Peacock v Knox

[2025] NSWCA 160

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Peacock v Knox [2025] NSWCA 160

Hearing dates:

15 April 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Before:

Ward P at [1]; Adamson JA at [262]; Ball JA at [263]

Decision:

1.   Appeal dismissed with costs.

2.   In the event that there is a shortfall between the costs payable by the appellant and the first respondent’s solicitor/client costs of the appeal, direct that the shortfall be paid out of the estate of the deceased on the indemnity basis.

Catchwords:

SUCCESSION – wills, probate and administration – contested probate – testamentary capacity – knowledge and approval of will – where deceased suffering cognitive impairment – evidence that deceased expressed intention to disinherit sole beneficiary under previous will – whether primary judge erred in making various factual findings and evidentiary rulings – whether primary judge erred in not accepting unchallenged expert evidence as to capacity and giving weight to lay evidence and that of solicitor witnessing the new will – whether primary judge erred in obiter finding that if new will invalid the evidence as to capacity as at that time would raise a doubt, which was not resolved by the evidence, as to capacity at time of previous will

COSTS – whether primary judge erred in making costs order against appellant personally and not applying so-called probate exception to costs

Legislation Cited:

Evidence Act 1995 (NSW), s 135

Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 42.7

Cases Cited:

Astridge v Pepper [1970] 1 NSWR 542

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 2 Moo PC 480; [1838] 12 ER 1089

Boreham v Prince Henry Hospital (1955) 29 ALJ 179

Boughton v Knight (1873) LR 3 P&D 64

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

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

Croft v Sanders [2019] NSWCA 303

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

Dedakis v Deligiannis [2024] NSWSC 1018

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), 18 June 1998, unreported)

Estate Rofe [2021] NSWSC 257

Fincham v Edwards (1842) 163 ER 656

Fuller v Strum [2002] 2 All ER 87; [2002] 1 WLR 1097

Harrison v Petersen [2000] QSC 415

Hookway v Hookway [2016] TASSC 28

House v The King (1936) 55 CLR 499; [1936] HCA 40

In Re Horrocks (deceased); Taylor v Kershaw [1939] P 198

In the Will of Steward (deceased) [1964] VR 179

Kerr v Badran [2004] NSWSC 735

Knox v Peacock [2024] NSWSC 976

Knox v Peacock (No 2) [2024] NSWSC 1372

Lim v Lim [2023] NSWCA 84

Mekhail v Hana [2019] NSWCA 197

Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13

Paraskov v Paraskos [2002] WASC 109

Perpetual Trustee Company Limited v Baker [1999] NSWCA 244

Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275

Phillips v Phillips [2017] NSWSC 280

Phillpot v Olney [2004] NSWSC 592

Re Buckton [1907] 2 Ch 406

Re Dowling [2013] NSWSC 1040

Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698

Re the Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Redroff v Miegoch (Supreme Court (NSW), 22 April 1996 unreported)

Revie v Druitt [2005] NSWSC 902

Smith v Smith; Estate of Smith [2007] NSWSC 116

Thompson v Bella-Lewis [1997] 1 Qd R 429

Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22

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

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Vernon v Watson [2002] NSWSC 600

Warton v Yeo [2015] NSWCA 115

Wintle v Nye [1959] 1 WLR 284

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

F G Myers, “Testamentary Capacity” (1967) 2(2) Aust Bar Gaz 3

GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis)

Category:

Principal judgment

Parties:

Isabelle Agnes Peacock (Appellant)
Geoffrey Knox (First Respondent)
Sydney Opera House Trust (Second Respondent)

Representation:

Counsel:
M Green SC with M Gaven (Appellant)
S Chapple SC with D Yazdani (Respondents)

Solicitors:
McPherson Park Lawyers (Appellant)
Hicksons (Respondents)

File Number(s):

2024/327543

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

Knox v Peacock [2024] NSWSC 976

Knox v Peacock (No 2) [2024] NSWSC 1372

Date of Decision:

8 August 2024
30 October 2024

Before:

Hmelnitsky J

File Number(s):

2021/292264

HEADNOTE

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

In proceedings commenced by the first respondent (Mr Geoffrey Knox), a solicitor from Kennedy & Cooke lawyers, and one of the executors of the last will (the 2020 Will) of the deceased (the late Eva Easton) seeking probate of that will, the appellant (Isabelle Peacock) challenged the testamentary capacity and knowledge and approval of the 2020 Will of the deceased and sought an order for the admission to probate of the deceased’s previous 2019 Will.

The deceased, who died aged 89 in September 2021, was suffering from cognitive impairment as at the time of the making of the 2020 Will and residing in a high needs care facility (at Maranatha Lodge). The deceased had no known living relatives and her only friends other than the appellant had moved interstate in 2019. In April 2019, after those other friends, who had been assisting to care for the deceased and manage her finances, and who had been the sole beneficiaries under an earlier will, moved interstate, the deceased appointed the appellant as her attorney under an Enduring Power of Attorney and her guardian under an Enduring Guardianship deed. The deceased also made a will (the 2019 Will), making the appellant her sole beneficiary. From April 2019, the appellant assisted the deceased with managing her finances.

From March 2020, following the onset of the COVID-19 pandemic, the appellant stopped regular in person visits to the deceased at Maranatha. Visitors to Maranatha were required to have an influenza vaccination and the appellant refused to be vaccinated. This caused a breakdown in the friendship between the deceased and the appellant. The appellant acknowledged in her own evidence that the deceased became angry and upset with her and for a time refused to speak with her.

After Maranatha management became concerned at difficulties in timely payment by the deceased of its fees, a member of staff arranged for the attendance on 22 September 2020 of the first respondent on the deceased at Maranatha. During that attendance, the deceased gave instructions for a new will. On 19 November 2020, the deceased executed a new will (the 2020 Will), appointing the first respondent as one of the executors and making the second respondent, the Sydney Opera House Trust, the sole beneficiary. The bequest was for the promotion of performances of German classical music.

In 2022, the first respondent, in his capacity as executor, sought probate of the 2020 Will. The appellant lodged a caveat against probate. The appellant alleged that the deceased lacked capacity to make the 2020 Will and did not know and approve of the 2020 Will. By cross-claim filed in the proceedings the appellant sought orders that probate of the 2019 Will in solemn form be granted to her. The appellant also made various alternative claims (alleging the existence of a testamentary contract for breach of which she sought damages, and invoking the principles of promissory estoppel) but at the end of the hearing at first instance those alternative claims were not pressed. At the hearