes no position as to which, if any, of the four wills should be admitted.
The first respondent James Vincent McInerney seeks that the 25 January 2019 will or, in the alternative, the 26 December 2018 will, be admitted to probate. The second respondent, the Catholic Church Endowment Society Incorporated, and third respondent, Dr Harold Lane, contend that Ms O’Dea did not have testamentary capacity at the time of the execution of the 25 January 2019 will or the 26 December 2018 will, and that the 15 February 2018 will should be admitted to probate. Nobody contends that the will incorrectly dated 30 March 2016, but executed on 30 March 2017, should be admitted to probate. The evidence established that this document did not represent the testamentary intentions of Ms O’Dea as communicated to her solicitor.
Ms O’Dea’s estate was substantial. The main asset comprised six parcels of farmland around Riverton South Australia. The first respondent is the major beneficiary of the farmland in the January 2019 and December 2018 wills. The second respondent is the major beneficiary of the farmland in the earlier two wills. The third respondent is to receive a bequest of land under the earlier two wills, but only a life interest in that same land in the later two wills which will then revert to the first respondent. The applicant and his brother have the same entitlement to land under each of the wills.
HELD:
1.There is evidence of due execution of the February 2018, December 2018, and January 2019 wills.
2.The January 2019 and December 2018 wills are not rational and, in any event, the presumption as to testamentary capacity has been rebutted by doubt in relation to each.
3.The first respondent has not discharged the burden of proving testamentary capacity in relation to the January 2019 and December 2018 wills.
4.Further, the presumption of knowledge and approval has also been rebutted and the first respondent has not produced affirmative evidence to establish that Ms O’Dea knew and approved of the contents of the January 2019 and December 2018 wills.
5.The presumption of testamentary capacity has not been rebutted in relation to the February 2018 will nor has the presumption that Ms O’Dea knew and approved of the contents of that will.
6.The February 2018 will is to be admitted to probate.

Evidence Act 1929 (SA) s 34C; Wills Act 1936 (SA) s 8, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Roche v Roche [2017] SASC 8; Thomas v Nash 107 SASR 309; Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; Veall v Veall [2015] VSCA 60; Bull v Fulton (1942) 66 CLR 295; Saunders v The Public Trustee [2015] WASCA 203; Moloney v Hayward & Ors [2022] SASC 79; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Tobin v Ezekiel [2012] NSWCA 285; Briginshaw v Briginshaw (1938) 60 CLR 336; Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275; Fradgley v Pocklington (No 2) [2011] QSC 355 at [28]; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007; Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197; Van den Heuvel v Tucker (2003) 85 SASR 512; Crago v McIntyre [1976] 1 NSWLR 729, considered.

In the Estate of O'DEA (DECEASED)
O’DEA v MCINERNEY & ORS
[2024] SASC 110
Civil: Trial

McINTYRE J: The applicant, Peter Francis O’Dea, (‘Jack O’Dea’) applied to this Court to determine which, if any, of a number of wills of his relation Ms Shirley Margaret O’Dea (‘Shirley O’Dea’) should be admitted to probate. There are four testamentary documents in issue. These are as follows:[1]
·25 January 2019 (‘January 2019 will’).
·26 December 2018 (‘December 2018 will’).
·15 February 2018 (‘February 2018 will’).
·30 March 2016 (‘March 2017 will’).
[1] It is uncontentious that the date on this will is incorrect and ought to be 30 March 2017.
Jack O’Dea is the named executor in each of the four wills that are the subject of these proceedings. He is also a beneficiary in each will. His entitlement is the same in each. The first respondent, James Vincent McInerney, (‘Jim McInerney’) is the major beneficiary of the January 2019 and December 2018 wills. The second respondent, Catholic Church Endowment Society Inc, (‘the Church’) is the major beneficiary of the February 2018 and March 2017 wills. The third respondent, Dr Harold Lane (‘Dr Lane’) is to receive a bequest of land under the February 2018 and March 2017 wills but only a life interest in the same land under the January 2019 and December 2018 wills. Upon the death of Dr Lane, the land reverts to Jim McInerney.
For the reasons that I now deliver:
·I am not satisfied that Shirley O’Dea had testamentary capacity at the time she provided instructions for and executed the January 2019 will or the December 2018 will. I declare both invalid.
·I am satisfied that the February 2018 will should be admitted to probate.
·I will hear the parties as to the form of the orders.
Background
Shirley O’Dea was born on 10 September 1924 and died on 5 October 2020. She was 96 years of age. She was single and had no children.
Shirley O’Dea lived her entire life in the mid-North of South Australia. She was born and raised in Hamley Bridge. Between 2007 to 2011 she lived in Riverton and, between 2011 and 2014 she lived in a house in Balaklava. In 2014 Shirley O’Dea moved into an independent living unit at Mill Court in Balaklava in 2014. She moved into the adjacent Balaklava Nursing Home in January 2019 where she remained until her death.
Shirley O’Dea came from a farming family. She had three sisters who predeceased her. She was particularly close to her sister Phyllis O’Dea who she lived with until Phyllis O’Dea’s death in 2009. Shirley O’Dea was passionate about her family and about farming. She was a devout Catholic. Shirley O’Dea was also greatly interested in horse racing and, in particular, the Balaklava Racing Club. Shirley O’Dea, and her sister Phyllis O’Dea (“the O’Dea sisters”), regularly attended race meetings at Balaklava. The O’Dea sisters sponsored a race for prize money in the name of the O’Dea Family,
At the time of her death, Shirley O’Dea owned farmland around Riverton South Australia that she inherited from her family. Her estate is substantial. It was valued at approximately $3,855,000 as at the date of her death. This comprised:
·Six parcels of farming land. Section 405, 431, 480, 270, 375 and 407 in the Hundred of Alma valued at $3,480,000. The land has increased in value and is now valued at approximately $6,250,000.[2]
·Bank accounts with balances of approximately $25,000; and
·Residential accommodation bond with the Balaklava Aged Care Community Homes of $350,000.
[2] Exhibit R2 59.
In addition, there is lease income for some of the farmland which is being received and held in trust by Jack O’Dea as executor.
Shirley O’Dea made many wills over the course of her life, frequently changing pecuniary legacies to various beneficiaries. The bequest of the farming land remained largely unchanged from 2001 until the December 2018 will. The disposition of the land in the propounded wills is as follows:
·March 2017 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane[3] was the devisee of section 407.
·February 2018 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane was the devisee of section 407.
·December 2018 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney.
·January 2019 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney.
·The balance of the farming land was left jointly to Jack O’Dea and his brother Anthony O’Dea (“the O’Dea brothers”), in each of the four wills.
[3] Dr Lane was the devisee with his late wife Mrs Peggy Lane in all four wills. For simplicity I will refer to this bequest as his alone.
On the face of the documents, each will complies with s 8 of the Wills Act 1936 (SA) (‘the Act’). They were all prepared by a solicitor experienced in drafting wills. They all bear the signature of Shirley O’Dea and two witnesses. Where a will is duly executed and complies with s 8 of the Act, two legal presumptions arise. First, that the deceased possessed the necessary testamentary capacity to execute the will; and second, that the testator had knowledge of, and approved, the contents of the will. Both presumptions are rebuttable.
Jack O’Dea filed this application saying that he found himself in a situation of doubt or difficulty as to which of the various testamentary documents was Shirley O’Dea’s last will and testament. His affidavit of 17 June 2021[4] sets out the various wills of which he was aware and also the steps that he had taken to locate Shirley O’Dea’s last will. He also outlined the basis of his doubts.[5] In summary these were in his later affidavit:
·Concerns about Shirley O’Dea’s capacity arising from information from her General Practitioner Dr Nyoni, an email from a community health nurse to Dr Nyoni and an ACAT assessment;
·The fact that there had been a significant change to the December 2018 and January 2019 wills in favour of Jim McInerney compared to Shirley O’Dea’s previous wills;
·Whether Shirley O’Dea had knowledge of the contents of the January 2019 will when it was executed;
·Conversations that had apparently occurred between Jim McInerney and Shirley O’Dea in August 2018; and
·Conversations that Jack O’Dea had with Jim McInerney in 2015 and on 5 July 2020.
[4] Exhibit A 6.
[5] Exhibit A 7 [20] – [45].
Legal principles
There is little dispute between the parties as to the relevant legal principles.
A will may only be admitted to probate if it is proved that, at the time of its execution, the testator had testamentary capacity. The traditionally accepted test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow (‘Banks’):[6]
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties- that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[6] (1870) LR 5 QB 549 at [565] (‘Banks’).
The Banks test has four essential components:[7]
[7]    Roche v Roche [2017] SASC 8 (‘Roche’).
1.The testator must understand the nature of the act of making a will and its effect.
2.The testator must understand the nature of the property they are disposing of.
3.The testator must understand and appreciate the nature of the claims to their property by those who will be excluded by the will.
4.The testator should have no disorder of the mind that poisons their affections, perverts their sense of what is right or prevents the exercise of their natural faculties.
It is not necessary that mental illness be present. Rather a broad range of cognitive, emotional, and mental dysfunctions might be relevant in assessing capacity. It is important to note that:[8]
A testator may have testamentary capacity even if his or her cognitive function is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for the functioning. However, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.
It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes.
…
A radical departure from long adhered to testamentary intention may also support an inference of incapacity at least in the absence of an adequate explanation.[9]
[8]    Thomas v. Nash (2010) 107 SASR 309 [71].
[9]    Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [372]–[377] (‘Budniak’).
Where a doubt arises as to the testamentary capacity of a testator, the evidential onus of proving capacity lies with the propounder of the will.[10] Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased’s mental state did not influence the will.[11] The relevant time at which the existence of capacity is necessary is the time when the testator made the will, not years or decades earlier.[12] Evidence of earlier or later events will only be relevant to the extent that they are capable of supporting inferences as to the capacity of the testator at the relevant time. The question of whether a person had testamentary capacity at the time of making a will is a legal rather than a medical question.[13] The question must therefore be determined by the Court not by experts. Nonetheless the determination of the legal question can, and often will, be greatly assisted by the evidence of medical experts.[14] Further, lay witnesses, including solicitors, are often in a position to provide probative evidence for determining testamentary capacity.[15] Testamentary capacity is always a question of fact.
[10] Veall v Veall [2015] VSCA 60 (‘Veall’).
[11] Bull v Fulton (1942) 66 CLR 295 (‘Bull’).
[12] Saunders v The Public Trustee [2015] WASCA 203 (‘Saunders’).
[13] Saunders at [200].
[14] Moloney v Hayward & Ors [2022] SASC 79 at [276] (‘Moloney’).
[15] Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (‘Zorbas’).
It must also be proved that the testator knew and approved the contents of the will at the time it was executed so that it can be said that the testator comprehended the effect of what she was doing and so that it can be said that the will reflects the real intentions and the true will of the testator. If testamentary capacity is proved, due execution of the will raises a presumption that the testator knew and approved the contents of that will at the time of execution. The presumption can be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the true intentions of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved the contents of the will.[16]
[16] Tobin v Ezekiel [2012] NSWCA 285 (‘Tobin’).
A number of circumstances have been identified which may create a well-grounded suspicion or doubt as to whether a will expresses the true intentions of the testator including: [17]
1.A radical change in long adhered to testamentary dispositions of the testator.
2.The complexity of the will or the estate being disposed of.
3.The mental acuity or sophistication of the testator.
4.The exclusion of persons naturally having a claim on the testator.
5.Whether there has been an opportunity for reflection and independent advice regarding the terms of the will.
[17] Budniak.
The propounder of the will carries the legal onus of proof as to testamentary capacity, knowledge, and approval. The shifting of the evidentiary burden in the context of the presumptions does not indicate a reversal of the ultimate burden of proof.[18] The standard of proof is the balance of probabilities in accordance with Briginshaw v Briginshaw.[19]
[18] Veall.
[19] (1938) 60 CLR 336 (‘Briginshaw’).
The parties’ respective positions
Jim McInerney is critical of Jack O’Dea for bringing these proceedings. Jack O’Dea found himself uncertain as to which of the wills is the last valid will of the deceased. His reasons for being uncertain are well founded given the circumstances. He has no interest in any particular will as his entitlement under each is the same. It was entirely consistent with the duties imposed upon executors that Jack O’Dea sought the assistance of the Court in determining the validity of the wills. Jack O’Dea does not propose any particular will.
Jim McInerney propounds the January 2019 will and, failing that, the December 2018 will as Shirley O’Dea’s last will and testament.[20]
[20] Tobin at [44]-[53]; Veall at [166]-[179].
The Church and Dr Lane propound the February 2018 will as Shirley O’Dea’s last will and testament.
Given the issues with the March 2017 will that have come to light as a result of these proceedings, no one contends that this will represents Shirley O’Dea’s last will and testament. It does not, on any view, represent her testamentary intentions on that occasion.
To resolve these issues, it is necessary to consider the evidence concerning several topics including Shirley O’Dea’s previous wills, her relationship with the various beneficiaries, the circumstances in which each of the wills was prepared and executed and Shirley O’Dea’s circumstances throughout.
Hearing

The taking of evidence in this matter occurred from 4 October 2023 up to and including 20 October 2023. The parties tendered a large volume of materials. Jack O’Dea and Dr Lane gave evidence but called no other witnesses. Jim McInerney gave evidence and called a number of witnesses. The Church also called a number of witnesses. At the conclusion of the hearing, all parties filed written submissions which were supplemented by oral submissions on 1 February 2024.
Witnesses
The lay witnesses largely gave their evidence-in-chief by affidavit. Some affidavits were redacted following rulings on objections. Some witnesses supplemented their affidavit evidence with oral evidence both in chief and under cross-examination.
Jim McInerney called a number of witnesses as follows:
·Long term friends and acquaintances of Shirley O’Dea: Annette Elizabeth Barker, Michael John Schilling, Father Brian Joseph Ahern, Rosemary Kathleen Galton, Cathryn Mary Blackwell, John Beeton Robbins, Lorena Torres, Kirsty Corinne Ingram, Christian Charles Hudson.
·Raymond Noel McCracken, who had known Shirley O’Dea for over 15 years and witnessed the will signed on 25 January 2019;
·Rebecca Louise Durdin, who did not know Shirley O’Dea but who witnessed the will signed on 25 January 2019;
·Debra Paul Swan, a Justice of the Peace who was a witness to Shirley O’Dea signing an advanced care directive and enduring power of attorney on 18 January 2019;
·Two nurses at Mill Court, Maureen Fay Pisano and Molly Christine Smallacombe, who were witnesses to the will signed on 26 December 2019;
·Two solicitors who acted for Shirley O’Dea in relation to her testamentary affairs, David Luke Evans and Gregory Charles Anderson;
·Laura Jane Sullivan, Gregory Anderson’s personal assistant;
·Mark Vincent McInerney, Jim McInerney’s son;
·Julie-Ann Christie, a nurse at Mill Court who witnessed the respite agreement signed by Shirley O’Dea on 4 January 2019; and
·Rebecca Mary Hudson, the CEO of Mill Court.
In addition, Jim McInerney tendered two affidavits. The first was from his wife, Margaret Kaye McInerney sworn on 13 July 2023,[21] who was not required to be cross examined. The second was an affidavit of Maureen Roberts, an employee of Country Home Services, who helped Shirley O’Dea by driving her to appointments from 2018 to March 2020. That affidavit was sworn on 13 July 2023 admitted under s 34C of the Evidence Act (SA) 1929.[22]
[21] Exhibit R1 32.
[22] Exhibit R1 114.
The Church called the following witnesses;
·Dr Langton Nyoni, Shirley O’Dea’s general practitioner;
·Ian Wedding, who leased farming property from Shirley O’Dea;
·Suzanne McDonald, and Sonja Suzanne Gangell, community nurses who attended Shirley O’Dea;
·Anthony O’Dea, Jack O’Dea’s brother;
·Father Mark Sexton, Father James Boog and Father David Thoroughgood, all of whom were priests who knew Shirley O’Dea; and
·Naya Fisher and Leo Redden, who both worked at a business in Riverton. They were witnesses to a 2011 will and saw Shirley O’Dea in connection with her farming business and insurance on a regular basis.
In addition to these witnesses, a number of expert witnesses were called as to Shirley O’Dea’s likely testamentary capacity at the material times. None of these experts had the opportunity to assess Shirley O’Dea. Their opinions were based upon the lay evidence and medical records tendered in evidence. Their reports and evidence were received de bene esse. I will deal with the reasons for this and my ruling later in these reasons. These witnesses were:
·Adjunct Professor Tully Rosenfeld a consultant geriatrician and physician who prepared two reports for the first respondent dated 20 February 2023 and 14 August 2023;[23]
·Dr Alicia Innis a geriatrician who prepared a report for the second respondent dated 22 September 2023;[24] and
·Dr Sara Lucas a clinical neuropsychologist engaged by the second respondent who provided two reports dated 9 February 2023 and 23 September 2023.[25]
[23] Exhibit R1 95; Exhibit R1 96.
[24] Exhibit R2 101.
[25] Exhibits R2 97; Exhibit R2 98.
Finally, some expert valuation evidence was tendered by consent.[26] There is no controversy concerning this evidence.
[26] Exhibit R2 58; Exhibit R2 59.
A solicitor’s obligation
The task of taking instructions for a will is an onerous one particularly in the case of an elderly person such as Shirley O’Dea. Likewise, the preparation and execution of wills is a task of critical importance for any legal practitioner. The duties imposed on solicitors are summarised by McMillan AJ in Hayward v Moloney:[27]
[27] Moloney at [278] – [282].
[279]A solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving the instructions freely and voluntarily and that the effect of the will is understood.[28] In carrying out that duty solicitors must take reasonable steps to satisfy themselves that a testator has testamentary capacity at the relevant time.
[28] Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275.
[280]Where a testator is elderly, it is generally considered prudent that a medical opinion be obtained as to the testator’s medical condition and whether any such conditions may affect the testamentary capacity of a testator.[29]
[29] Fradgley v Pocklington (No 2) [2011] QSC 355 at [28].
[281]A solicitor’s duties when taking instructions and preparing wills for a client vary depending on the circumstances. In Ryan v Dalton; Estate of Ryan (‘Ryan v Dalton’), Kunc J set out a useful summary of the matters for a solicitor to consider when retained to prepare wills, in particular, for elderly clients:[30]
[30] [2017] NSWSC 1007 (‘Ryan v Dalton’).
(1)     The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.
(2)     A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.
(3)     In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.
(4)     In case of anyone:
(a) over 70;
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity,
the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.
(5)     Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided. [31]
[282] His Honour also emphasised that in the many cases that come before the Court, the evidence of the solicitor will be critical. For that reason, it is essential that a solicitor make full and contemporaneous file notes of their attendances on the client and any other persons and that those file notes be retained indefinitely.[32]
[31] Ibid at [107].
[32] Ibid at [108].
What were Shirley O’Dea’s testamentary dispositions in the years prior to the contested wills?
Shirley O’Dea was a prolific will maker. David Evans was her solicitor until Gregory Anderson commenced to represent Shirley O’Dea, in late 2015 to early 2016. Both solicitors prepared a number of wills for Shirley O’Dea.
David Evans gave evidence about the earlier wills that he had been instructed to prepare on behalf of Shirley O’Dea. The executed copies of the wills are not available but there is no reason to doubt that the file copies produced by David Evans are true and correct records of the wills he was instructed to prepare. David Evans was an impressive witness. His evidence was clear and cogent. His files were professional and included clear and careful notes of instructions given and advice provided. Regrettably, the same cannot be said of Gregory Anderson or his files.
Gregory Anderson was Shirley O’Dea’s solicitor in relation to each of the subject wills. Unfortunately, the way in which Gregory Anderson took and recorded instructions from Shirley O’Dea, and the way he prepared her wills, fell considerably short of what was required to comply with the obligations of a solicitor as set out above. In addition, there were issues with the way in which he arranged for the execution of two of the contentious wills. Gregory Anderson did not take proper notes of significant matters. His evidence was unreliable. On several occasions it was inconsistent with his file notes, his affidavits,[33] and other objective evidence.
[33] Exhibit R1 50; Exhibit R1 51.
Between December 2001 and June 2009, Shirley O’Dea gave instructions for, and made, a number of wills which first gave her estate to her sister, Phyllis O’Dea, but, if Phyllis O’Dea predeceased her, gave sections 405, 480 and 270 to the Church and section 431 to Dr Lane and his wife, Peggy Lane (“the Lanes”) absolutely.
Ms Phyllis O’Dea died in November 2009. Between December 2009 and February 2018, Shirley O’Dea provided instructions for, and made, a number of wills which all gave sections 405, 480 and 270 to the Church. Originally the gift was to the Archdiocese of Adelaide but in 2011 the beneficiary became the Catholic Parish that incorporates the Riverton Church. The gift continued to benefit the Church. From March 2007, Shirley O’Dea’s wills and those of her sister, Phyllis O’Dea, included a condition that if the Church sold the land the proceeds were to be used for the establishment of the “O’Dea Home”, a retirement home for Priests.
Shirley O’Dea’s wills of December 2009, June 2009 and December 2010 gave section 431 to the Lanes absolutely. Subsequently, Shirley O’Dea’s wills between May 2011 and February 2018 gave section 407 to the Lanes absolutely.
From May 2011 until September 2014, all of Shirley O’Dea’s wills gave an interest in section 431 to the O’Dea brothers and Barbara Barker. From the September 2014 will up to and including the last will (including the contested wills), section 431 was given absolutely to the O’Dea brothers.
David Evans’ evidence confirmed that the substantive gifts of farmland remained consistent throughout the time he represented Shirley O’Dea. The O’Dea sisters preferred that the land continue to be farmed if possible. This was reflected in the various wills that he drafted. David Evans explained that the O’Dea sisters had a large number of friends and acquaintances who were religious people. They were concerned that there was not much provision for the old age of such people. David Evans suggested the concept of the “O’Dea Home” as a place to benefit retired clergy in the event the Church was not able to farm the land. The O’Dea sisters were happy with that suggestion, and David Evans drafted clauses accordingly. These were replicated in subsequent wills prepared by David Evans.
David Evans also gave evidence about the first time a gift of land featured Jim McInerney. He received instructions from Shirley O’Dea that Jim McInerney was to have the first option to farm the land for the Church. This was in a will dated 28 November 2014[34], which contained the usual gift of sections 405, 480 and 270 to the Catholic Parish that incorporated Riverton Church but added the following: [35]
…to continue to be farmed if reasonably practicable by James Vincent McInerney or such further or other suitably experienced farmer as my trustees shall determine in their absolute discretion or otherwise to be sold and for the proceeds of such farming or sale to be used to support homes for retried religious persons and in the event of a sale of the said land that any facility built or housing acquired from the proceeds of such sale shall bear the name “O’Dea Home”.
[34] T281 – 283.
[35] Exhibit R2 29 at [4(a)].
David Evans was taken to his file note dated 28 October 2015 which said, “Jim McInerney to have share farming”. The note also referred to “leave with Ian”. This was a reference to Ian Wedding who was then farming Shirley O’Dea’s land under a lease arrangement. David Evans said that this wasn’t something that was to appear in the will, rather it was to do with the current arrangements for the farm, so it wasn’t really relevant to what he was doing.[36]
[36] T282.
Jim McInerney said that in around 2015 Shirley O’Dea told him that she was considering leaving farmland to the Church. Of course, it is clear from David Evans’ evidence that Shirley O’Dea had included that provision in her wills since 2001. Jim McInerney says that he told Shirley O’Dea that it was a matter for her what she did in her will but if she wanted to leave land to the Church that it would be a great thing to do. Shirley O’Dea raised with him that he could maybe lease farmland from the Church in the future. Jim McInerney said that he did not further those conversations. However, the evidence of Jack O’Dea is that Jim McInerney contacted him by telephone in 2015 and attempted to discuss the topic.
David Evans drafted a further will for Shirley O’Dea in late November 2015. This again contained a reference to Jim McInerney in the context of the gift of land to the Catholic Church. David Evans agreed that, whilst the wording was somewhat different, Shirley O’Dea’s intention was substantially the same as it had been in the 2014 will. This will was not signed. Rather, David Evans provided the draft to Gregory Anderson by way of email when Gregory Anderson took over drafting Shirley O’Dea’s wills.[37]
[37] T283 – 284.
Each will prepared by David Evans contained a gift to “my friends Dr Harold Lane and his wife [Mrs] Peggy Lane”. Phyllis O’Dea’s wills contained a clause in identical terms. David Evans described the use of the expression “my friends” as the form of reference that the O’Dea sisters were most comfortable with. He did not recall any occasion on which Shirley O’Dea said she had misgivings about this gift.[38]
[38] T292.
When Gregory Anderson took over from David Evans as the lawyer responsible for preparing Shirley O’Dea’s wills, similar provisions were set out in the first wills that he prepared. The will dated 1 September 2016, the will incorrectly dated 31 March 2016 but executed on 30 March 2017 and the will of 15 February 2018 had the same gifts of farmland to the Church and to the Lanes. The reference to Jim McInerney in the gift of land to the Church does not appear in any of these wills. Gregory Anderson was not able to explain why this was.
Accordingly, Shirley O’Dea evidenced a long held commitment in each of her wills to make the same gifts of her farmland to the Church and to the Lanes. The substantive change in the testamentary dispositions made by Shirley O’Dea occurred in the December 2018 and January 2019 wills.
Evidence of the Parties
Jack O’Dea – the applicant
Jack O’Dea provided three affidavits dated 17 June 2021, 18 July 2023 and 3 October 2023.[39] He also gave evidence in a careful, coherent and forthright manner. I accept his evidence. Jack O’Dea could be described as a disinterested party in the sense that his entitlement does not change, and he does not take any fixed position concerning which will ought to be admitted to probate.
[39] Exhibit A 6; Exhibit A 7; Exhibit A 8.
Jack O’Dea’s father was a second cousin of Shirley O’Dea. Jack O’Dea is a retired accountant with a Bachelor of Arts majoring in Economics and a Bachelor of Accounting. He commenced working as an accountant in 1976 and continued until his retirement in June 2018. From around 1990, when he was working in Riverton, he commenced providing accounting services to the O’Dea sisters. Generally, the work was confined to preparing taxation returns for the farming business. Prior to Ms Phyllis O’Dea’s death he dealt mainly with her and thereafter with Shirley O’Dea. The O’Dea sisters kept handwritten records, or cheque summaries, of the cheques they had written through the year. They would forward these cheque summaries to Jack O’Dea together with bank account statements at the end of each financial year. He would then have records of the income and expenses for the farming business which he used to prepare their taxation returns. Shirley O’Dea prepared the cheque summaries after Ms Phyllis O’Dea’s death until September 2017.
Jack O’Dea says that he was contacted by Shirley O’Dea’s solicitor, David Evans, a number of years ago to see if he was prepared to act as Shirley O’Dea’s executor with David Evans. Jack O’Dea agreed. From that time on he assumed he was Shirley O’Dea’s executor but did not know about the contents of her will. He did not see any of Shirley O’Dea’s wills until after her death when Mellor Olsson sent him a copy of the January 2019 will via email on 6 October 2020.
Jack O’Dea was contacted by the nursing home shortly after Shirley O’Dea’s death and told that he would have to clear her possessions out of her room. When he did so he found an envelope in her cupboard that contained all the documents relating to her will that he found in her room. This included:[40]
·The original February 2018 will;
·Copies of wills dated 25 January 2019, 15 February 2018 and 30 March 2016 wills together with covering correspondence and accounts from Mellor Olsson; and
·Unsigned draft wills dated 2017 and 24 November 2015.
[40] Exhibit A 6.
In view of the matters outlined in his affidavit Jack O’Dea was uncertain which of the various wills represented Shirley O’Dea’s last will and testament and accordingly he brought the present application.
Jack O’Dea says that he had limited contact with Shirley O’Dea until about one or two years before he retired in July 2018. He would speak to her on the phone to clarify issues with her tax and would occasionally drop in to see her when he was on his way to visit his mother. In about mid-2016 to mid-2017, Shirley O’Dea commenced ringing him regularly at his office. The frequency of these calls ranged from once or twice a week to sometimes three or four times a day. Sometimes she would ring him on the weekends at home. The calls were partly about financial matters but often they were more general. Jack O’Dea felt that she was lonely and just wanted to talk.
Jack O’Dea continued to assist Shirley O’Dea with her taxation obligations after his retirement.
In September 2017, Shirley O’Dea was 93, and her bookkeeping practices started to decline. She stopped preparing the cheque summaries. Jack O’Dea did not discover this until September 2018. Between October and November 2017, Dr Lane became concerned that Shirley O’Dea was not paying her bills as she had forgotten to pay her car registration. Dr Lane communicated this to Jack O’Dea. Dr Lane set up direct debits for Shirley O’Dea’s electricity, telephone, and water accounts in consultation with Jack O’Dea. Jack O’Dea was not a friend of Dr Lane but knew of him as a friend of Shirley O’Dea.
During cross examination, Jack O’Dea was challenged about the setting up of direct debits in August 2017. It was suggested to him that Shirley O’Dea had set these up. Jack O’Dea denied this saying that Shirley O’Dea would not have known what a direct debit was. This was consistent with the evidence of Dr Lane. I accept Jack O’Dea’s evidence, and that of Dr Lane, about Shirley O’Dea’s lack of understanding of online banking and direct debit arrangements.

On 17 September 2018, Jack O’Dea visited Shirley O’Dea at her Mill Court unit for the purpose of speaking to her about her taxation documentation. He did not specifically recall the sequence of events but thought he did not have the documentation and accordingly contacted Shirley O’Dea to follow it up. He has a contemporaneous note about his visit which is annexed to his second affidavit.[41]
[41] Exhibit A 7.
Shirley O’Dea provided him with the cheque summary. On looking at this, it became clear to Jack O’Dea that Shirley O’Dea had stopped recording cheques after 26 September 2017. Jack O’Dea was surprised because she was “generally diligent and meticulous in preparing these documents”.[42] After that date the handwritten entries on the cheque summary are in Jack O’Dea’s writing. The summaries are exhibited to Jack O’Dea’s second affidavit.[43]
[42] T707.
[43] Exhibit A 7.
Jack O’Dea spoke to Shirley O’Dea about her banking. With her agreement, he set up internet banking so that he could oversee her accounts and make sure they were not overdrawn. He set up more direct debits to ensure her bills were paid. He arranged with the Balaklava ANZ Bank to become an authorised representative on her account. He closed one of Shirley O’Dea’s personal bank accounts so that she only had a business account and one personal account. He spoke to organisations such as the Council, her health insurer Bupa, and Mill Court about setting up direct debits in relation to their accounts. He found some payments to Bupa, had not been made. Direct debits had already been set up for Telstra, AGL and SA Water by Dr Lane.
In his contemporaneous note, Jack O’Dea noted that Shirley O’Dea’s memory was deteriorating. The things that caused him to write this were that she had stopped filling out cheque summaries, she was unable to find her cheque book and recent bank account statements. He also found unopened invoices and bank statements in her unit. There were donations to charities, birthday, and Christmas cards, some with money in them, that had not been sent.
Jack O’Dea said that Shirley O’Dea moved into the Balaklava Mill Court Nursing Home on a respite basis in January 2019. During this period, she retained her retirement village unit. Eventually, in about March 2019 when the respite period ended, Shirley O’Dea decided to move permanently into the nursing home. From his observations it seemed to him that she enjoyed having other people around. She continued to be able to engage in conversation at this point. On a date he cannot remember, he and his partner helped Shirley O’Dea move her smaller possessions from the unit to her nursing home room. Jim McInerney helped dispose of some of the larger items that would not fit in Shirley O’Dea’s nursing home room.[44]
[44] Ibid at [51]-[54].
I accept Jack O’Dea’s evidence that Shirley O’Dea was struggling to utilise her cheque books, to pay her bills and with financial matters in general from mid to late 2017. As a consequence, Jack O’Dea became more involved in Shirley O’Dea’s financial affairs from September 2018. He became the authorised representative on her ANZ bank accounts. In addition, he acted as her next of kin in dealings with Dr Nyoni, Mill Court and the nursing home. He subsequently became her power of attorney and decision maker under an advance care directive signed in January 2019 after Shirley O’Dea moved into the nursing home.
Jim McInerney – the first respondent
Jim McInerney swore affidavits dated 30 March 2022[45], 13 July 2023[46] and 24 September 2023.[47] He also gave evidence.
[45] Exhibit R1 9.
[46] Exhibit R1 10.
[47] Exhibit R1 11.
Jim McInerney says that he shared a strong connection with Shirley O’Dea and a close relationship. He considered her to be family and, from what she said to him, he believes that she felt the same way. Indeed, he gave evidence that Shirley O’Dea said she believed they were distantly related. The McInerney family and the O’Dea family were close-knit families from the same farming area. He did not meet Shirley O’Dea personally until she moved to Hamley Bridge but had always known of her. Jim McInerney first got to know the O’Dea sisters when they lived at Hamley Bridge then Riverton and in later years at Balaklava where Shirley O’Dea lived from approximately 2012 until 2020. He met them through his aunt who was very good friends with the O’Dea sisters.
Shirley O’Dea was a devout Catholic as is Jim McInerney and his immediate family. Shirley O’Dea moved to Riverton from Hamley Bridge in around 1995. They attended the same Church. For many years he was a committee member and president of the Riverton Parish Pastoral Council and his relationship with Shirley O’Dea became much closer through that connection. They regularly shared cups of tea and coffee and occasional lunches and would have general discussions about friends and family.
When Shirley O’Dea moved to Balaklava, he says that he visited her regularly on average once or twice each month and talked on the telephone often a couple of times a week. The second and third respondent challenged this evidence saying that the subpoenaed telephone records did not support that level of contact by telephone, at least in early 2018. Jim McInerney initially he said that this frequency of calls occurred during 2018 apart from March and April when he and his wife were at the Commonwealth Games. Jim McInerney ultimately conceded that the telephone records show no telephone conversations with Shirley O’Dea between 1 January 2018 and 22 June 2018, whereas the records after that date show 94 telephone calls from 24 July 2018 to 3 January 2019.[48] The second and third respondent contend that the reasons for the calls in the latter half of 2018 were principally related to the wills.
[48] T81.
Jim McInerney also conceded in cross-examination that he did not visit as often as once or twice a month in 2018. He and his wife were interstate in March and April and his calendar for the 2018 financial year only recorded one visit on 22 June 2018 although I accept that there were likely other visits that were not recorded.
Jim McInerney said that Shirley O’Dea was capable of living and managing daily tasks and she was also very capable of managing her own financial affairs. He described her as an independent, strong-minded person with a dry sense of humour.
The balance of Jim McInerney’s evidence is contentious and goes to the heart of the issues in dispute. I will deal with it in context. I accept his evidence about his relationship with Shirley O’Dea as outlined above but consider that he overstated the frequency of his contact with Shirley O’Dea at least in the first half of 2018. I do not accept his evidence about Shirley O’Dea’s capabilities concerning financial matters after late 2017. I prefer the evidence of Jack O’Dea on that topic. I also consider that Jim McInerney minimised Shirley O’Dea’s deteriorating state of health, both physical and mental, from at least October 2018 when she was under the care of community health nurses for reasons that will be apparent from the medical evidence.
Jim McInerney harbours animosity towards Jack O’Dea for bringing these proceedings. This coloured aspects of his evidence particularly in relation to his evidence about telephone conversations he initiated with Jack O’Dea. Jim McInerney was furthermore argumentative and appeared to tailor his responses to suit his own purposes. I formed the view that much of his evidence was self-serving and that his evidence on matters of significance to these proceedings was unreliable at best and untruthful at worst. He frequently contradicted evidence that he had given earlier. Examples of this will be outlined in these reasons dealing with the events in the second half of 2018 and January 2019. I am only prepared to only accept his evidence as to those events where it is reliably corroborated or otherwise uncontroversial.
Dr Harold Lane – the third respondent
Dr Lane, a medical practitioner, was born in 1936 and is currently 87 years old. His wife, Peggy Lane, died on 3 August 2019. He swore an affidavit on 14 August 2023[49] and also gave oral evidence. Dr Lane gave his evidence in a clear, open, and cogent manner. He was not shaken in cross-examination. I have no hesitation in accepting his evidence.
[49] Exhibit R3 94.
Dr Lane met Shirley O’Dea in 1963 as a patient when he purchased the Wakefield Plains Medical Clinic at Balaklava. Shirley O’Dea remained his patient for the next 44 years. He treated both Shirley O’Dea’s parents until their deaths. Shirley O’Dea suffered severe chronic hypertension and visited Dr Lane regularly every six to eight weeks at his branch in Owen. Peggy Lane, worked with Dr Lane at his medical practice. Phyllis O’Dea was not a patient of Dr Lane but on nearly every occasion Shirley O’Dea visited Dr Lane she was accompanied by her sister Phyllis O’Dea. The Lanes were occasionally invited to join the O’Dea family at their home at Hamley Bridge for parties and cups of tea.
Dr Lane became heavily involved in the Balaklava Racing Club from 1965 initially as the honorary surgeon and subsequently as a committee member. Through this association with the racing club the Lanes spent a lot of time with the O’Dea sisters. Both the O’Dea sisters were passionate about horse racing. They sponsored an annual horse race in the name of the O’Dea family for more than 24 years.
In the late 1980’s the O’Dea sisters became particularly friendly with Peggy Lane. Their friendship remained strong. Peggy Lane spent time with the O’Dea sisters and occasionally Dr Lane also attended. On a date that Dr Lane does not precisely recall, but about which he has a very clear recollection, the O’Dea sisters approached him and his wife at the end of a consulting session at the Owen Clinic. On this occasion, in the presence of Shirley O’Dea, Phyllis O’Dea said words to the effect of “we would like to include you and Peg[gy]in our wills”. Dr Lane had never previously discussed with either of the O’Dea sisters anything relating to their wills. Their statement on this occasion was unprompted and unexpected. Dr Lane said that he had no reason to suspect that either of the O’Dea sisters were considering making a gift to him and his wife and the suggestion came out of the blue. On a subsequent occasion at their Riverton home, Phyllis O’Dea, in the company of Shirley O’Dea, asked them words to the effect “would you like us to leave you land or money”, and “if you would prefer land which piece of land would you like” and “would you like the one that Peg[gy] loves”. Dr Lane responded by saying words to the effect “it’s your land and money and the decision is yours, not ours”.
On other occasions Shirley O’Dea told the Lanes, that she and Phyllis O’Dea were leaving farmland to the Church. Other than this, there were no subsequent discissions between Dr Lane and, to the best of his knowledge, his late wife with either of the O’Dea sisters about their wills. At no time, despite regular communications both before and after December 2018, did Shirley O’Dea ever convey to the Lanes that she intended to change the gift about which she had spoken to them about many years earlier.
Jim McInerney gave evidence, both in his affidavits and orally, that Shirley O’Dea told him that Dr Lane had asked her if she could leave him “a little bit of land”, and that she felt uncomfortable about this but did not feel she could go back on her word.[50] This was put to Dr Lane who denied it emphatically.[51] I accept Dr Lane’s evidence. His evidence was compelling and unshaken by cross-examination. It is supported by the evidence of David Evans that at no time whilst he was preparing her wills did Shirley O’Dea express any misgivings about her decision to leave allotment 407 to the Lanes and that she referred to them as her friends. Jim McInerney’s evidence further does not sit comfortably with the evidence that Phyllis O’Dea’s wills contained a similar provision. I will deal with Gregory Anderson’s evidence on this topic in the context of the changed instructions. I reject however any suggestion that the gift of land to the Lanes in the earlier wills was prompted by Dr Lane rather I accept his evidence that the suggestion was unexpected and was made by Phyllis O’Dea in the presence of Shirley O’Dea.
[50] Exhibit R1 10 at [3.2].
[51] T893-894.
The Lanes moved to Adelaide in September 2017 but remained in regular contact with Shirley O’Dea. In particular, Dr Lane always called on her when he attended meetings at the Balaklava Racing Club which he continued to do as a committee member or when he visited his son who lives with his family near Balaklava. Peggy Lane and Shirley O’Dea spoke at length on the telephone at least once every week prior to Peggy Lane’s death in August 2019. Dr Lane attended Shirley O’Dea’s 90^th birthday party. Photographs of them together were tendered.[52] He maintained contact with Shirley O’Dea until her death.
[52] Exhibit R2 112.
Shirley O’Dea according to her friends and acquaintances
Jim McInerney called a number of lay witnesses who were friends or acquaintances of Shirley O’Dea.
Jim McInerney was cross-examined about the witnesses that he had spoken to. He said that he spoke to everybody on the visitor’s list at the nursing home in relation to these proceedings. He denied saying that the Church was trying to take away his land but said he gave a “A very, very brief history of what’s happened”[53] and that he would ask them how they saw Shirley O’Dea’s state of mind before he did so. He said that in his opinion he found Shirley O’Dea fine but did not put words into their mouths.
[53] T75.
I reject the Church’s submission that these witnesses were not independent because they were approached by Jim McInerney for “support” and because of his conversations with them. There are some exceptions which I will deal with in context. I accept that Jim McInerney’s involvement with various lay witnesses, as he described it, was undesirable. Nonetheless, it is my view that, however they came to be involved in these proceedings, generally speaking these witnesses were doing their best to assist the Court. Apart from where I indicate otherwise, I do not have any reservations about their evidence. However, in the main these witnesses, in common with lay witnesses called by the Church, gave very general and often vague evidence about Shirley O’Dea’s day to day functioning that does not greatly assist with an assessment of her testamentary capacity at critical times. I also note the caution sounded by the NSW Court of Appeal in Craig-Bridges v NSW Trustee and Guardian:[54]
It is one thing for a person to convey the appearance of full cognitive competence in ordinary conversations; it is another for the person to have testamentary capacity.
[54] [2017] NSWCA 197 at [158].
Mark Vincent McInerney
Mark McInerney is the son of the first respondent. He gave evidence by way of affidavit sworn on 13 June 2023[55] and oral evidence. Mark McInerney gave his recollection of somewhat limited dealings with Shirley O’Dea at various Church events. He assisted Shirley O’Dea’s permanent move into the nursing home in March 2019 with his parents and John Robbins. He gave evidence of a conversation concerning his children and their love of farming with Shirley O’Dea in November 2019 at the All Souls’ Day Service.[56] In cross examination he was less certain that the conversation happened during the 2019 service conceding that it may have been earlier.[57]
[55] Exhibit A 33.
[56] Exhibit R1 33 at [3]-[4].
[57] T308-309.
Margaret Kaye McInerney
Margaret McInerney is Jim McInerney’s wife. She gave evidence by way of an affidavit sworn on 13 July 2023.[58] She was not cross-examined. She came to know Shirley O’Dea by having general conversations after Church each week at Riverton. Shirley O’Dea attended at their farm for lunch on 26 December 2018. She and her husband assisted Shirley O’Dea in early 2019 to move into the nursing home. She visited Shirley O’Dea three to four times a year when she was in the nursing home. Shirley O’Dea rang frequently to chat. I note however that this could not have occurred in the first six months of 2018, in light of the Telstra records.[59] Shirley O’Dea participated in a Mass held at the Navan Cemetery each year in November. The last time she saw Shirley O’Dea was on 3 March 2020.
[58] Exhibit R1 32.
[59] Exhibit R2 14.
Annette Elizabeth Barker
Annette Barker was a friend of Shirley O’Dea. She swore an affidavit on 14 July 2023[60] and she gave oral evidence. Annette Barker was the witness to Shirley O’Dea’s will dated 30 March 2016. She had no independent recollection of the date but recalled witnessing a will at Shirley O’Dea’s request.
[60] Exhibit R1 35.
Annette Barker did not know Jim McInerney prior to these proceedings but gave evidence of him contacting her about this case. She did not recall Jim McInerney visiting Shirley O’Dea at the unit or the nursing home but did recall Shirley O’Dea speaking fondly of both Jim McInerney and Ian Wedding. She said in cross-examination that during the last six months of 2018 Shirley O’Dea was a bit forgetful and a little bit vague and confused.[61]
[61] T351.
Michael John Schilling
Michael Schilling provided an affidavit sworn on 11 July 2023[62] and also gave oral evidence. His evidence relates mainly to Shirley O’Dea’s general demeanour and conduct. He had known Shirley O’Dea since around 2012 when she moved to Balaklava and attended the Balaklava Catholic Church. She was a devout Catholic until she passed away.
[62] Exhibit R1 37.
Michael Schilling’s conversations with Shirley O’Dea were generally about people she knew and her life on the farm. He considered her to be a private person who was polite and thoughtful. Shirley O’Dea talked about Jim McInerney and his family. She also talked all the time about Dr Lane, the Robbins, and the O’Dea’s. She spoke fondly about everyone.[63]
[63] T377-378.
Shirley O’Dea sold her car after she surrendered her licence in 2015. She purchased a gopher. She had problems with her eyesight. Michael Schilling saw Shirley O’Dea apparently writing cheques when she lived in her unit. He was unclear precisely when that was – he did not see her doing that in the nursing home.[64] Michael Schilling said that on one occasion Shirley O’Dea told him she had been fined for not paying her car registration. She was quite upset about it because she thought she had paid.[65] He described Shirley O’Dea as “pretty focussed and on the ball” and gave an example of the occasion she sold her car.[66] This, of course, occurred in 2015.
[64] T362.
[65] T382.
[66] T383.
Michael Schilling also gave evidence of Jim McInerney calling him twice approximately around February 2023 and speaking to him about this matter in some detail.[67] Whilst I accept that Michael Schilling was doing his best to assist the court notwithstanding Jim McInerney’s involvement, I cannot exclude the possibility that some of his evidence was affected by those discussions. Accordingly, I treat his evidence with some caution. In any event, Michael Schilling’s evidence was helpful but not strictly relevant to the matters in dispute given his inability to be more specific about the timing of his various observations.
[67] T379-380.
Father Brian Joseph Ahern
Father Ahern swore an affidavit on 12 July 2023[68] and also gave oral evidence.
[68] Exhibit R1 38.
Father Ahern met Shirley O’Dea in 2014 whilst saying Mass at the Balaklava Catholic Church. She was a devout Catholic. She never spoke to him about abuse of children within the Church. She was happy for her land to be used by the Catholic Church for a youth camp. Shirley O’Dea spoke highly of Dr Nyoni and his wife. She also spoke to him about parishioners they both knew, occasions she attended the Balaklava races and other general topics.

Father Ahern said that he had a conversation with Shirley O’Dea on 3 September 2017 during which she told him she was leaving half her land to the Catholic Church and half to a relative. She again spoke to him in 2018 saying that she was leaving land to the Catholic Church. He could not be certain when this was but thought it was within six months or so of the earlier conversation on 3 September 2017.[69]
[69] Exhibit R1 38; T393-395.
Rosemary Kathleen Galton
Rosemary Galton’s evidence-in-chief was largely given via affidavit sworn on 19 July 2023[70]. Rosemary Galton was the sister of the late Father Hay and a good friend of Shirley O’Dea. She was the decision maker under an advanced care directive signed by Shirley O’Dea in March 2017. Jack O’Dea was the substitute if she was unable or unwilling to act. She was uncomfortable about this as she was not a blood relation. Shirley O’Dea brushed away her concerns and so Ms Galton reluctantly agreed. In late 2018 or early 2019 she again raised her concerns with Shirley O’Dea and with Jack O’Dea. Accordingly, the new advanced care directive was signed in January 2019 reversing their roles.
[70] Exhibit R1 39.
The balance of Rosemary Galton’s evidence related to her longstanding friendship with Shirley O’Dea. She described her as being “consistently the same Shirley I had known”[71] until after COVID restrictions were lifted at the nursing home midway through 2020. In cross-examination however whilst she said initially that she could not recall Shirley O’Dea being forgetful prior to this and that she seemed the same all along, Rosemary Galton then conceded that she could not be 100 per cent sure about this.[72]
[71] Exhibit R1 39 at [32].
[72] T414-415.
The second respondent contends that Rosemary Galton was an unreliable witness because she denied that Jim McInerney had asked her to swear an affidavit in these proceedings whereas Jim McInerney gave evidence that he had. My view, however, is that her evidence was reliable but largely unhelpful in relation to the issue of Shirley O’Dea’s testamentary capacity at relevant times.
Kirsty Corinne Ingram
Kirsty Ingram met Shirley O’Dea through the Catholic Church. She assisted Shirley O’Dea with cleaning and Meals on Wheels when Shirley O’Dea was living in her Mill Court unit. Kirsty Ingram swore two affidavits prepared by Jim McInerney’s solicitors[73] and also gave evidence.
[73] Exhibit R1 40; Exhibit R1 41.
Prior to swearing her first affidavit, Kirsty Ingram gave a statement to the solicitors for Jack O’Dea in his capacity as executor.[74] Following this she was contacted by the solicitors for the Church and provided them with information and was to be provided a draft affidavit in due course. Before the solicitors drafted the affidavit, Jim McInerney visited Kirsty Ingram out of the blue. She had not met him before this. Jim McInerney explained “what was going on” and that the Church “was fighting Shirley’s last will”. He explained to her “how Shirley’s will was made”. Ms Ingram agreed that Jim McInerney appeared “pretty cross” with the Church for contesting it.[75] Ms Ingram swore an affidavit prepared by Jim McInerney’s solicitors on 11 July 2023. A draft affidavit was sent to her by the Church’s solicitors via email on the same day,11 July 2023. Kirsty Ingram replied to the Church’s solicitors email the following day saying that she was not prepared to sign it and that she did not approve of the Church challenging Shirley O’Dea’s last will.[76]
[74] Exhibit R2 43.
[75] T425.
[76] Exhibit R2 42.
Ms Ingram agreed that she spoke to the Church’s solicitor and agreed to swear an affidavit but changed her mind after speaking to Jim McInerney.
Amongst other things, Kirsty Ingram’s first affidavit contained the following:[77]
I never observed any issues with Shirley in relation to her memory or being disoriented or forgetful and so did not write anything down for her.
[77] Exhibit R1 40 at [17].
This is inconsistent with the statement Kirsty Ingram provided to Jack O’Dea’s solicitor some two years earlier. When shown that statement[78] Kirsty Ingram said that it refreshed her memory about things she knew about Shirley O’Dea. This document was the reason she swore her second affidavit on 3 October 2023. In that affidavit, Kirsty Ingram amended her first affidavit, inter alia, as follows:[79]
At paragraph 17, where I said I never observed any issues as to Shirley’s memory, I now say that there were some instances that I now recall when she was becoming slightly forgetful. It is still correct to say that I have never seen her to be disoriented. I say that at times she was forgetful such as putting items in different spots and not recalling where, but that may also be a normal observation from the natural progression of old age. … Shirley still remembered names right up to the very end and held conversations with me.
[78] Exhibit R2 43.
[79] Exhibit R1 41 at [7(b)].
Under cross-examination Kirsty Ingram was taken through each paragraph of the statement she provided to Jack O’Dea’s solicitors. She confirmed its accuracy.[80] Specifically she confirmed that she commenced dusting Shirley O’Dea’s unit about two years prior to her move into the nursing home. She said that, in the six to 12 months before Shirley O’Dea moved into the nursing home, she made observations of unusual things starting to happen including a saucepan which had been burnt, mice droppings in her cupboards, food going out of date or stale, and that Shirley O’Dea’s cleaning up was not as good as it had been. Kirsty Ingram also confirmed that things were disappearing. For example, one day Shirley O’Dea lost the dustpan and on another she lost the washing machine powder. Kirsty Ingram thought that Shirley O’Dea was moving things and not remembering where she had put them.
[80] T437-451.
Kirsty Ingram’s evidence about why she swore the first affidavit when she now accepts it was untrue in parts was unconvincing and implausible.[81] I consider it probable that it was informed by what she had been told by Jim McInerney. In the light of this I accept Kirsty Ingram’s oral evidence confirming the contents of the statement she provided to Jack O’Dea’s solicitors, and I reject the evidence in her first and second affidavits insofar as it is contradicted by the statement or oral evidence.
[81] T434-436.
Cathryn Mary Blackwell
Cathryn Blackwell swore an affidavit on 14 July 2023[82] and gave careful and considered evidence as a friend of Shirley O’Dea for over 50 years. She started driving Shirley O’Dea to appointments as early as mid-2013 but more regularly after Shirley O’Dea stopped driving and sold her car. Cathryn Blackwell visited Shirley O’Dea often and gave evidence of attending her 90^th birthday party. Shirley O’Dea had asked her to help to arrange and manage her funeral. Shirley O’Dea provided her with a list of people including the Priest she wanted to conduct her funeral service and a list of the hymns she wanted at her funeral. It is not clear from her evidence why the funeral was arranged primarily by Jim McInerney. The first time Cathryn Blackwell met Jim McInerney was at Shirley O’Dea’s funeral.
[82] Exhibit R1 44.
Christian Charles Hudson
Christian Hudson was the maintenance officer at Mill Court from 2011 to May 2020. He provided an affidavit sworn on 16 July 2023[83] and gave evidence.[84] He helped Shirley O’Dea with various maintenance tasks associated with her unit from April 2014, when she moved in. He described her as being “with it” and mentally very good. She seemed the same to him throughout his contact with her until the day he left in May 2020. Shirley O’Dea was able to speak to him about his work, local events such horse racing, Ian Wedding, general farming and mutual acquaintances but he did not give evidence of more complex interactions.
[83] Exhibit R1 49.
[84] T497-499.
John Beeton Robbins
John Robbins was a long-term friend of Shirley O’Dea having known her for 66 years. He described his friendship with Shirley O’Dea and her sisters as being like brothers and sisters. He had regular contact with Shirley O’Dea both in person and on the phone. He had discussions with her about the farm, mutual acquaintances and things that were worrying her. He mentioned the damage and disruption caused by the Pinery Bushfires in 2015 as one topic of concern.
He helped Shirley O’Dea move into the nursing home in January 2019 and described Shirley O’Dea as “directing us with the skill of a movie director”.[85] I suspect that John Robbins has mistaken the date as the other evidence suggests that he and the McInerney family assisted Shirley O’Dea with her permanent move to the nursing home in March 2019. In any event John Robbins said that Shirley O’Dea was very close with the McInerney family after the O’Dea sisters moved to Riverton. Jim McInerney would often visit and pray with her right up until the end. I have no reason to doubt any of that evidence.
[85] T506.
There were, however, aspects of John Robbins’ evidence that were difficult to reconcile with other evidence that I accept. For example, he said Shirley O’Dea, and apparently her sister Phyllis O’Dea, made statements to him regarding their concern about land being left to the Church and then being sold to “pay for somebody else’s indiscretions”.[86] He was somewhat unclear as to when this was saying it was in 1993 and/or 1999.[87] He also made reference to discussions of the same topic in 1995.[88] John Robbins’ evidence was to the effect that, after the topic first arose in the 1990’s, the O’Dea sisters continued to make statements of that type. This does not sit comfortably with the fact that, in 2001, both sisters included a gift of land to the Church for the first time. Thereafter both sisters, continued to make wills benefiting the Church. Shirley O’Dea continued this after Phyllis’ death until February 2018. They did not express any similar concerns to David Evans, their solicitor at the time. John Robbins further said that the statements continued into 2019 after Shirley O’Dea had moved into the nursing home and after Shirley O’Dea had changed her will to exclude the Church.[89]
[86] T510.
[87] T510; T518.
[88] T517-518.
[89] T522-523.
John Robbins was unable to give any particulars or specifics as to the complaints other than saying Shirley O’Dea was “devastated” by the ordination of Father Fleming because it was “unsettling for the priests to have a married priest come into the fold.”[90] In cross examination he conceded that this conversation had nothing to do with her will[91] and that the ordination occurred in 1995. He then said:[92]
Wasn’t until later that she said that it was the problem was too big. It was disgraceful. It was something that she found abhorrent and she was left with the dilemma that as properties were being sold off to compensate the indiscretions of those that had perpetrated in paedophilia or sexual abuse that she didn’t want to leave her land to and that was the first time she had spoken about any of the bequest to an organisation or to an individual person, that she didn’t want her land to be sold and for her ‘life to amount to nothing’ was her words but she would have preferred that it go on for perpetuity and she had felt in the beginning when she may, or the girls themselves collectively may have made a decision as to what to do with Humphry Springs, their farm that the Church seemed to be a lot more stable.
[90] T511.
[91] T517-518.
[92] T518.
Whilst not clearly expressed it seems that John Robbins was suggesting that Shirley O’Dea informed him at some point after 1995 that she was leaving her farm to the Church and that she was concerned that it would be sold to pay compensation to victims of sexual abuse. The timing of this conversation is most unclear. John Robbins said that they again discussed Father Fleming in about 1999 when Father Fleming was asked to stop saying mass. He further said that Shirley O’Dea “just shook her head in absolute horror”[93] when Bishop Wilson was arraigned but was not able to say when that was. Again, I note that the first gift of land to the Church did not occur until 2001 and that such a gift continued to be included in Shirley O’Dea’s wills until December 2018.
[93] T518.
John Robbins was aware that the O’Dea sisters were concerned about what happened to priests upon their retirement. He had heard of the O’Dea Home concept but did not know that the O’Dea sister’s wills contained a clause that, if the farmland was to be sold, the money was to be used for that purpose.[94] They never spoke about the terms of their wills, and he did not ask about them as he did not think it was his affair.
[94] T519–520.
John Robbins’ evidence as to precisely what was said and when was somewhat unclear however he maintained that Shirley O’Dea was concerned that if she was to leave land to the Church it might be sold to pay for other people’s indiscretions from 2009 continuing into 2019 after she moved into the nursing home.[95] He did not know she that she had apparently made a different will which left no land to the Church by 2019.
[95] T522.
Whilst I accept that Shirley O’Dea may have spoken to John Robbins about allegations concerning sexual abuse within the Church, I do not accept that it occurred as frequently, or over such a long period, as he suggests. Further, I do not consider that his evidence on this topic supports the contention that this issue caused Shirley O’Dea to reconsider her will given the lack of certainty over the dates of such discussions and the evidence that Shirley O’Dea appears to have retained great respect for the Church.
John Robbins also gave evidence that he saw Shirley O’Dea continuing to keep records of receipts for tax purposes in 2019 after she had moved into the nursing home.[96] He saw her with a pile of papers apparently writing numbers in an exercise book both in her unit and in the nursing home. She told him that she had to prepare these for Jack. John Robbins said that he did not want to be nosey and did not look but assumed that this was information for Shirley O’Dea’s tax returns. I do not accept that this was the case. I prefer the evidence of Jack O’Dea who said that this practice ceased in September 2017 and that he took over all Shirley O’Dea’s financial records in about September 2018. This is corroborated by the cheque summary.[97]
[96] T503; T514.
[97] Exhibit R2 79; Exhibit R2 77.
A bundle of quote books was tendered in evidence.[98] These were not shown to John Robbins and so I do not know if any of these are the books he was referring to. In any event, it is apparent from a perusal of that exhibit that they are largely unconnected with financial or taxation matters. The only apparent calculations appear to have been made in February 2016 after the Pinery Bush Fires. The writing in the books is also consistent with evidence about Shirley O’Dea’s deteriorating eyesight.
[98] Exhibit R1 76.
Lorena Torres
Lorena Torres provided an affidavit sworn on 8 October 2023[99] and also gave evidence.[100] She met Shirley O’Dea whilst they both attended Sunday mass at the Balaklava Catholic Church in about 2016. She often visited Shirley O’Dea at her unit at Mill Court. She also visited Shirley O’Dea regularly when she moved into the nursing home. Lorena Torres was a church volunteer who used to give Shirley O’Dea and two others holy communion.
[99] Exhibit R1 61.
[100] T665-673.
Lorena Torres’s evidence was clear and compelling. She was friendly with Shirley O’Dea and saw her often. Her observations dealt with general topics such as her discussions with Shirley O’Dea about her life, her family, her friends. Shirley O’Dea spoke highly of all her friends including Dr Lane, Dr Nyoni and Jim McInerney. She told Lorena Torres that the Lanes were good and close friends. She gave evidence of Shirley O’Dea’s devotion to the Catholic Church.
Father Sexton
Father Sexton gave general evidence about his dealings with Shirley O’Dea by way of affidavit sworn 18 September 2023.[101] His evidence was not challenged. He first met Shirley O’Dea in 2007 when he started attending Church meetings in Riverton. He then got to know her as a member of the Balaklava Parish from about 2011. After Shirley O’Dea moved into her unit at Mill Court in about May 2014, he continued to see her at Church or when he visited her at her unit give take communion. From about 2016, Shirley O’Dea would forget what she had said in conversations with him and often repeated the same stories. He also noted that her unit was not as well kept as before with dishes in the sink.
[101] Exhibit R2 80.
Shirley O’Dea generally wanted to talk about the Church or horse racing with him. She never discussed allegations of sexual abuse within the Catholic Church with him. She spoke in a way that conveyed great respect for the clergy. He considered that she was a devout catholic.
Father Boog
Father Boog gave unchallenged evidence by affidavit sworn 8 September 2023.[102] He had known the O’Dea sisters since 2001. They were both very devout. He kept in contact after he left Balaklava at the end of 2008. He used to attend the races with Shirley O’Dea, and he often saw her in company with the Lanes. He was aware that Shirley O’Dea considered them to be her best friends. He had discussions with both the O’Dea sisters about allegations of sexual abuse within the Church. After Phyllis O’Dea’s death, he spoke to Shirley O’Dea on this topic. Neither said anything to suggest they had changed their views of the Church or the clergy. To his observation Shirley remained dedicated to the Church.
[102] Exhibit R2 81.
Father Thoroughgood
Father Thoroughgood swore an affidavit dated 6 September 2023.[103] He was not cross-examined. He first met the O’Dea sisters when they were his parishioners in Hamley Bridge. He remained in contact with Shirley O’Dea thereafter, mostly by telephone, until about late 2017 or early 2018. She also stopped sending Christmas cards to him in either 2017 or 2018. Shirley O’Dea spoke of the Church as the focal point of her life. He never heard her make negative remarks about the Church.
[103] Exhibit R2 82.
Maureen Roberts
Maureen Roberts’ affidavit of 13 July 2023 was admitted under s 34C of the Evidence Act (SA) 1929.[104] The evidence is of limited relevance. She was an employee of Country Home Services who helped Shirley O’Dea by driving her to the shops and to appointments from 2018 until her death. Her conversations with Shirley O’Dea related to what she was shopping for, her time on the farm and the time she used to do sewing.
[104] Exhibit R1 114.
Ian Wedding
Ian Wedding swore an affidavit on 10 August 2023[105] and also gave evidence.[106] Ian Wedding grew up on a farm neighbouring the O’Dea farm. The O’Dea farm was share farmed by Peter Smyth for some years. Peter Smyth stopped this in late 1994. On 6 February 1995, at the invitation of the O’Dea sisters, Ian Wedding and his wife entered into a share farming agreement with the O’Dea sisters in relation to lots 407, 405 and 480. That agreement was reviewed and renewed every year until Phyllis O’Dea’s death in 2009. After that time, the agreement changed to a lease agreement which was also reviewed and agreed yearly. Jack O’Dea contacted him about this saying it would be easier for Shirley O’Dea to manage than a share farming arrangement. In late 2018, Jim McInerney approached Ian Wedding about share farming Shirley O’Dea’s land. Ian Wedding declined that offer.
[105] Exhibit R2 92.
[106] T814-849.
Ian Wedding and his family had a positive and close relationship with Shirley O’Dea. He observed that she was a devout Catholic and that she also had a passion for horse racing. She had slowed down somewhat when she moved into the unit at Mill Court in 2014; she had trouble with her eyes and stopped driving. Over time he noted that the unit was getting messier, and that paperwork was piling up on the dining table. In 2018 he noted dirty dishes left out in the kitchen and pots and pans in the sink. He continued to visit Shirley O’Dea regularly when she moved into the nursing home until her death.
Anthony O’Dea

Jim McInerney said that this was five years ago and that it was hard to recall details. I accept that this is so, however, he gave positive evidence about a number of issues but then revised his position when other evidence suggested he was incorrect. For example, in relation to the dating of this will both, Molly Smallacombe and Maureen Pisano said that the date was not in their handwriting. The date is written in blue ink when their signatures are in black ink. Jim McInerney said it was not in Shirley O’Dea’s writing albeit her signature was in blue ink. It became apparent to him that he would have to admit it was his writing. Despite claiming not to have a memory of this due to the effluxion of time, he then went on to give quite specific and definite evidence about the time at which he wrote the date. This evidence, at best, was reconstruction.
On any view, the evidence is that Shirley O’Dea did not read the document at the time it was signed. The fact that it was stamped “draft”, which no one noticed, supports the conclusion that this was the case.
Why was the will executed a second time?
The will signed on 25 January 2019 was identical in terms to the will signed on 26 December 2018. Jim McInerney was the only witness who gave evidence about the reasons for this.
In examination-in-chief, Jim McInerney said that Shirley O’Dea contacted him about a fortnight after the will was executed to advise him that she had been told by management that it was against the policy of the facility to have its staff witness documents. She told him that the will would need to be re-witnessed by alternate witnesses and she requested his assistance with that.[282] He did not mention either in his oral evidence-in-chief or his affidavits that there was any concern about the draft stamp on the December will.
[282] T55.
In cross-examination Jim McInerney said that the December will was “deemed to be invalid” because management of the nursing home were very upset about two members of the staff signing it and they said that it would have to be re-witnessed.[283]
[283] T175.
Jim McInerney said that Shirley O’Dea had another copy of the will that Gregory Anderson had left with her. She asked Jim McInerney to help to get that executed. As indicated above, Jim McInerney gave evidence that he did not see that the December will had a draft stamp on it at the time it was executed. He then gave evidence as follows:[284]
[284] T179.
QWhen do you say you first saw it stamped with the word 'Draft'.
ABecause I was told that the will was invalid for two reasons. It was stamped 'Draft', and the witnesses were from the home which were deemed improper, that it was not - the home were very unhappy about people from the home witnessing the signature. That happened to be Boxing Day, 26 December. I thought Shirley wanted it signed that day. Where am I going to get witnesses on Boxing Day, a public holiday, and it's right adjacent to where she was living, so I immediately ... the nursing home.
QSo you now say someone told you that the will was invalid because it was stamped 'Draft'.
AThat's the message that Shirley relayed to me. I did not know until somewhere - probably around the middle of January 2019.
QSo you now say that Shirley told you that the will had to be signed again -
AIt did.
Q- because it was stamped 'Draft', and management had told her that they didn't want to be witnesses.
AExactly.
QAnd you would accept that during the course of these proceedings, all your affidavits, all your evidence yesterday and all your evidence today, you have never said that Shirley told you the will needed to be re- executed because it was stamped 'Draft' -
AI think you will find -
Q- until one minute ago.
AI think - sorry for interjecting - I think you will find that in an affidavit.
QAnd it's your case then that you didn't see it was stamped 'Draft' until Shirley told you that sometime in early January.
AShe told me that. And if I was so anxious for Shirley to have it signed, why would I have waited until 25 January?
I do not accept Jim McInerney’s evidence that Shirley O’Dea said that the nursing home raised an issue with the will being signed by nursing home staff. Gregory Anderson gave evidence that he arranged for a member of the nursing home staff, Rebecca Hudson, to sign an earlier will on 1 September 2016, without Rebecca Hudson raising any concerns on behalf of herself or the nursing home.[285] Rebecca Hudson was a senior member of nursing staff who would not have allowed herself to be placed in a position by witnessing and signing a will which was contrary to the policy or practice of the nursing home. Further, neither Molly Smallacombe nor Maureen Pisano gave evidence of this being an issue. I consider it more likely that Jim McInerney noticed at some point that the December 2018 will had a draft stamp on it and that was the reason he arranged for the re-execution of the will.
[285] Exhibit R2 30 at 275; T568.
25 January 2019 will
Jim McInerney said that he visited Shirley O’Dea on 25 January 2019 and that he arranged for Raymond McCracken and Rebecca Durdin to walk from the motor vehicle dealership to the nursing home to witness the signing of the will on 25 January 2019.
Raymond McCracken gave oral evidence and swore two affidavits[286] related to the circumstances in which Jim McInerney arranged him to witness the signature of Shirley O’Dea on a will on 25 January 2019. I have no reason to doubt his evidence. Jim McInerney attended at his business McCracken Ford and asked if he could go to Mill Court Nursing Home to witness will. He suggested that his employee, Rebecca Durdin could be another witness. The three of them walked to the nursing home which was nearby. The signing took place in a common lounge room. Raymond McCracken had known Shirley O’Dea for about 15 years. He had a brief conversation with Shirley O’Dea who recognised him. She appeared the same as usual.
[286] Exhibit R1 16; Exhibit R1 17.
Rebecca Durdin gave oral evidence and provided two affidavits[287] related to the circumstances in which Jim McInerney arranged for the signature of Shirley O’Dea’s will. Again, I have no reason to doubt her evidence. She did not know Shirley O’Dea but Shirley O’Dea knew her grandparents, so she chatted to Shirley O’Dea about her grandparents – she recounted that it appeared Shirley O’Dea knew what was happening.
[287] Exhibit R1 18; Exhibit R1 19.
Both Raymond McCracken and Rebecca Durdin confirmed that Shirley O’Dea did not read the will in their presence nor was it read over to her. Neither could recall whether handwritten amendments to that will had been made at the time they witnessed it.[288]
[288] T142.
Raymond McCracken described the will signing process as: [289]
well Shirley signed it and then we – the will was put in front of us. The will was never read out to us, we just had to sign - Jim showed me how to sign – where to sign. And then we had to sign each page.
[289] T130.
Rebecca Durdin said:[290]
we just sat down at a table, I think it was only like a small sort of coffee table type thing and signed the will.
[290] T139.
Rebecca Durdin confirmed that the document was not read by or to Shirley O’Dea. She recalled the pages were just flipped.[291] Rebecca Durdin said that after everybody signed it “we went back to work”.[292] She could not remember anything about any writing in the will.
[291] T144.
[292] T139; T142.
Jim McInerney said that he did not look at the document in any detail before it was signed, but merely turned the pages as it was being signed to make sure that each page was attended to as it should be. Jim McInerney said he presumed the writing was already on the will, however he just flipped through the pages quickly and was not taking notice of the contents of the will.[293] Jim McInerney was however paying enough attention to point out that it should read 2019 not 2018 as the date was typed on the document. He suggested that the date be crossed out and changed to 2019 and the change initialled.[294] Jim McInerney was taken through various other notations on the will.[295] He said he did not know how those markings came to be on the will or when they were put there. He did not know whether it was Shirley O’Dea’s writing or not.[296]
[293] T184.
[294] T182; T184.
[295] T183-184.
[296] T994-997.
Jim McInerney said that he put the will into a big envelope addressed to Mellor Olsson at Clare and that he sealed and posted it the same day. He described this as a self-addressed envelope that was in the room at the time the will was signed. Whilst Jim McInerney was challenged on this topic, I note that Gregory Anderson said he left a self-addressed envelope with Shirley O’Dea on 20 December 2018. Laura Sullivan said it was not usual for Gregory Anderson to have a client post back a will. Her evidence was as follows:[297]
QSo you never gave a client a Will with an envelope saying 'Post it back' or anything like that.
AHe may have done it once or twice to people that couldn't get to him, so he would send it out and give them witness instructions but very, very rarely. He would actually take the Will ready to go and he would be there for execution and it would come back in the file for us to copy.
QSo you don't recall a time when a client would be sent a copy of the Will in an envelope saying 'Please post it back to us'.
AProbably twice.
QAnd so that was an unusual instance, occurrence.
AYeah, it wasn't normal process.
[297] T1029.
Whilst plainly Gregory Anderson did not leave self-addressed envelopes as a usual practice, I accept that he did that on this occasion. Presumably this is because he had limited time to spend with Shirley O’Dea on 20 December 2018 and did not consider that he would be able to arrange for the execution of the will.
Summary – key factual findings concerning contested wills.
March 2017 will
The March 2017 will was a copy of the September 2016 will signed in error. Gregory Anderson took the wrong will to his appointment with Shirley O’Dea. No one noticed that this was the case. I find that Gregory Anderson did not read through the will with Shirley O’Dea, nor did he undertake cognitive testing. He apparently relied on the fact that he had sent a draft will to Shirley O’Dea for her to consider prior to this appointment and assumed that she had read it.
The circumstances of the execution of the March 2017 will demonstrate that Gregory Anderson’s general approach to Shirley O’Dea’s wills was not in accordance with the careful approach he outlined in his affidavit.[298]
[298] Exhibit R1 50.
February 2018 will
On the face of the will there was due execution. The document appears rational and to accord with Shirley O’Dea’s instructions to Gregory Anderson. It is consistent with Shirley O’Dea’s long held testamentary intentions as to the gifts of land. It further appears that, at some point, Shirley O’Dea had read the will given the handwritten amendments that were initialled by Shirley O’Dea and the witnesses. There are however some concerns as to Shirley O’Dea’s capacity given the evidence of Dr Innis and given Gregory Anderson is not able to say what he did in relation to capacity testing either when he took Shirley O’Dea’s instructions or when he witnessed her executing the will.
Change in gifts of farmland
In May 2018 Shirley O’Dea gave instructions given to Gregory Anderson in relation to her will that did not involve changes to gifts of the farmland.
I do not accept Jim McInerney’s evidence that Shirley O’Dea initiated discussions about changes to her will on 22 June 2018 nor do I accept his evidence about the content of those discussions.
I find that Jim McInerney initiated the changes to the will by telephoning Gregory Anderson on 10 August 2018. There is no evidence that Shirley O’Dea had any prior contact with Gregory Anderson concerning changes to the gifts of farming land. Jim McInerney’s call was not expected by Gregory Anderson. His call prompted Gregory Anderson to make an appointment to see Shirley O’Dea on 23 August 2018.
The evidence about what was discussed at the appointment on 23 August 2018 is unclear owing to the lack of notes on Gregory Anderson’s file and his inability to recall what was discussed. I find that Gregory Anderson did not take instructions to change Shirley O’Dea’s will at the appointment on 23 August 2018.
Nothing further occurred in relation to Shirley O’Dea’s will until Jim McInerney initiated contact with Gregory Anderson by telephone on 26 November 2018. As a result of that call Gregory Anderson undertook Land Titles Office searches of Shirley O’Dea’s land and made an appointment to see Shirley O’Dea at her unit on 6 December 2018.
The appointment on 6 December 2018 was the first occasion Shirley O’Dea gave Gregory Anderson instructions that she wished to leave land to Jim McInerney. Gregory Anderson did not follow the Banks approach that he outlined in his affidavit of 31 January 2022.[299] There is no evidence that he questioned Shirley O’Dea about the size and nature of her estate. What discussion there was on that topic related to Gregory Anderson’s assessment of the value of the land being left to the Lanes. Shirley O’Dea did not apparently appreciate that this was a significant underestimation. There is no evidence that Gregory Anderson sought to have Shirley O’Dea describe her reasons for the significant change to the disposition of the farmland in the manner he described in his affidavit.[300] Accordingly, he did not assess whether her reasons were soundly based. Gregory Anderson did not discuss Shirley O’Dea’s cognitive capacity with Dr Nyoni.
[299] Exhibit R1 50.
[300] Ibid at [6].
Jim McInerney attended the appointment on 6 December 2018 at which substantial changes were contemplated in his favour. He instigated this appointment and the previous appointment. He had no obvious claim to represent Shirley O’Dea. These matters ought to have given Gregory Anderson pause yet he did not, as he says was his practice, take any steps to satisfy himself that Shirley O’Dea was not subject to any undue influence in changing her will in Jim McInerney’s favour. This is particularly concerning in view of the medical evidence.
Following the 6 December 2018 appointment Gregory Anderson prepared a new will for Shirley O’Dea. He sent a draft of the new will under cover of a letter dated 10 December 2018. The letter did not contain any advice about the content of the will.
Gregory Anderson attended at Shirley O’Dea’s home on 20 December 2018 to deliver a copy of the will sent in draft on 6 December 2018 for execution. Gregory Anderson was pressed for time and did not arrange for execution of the will in accordance with his usual practice. He instead left the will with a stamped self-addressed envelope with Shirley O’Dea. I find that Gregory Anderson did not go through the will with Shirley O’Dea and that he did not take any steps to ensure that it reflected her true intentions and wishes. He did not take any steps to ensure that no undue influence was brought to bear on Shirley O’Dea. I find that he simply left the will with her to sign and return.
26 December 2018 will
Jim McInerney arranged for the execution of the will on 26 December 2018 but mistakenly used the draft will posted on 10 December 2018, instead of the copy for execution delivered by Gregory Anderson on 20 December 2018. There is no evidence that the will was read to Shirley O’Dea, nor that she read or understood it prior to signing it. I find that Jim McInerney dated the will. Molly Smallacombe’s evidence on the topic of execution is not helpful but I accept Maureen Pisano’s evidence that the will was signed by Shirley O’Dea in her presence on 26 December 2018.
I reject Jim McInerney’s evidence concerning the reasons that the will was re-executed on 25 January 2019. In particular, I reject his evidence that it was at the behest of Shirley O’Dea, following concerns raised by the Nursing Home staff acting as witnesses, I find that Jim McInerney noted the “draft” stamp and was concerned about the validity of the will and hence organised the will to be re-executed.
25 January 2019 will
The execution copy of the will left by Gregory Anderson on 20 December 2018 was executed on 25 January 2019. There is no evidence that this will was read to Shirley O’Dea, nor that she read and understood it prior to signing it.
Jim McInerney was present and flipped the pages ensuring that it was signed on each page and that the date was changed to reflect the fact it was 2019 not 2018 as typed on the will.
Jim McInerney took possession of the will after execution and sent it to Mellor Olsson in the envelope provided by Gregory Anderson during his meeting with Shirley O’Dea on 20 December 2018. I do not know who wrote the various notations on the will. I find that they were on the will at the time of execution given Jim McInerney took possession of the will immediately after execution.
Conclusion - legal onus
I find that there is evidence of due execution of the February 2018, December 2018, and January 2019 wills notwithstanding some unsatisfactory aspects to this evidence in relation to the execution of the December 2018 will outlined above.
I put the March 2017 will to one side because no party contends that this will represents the testamentary intentions of Shirley O’Dea as communicated to Gregory Anderson.
The legal onus of proving a will lies with the party propounding it both as to testamentary capacity and knowledge and approval. Jack O’Dea, the executor, takes a neutral position and accordingly the burden falls on Jim McInerney in relation to the December 2018 and January 2019 wills and on the Church and Dr Lane in relation to the February 2018 will.
Testamentary Capacity
Is there a presumption as to testamentary capacity?
As the February 2018, December 2018 and January 2019 wills were duly executed the question then arises whether they are rational on their face. The Church contends, relying upon Hayward v Moloney,[301] that the December 2018 and January 2019 wills are not given the substantial change to Shirley O’Dea’s longstanding testamentary intentions.
[301] Moloney at [289].
A substantial change, of itself, does not indicate that the wills are not rational. In the circumstances of this case however there is no proper explanation of the reasons for the change. There is a serious concern that the beneficiary of those changes, Jim McInerney, was actively involved in the changes to the extent that he was present when instructions were given and when both wills were executed. I conclude that the wills are not rational on their face.
There is no similar issue with the February 2018 will.
Has the presumption as to testamentary capacity been rebutted by doubt?
Even if I was wrong to find that the December 2018 and January 2019 wills were not rational, I consider that the presumption as to testamentary capacity in respect of both has been rebutted by doubt due to a number of factors. Specifically:
·the radical changes to Shirley O’Dea’s long adhered to testamentary dispositions of her land, the lack of cogent evidence as to the reasons for those changes and the absence of any evidence that Shirley O’Dea weighed the competing claims and made a deliberate choice to change her wills.
·Shirley O’Dea’s advanced age of 94 and the fact that she was about to, and in the case of the January 2019 will, had just entered a nursing home.
·The evidence of the observations in the medical and nursing records and the oral evidence of Jack O’Dea, Dr Lane, Sonja Gangell and Kirsty Ingram including forgetfulness, inability to look after herself, inability to undertake financial tasks.
·Shirley O’Dea’s significant vision impairment and absence of evidence that she read the wills or had the wills read to her.
·The evidence that, at the time instructions were provided and at the time of execution of the wills Shirley O’Dea was physically unwell including with leg ulcers requiring regular nursing treatment.
·The medical evidence that Shirley O’Dea was suffering mild brain disease and mild cognitive impairment.
·The lack of evidence about whether Shirley O’Dea had the opportunity to reflect upon her wills and whether she received independent advice.
·Jim McInerney’s active involvement in the preparation and execution of the two wills which represented a significant change from long held testamentary intentions in his favour.

The situation is less clear in relation to the February 2018 will. Certainly, Shirley O’Dea was of advanced age and suffering various physical ailments together with mild brain disease and mild cognitive impairment. Dr Innis considered that Shirley O’Dea had dementia that had evolved over a number of years and that it was unlikely that her cognitive deficits arose suddenly after June 2018. There is also the evidence of Dr Lane and Jack O’Dea that Shirley was struggling to undertake her usual financial activities such as paying bills, recording cheques and the like from mid to late 2017. On the other hand, this will did not represent a significant change from her wills over a nearly 20 year period, the handwritten amendments are consistent with Shirley O’Dea having read it, and the will was executed in the presence of two witnesses. On balance, I do not consider that the presumption of testamentary capacity has been rebutted in relation to the February 2018 will.
In these circumstances therefore the burden of proving testamentary capacity falls on Jim McInerney in respect of the wills he propounds either the January 2019 will or the December 2018 will.
The medical evidence
There is a dispute between Professor Rosenfeld and Dr Innis as to whether Shirley O’Dea had a diagnosis of subclinical delirium or dementia. Professor Rosenfeld accepted that Shirley O’Dea suffered from mild brain disease and mild cognitive impairment which not infrequently goes on to progress to dementia. He did not however consider that Shirley O’Dea was suffering dementia in late 2018 and early 2019 in the light of the medical records and the affidavit material from Gregory Anderson. Professor Rosenfeld considered that the observations of the community nurses were explicable on the grounds of subclinical delirium.
Dr Innis based her diagnosis of dementia on the basis of evidence of short term memory loss, impaired orientation to time, reduced judgment and lack of insight, lack of self-care in several respects. Dr Innis’ view was that there was no indication in the various medical notes that subclinical delirium was present. Dr Innis’ opinion is supported by that of Dr Lucas who, whilst not qualified to diagnose medical conditions, is able to express a view as to the effects of those conditions upon function. She said that the cognitive issues displayed by Shirley O’Dea were consistent with dementia symptoms and raised concern about Shirley O’Dea’s executive functioning.
On balance I prefer the evidence of Dr Innis that Shirley O’Dea suffered from dementia which had been evolving for some years. This is congruent with Shirley O’Dea’s inability to properly deal with her financial affairs from at least September 2017. I further note that Professor Rosenfeld’s opinion was to a great extent influenced by Gregory Anderson’s affidavit evidence concerning Shirley O’Dea’s functioning and the approach he asserted that he followed with Shirley O’Dea when taking instructions and executing wills which I have largely rejected. For example, Professor Rosenfeld considered, on the basis of Gregory Anderson’s affidavits, that there was no evidence that at the time of providing instructions and the subsequent signing of her wills Shirley O’Dea was influenced in her decisions. However, the affidavit material says nothing about Jim McInerney’s extensive involvement in the will making process.
Even if I were wrong to prefer Dr Innis’ diagnosis, it is plain that a diagnosis of delirium makes little difference to an assessment of Shirley O’Dea’s testamentary capacity at the relevant times. The evidence of Professor Rosenfeld and Dr Innis establishes that both conditions cause periods of executive dysfunction. Likewise, the uncontroversial diagnoses of mild brain disease and mild cognitive impairment would, in the view of all three experts, have impacted Shirley O’Dea’s executive functioning. Executive functioning involves activities such as planning, decision-making, working memory, mental flexibility, judgment, and reasoning.[302] These activities are all relevant to testamentary capacity.
[302] Exhibit R2 98 DBE at 4.
All three experts accepted the general propositions in Professor Rosenfeld’s first report that I have outlined above. Even people with cognitive impairment can exercise testamentary capacity if properly supported to undertake the specific cognitive tasks required. Shirley O’Dea’s presentation would likely have fluctuated from day. She may well have been able to undertake a range of tasks and activities such as conversing with visitors about topics of interest to her, but I find that she lacked the capacity to undertake a number of specific cognitive tasks, such as those relating to her finances, without assistance. There is objective evidence of a lack of testamentary capacity. This includes Shirley O’Dea’s inability to deal with financial matters since late 2017 and short term memory issues noted by the community health nurses and some of the lay witnesses such as Annette Barker, Kirsty Ingram and Father Sexton.
David Evans met Shirley O’Dea at the nursing home on 18 January 2019. He formed the view that Shirley O’Dea knew and approved of the advance care directive and the power of attorney that he had prepared. Whilst these documents are not of the same level of complexity as a will and require less specific cognitive tasks it is nonetheless of importance that an experienced solicitor such as David Evans, who has had significant previous dealings with Shirley O’Dea, formed the view that he did. However, David Evans’ evidence must be viewed in the context of the medical evidence that Shirley O’Dea’s condition would likely have fluctuated from day-to-day and that even a person with dementia can exercise testamentary capacity with proper assistance. David Evans went through these documents with Shirley O’Dea in a methodical and careful way that was lacking in Gregory Anderson’s approach to the wills. David Evans gave Shirley O’Dea the assistance that she required in order to properly understand and execute the advance care directive and the power of attorney.
A will requires the “highest degree of mental soundness”. [303] This is the reason that a solicitor’s duties in relation to wills are so onerous. Gregory Anderson’s affidavit of 31 January 2022 sets out what he ought to have done.[304] He signally failed to do any of these things on a number of occasions including at the meetings on 23 August 2018, 6 December 2018 and when he delivered the will on 20 December 2018.
[303] Crago v McIntyre [1976] 1 NSWLR 729.
[304] Exhibit R1 51.
Shirley O’Dea had variable function which required particular care to ensure that she understood the purpose and effect of her will, the nature and extent of her property, the nature of the claims to her property by those excluded by the will and to exclude the possibility of suggestibility raised by both Dr Innis and Dr Lucas. I cannot be satisfied that Shirley O’Dea had testamentary capacity at the time she provided instructions to Gregory Anderson on 6 December 2018 or when Gregory Anderson provided her with the draft copy of the will and the execution copy in December 2018.
I find that Gregory Anderson did not at any stage undertake a proper assessment of Shirley O’Dea’s testamentary capacity in relation to the December 2018 and January 2019 wills. The evidence indicates that Shirley O’Dea did not identify all of her property when asked to do so in August 2018. There is no evidence that Gregory Anderson asked Shirley O’Dea to do this in December 2018. It does not appear that Gregory Anderson asked the type of non-leading questions he identified as appropriate to ascertain what Shirley O’Dea’s assets were, who she wanted to leave those assets to and why she chose to do this. There is certainly no file note that records this.
The evidence of Gregory Anderson moreover indicates a degree of suggestibility consistent with the evidence of Dr Innis and Dr Lucas. The change to the gift to the Lanes appears to have occurred as a result of Gregory Anderson questioning the gift as “extraordinarily generous”. It is troubling that this commentary apparently prompted Shirley O’Dea to agree to a change to her long held testamentary intentions in circumstances where the beneficiary of that change was in the room at the time the instructions were given. Gregory Anderson suggested that the Lanes were well off, the same could be said of Jim McInerney.
Likewise, there is little, if any, explanation of the change of gift from the Church to Jim McInerney. Whilst I have accepted that Shirley O’Dea was concerned about sexual abuse issues within the Church in general terms over a long period of time, there is no evidence that this affected her view of the Church to the extent that she determined to exclude the Church from her will. No evidence was called to suggest that this issue was more topical or pressing for Shirley O’Dea at the time of these changes. No evidence was called about compensation payments nor was there evidence of the Church selling property to make such payment. In any event, Shirley O’Dea’s previous wills contained a condition as to the disposition of the proceeds of any future sale of land by the Church. Gregory Anderson did not explore these issues with Shirley O’Dea, nor did he apparently provide her with any advice on this topic. Unlike with the gift to the Lanes, Shirley O’Dea was not given any advice concerning the generosity of the gift encompassed by the changes to Jim McInerney. Further it was entirely inappropriate that Gregory Anderson received these instructions in the presence of Jim McInerney.
Gregory Anderson visited Shirley O’Dea in her unit on 20 December 2018 to deliver her will. Shortly after this, Shirley O’Dea moved into the adjacent nursing home. There is no evidence that Gregory Anderson made any enquiries of Shirley O’Dea’s general practitioner Dr Nyoni or the nursing home staff about Shirley O’Dea’s capacity. Further, I have found that Gregory Anderson did not read the will to Shirley O’Dea. Even if I accepted his evidence that he paraphrased the changes and asked Shirley O’Dea if she agreed with them, this is insufficient in the circumstances.[305]
[305] Ryan v Dalton at [107].
Likewise, there is no evidence that Shirley O’Dea had testamentary capacity at the time she executed the December 2018 and January 2019 wills. Indeed, the fact that the December will was marked “draft” strongly supports the proposition that she did not have such capacity. I am satisfied that the will was simply placed in front of Shirley O’Dea, and she signed it without reading. This is particularly concerning given the lack of clarity about the instructions that were provided to Gregory Anderson. Jim McInerney’s involvement in the execution of the wills is problematic to say the least.
Jim McInerney has not established that Shirley O’Dea had testamentary capacity to make the January 2019 will, or the December 2018 will.
Knowledge and approval
Given my findings that Jim McInerney has not established that Shirley O’Dea had testamentary capacity at the time of the December 2018 and January 2019 wills, the presumption of knowledge and approval does not arise. Notwithstanding this I indicate my view that the presumption would have been rebutted for similar reasons to the presumption concerning testamentary capacity. In those circumstances Jim McInerney would have to provide affirmative evidence that Shirley O’Dea knew and approved of the contents of those wills. He has not done so.
Gregory Anderson did not go through the December 2018 and January 2019 wills with Shirley O’Dea as he says. Instead, a draft copy was posted to Shirley O’Dea. There was no advice provided as to the contents of the draft in the covering letter. There is no evidence that Shirley O’Dea read the draft. Unlike the February 2018 will, Shirley O’Dea did not provide further instructions following receipt of the draft. Gregory Anderson was, to use his expression, pressed for time when he delivered the execution copy of the will to Shirley O’Dea. I have found that he simply left the will with her to read and to be executed and returned to him at a later date. There is no evidence that Shirley O’Dea read and understood this copy. To the contrary, it appears that Shirley O’Dea did not note that the December 2018 will was marked with the word “draft”. Nor did an obvious drafting error in clause 4 of the December 2018 and January 2019 wills prompt any questions from Shirley O’Dea. Further it is apparent that Shirley O’Dea had a significant vision impairment casting a significant doubt as to her ability to read the will. In the absence of evidence that Shirley O’Dea read the will, or had it read to her, I could not be satisfied that she knew and approved the contents of these wills.

[2024] SASC 110

22 August 2024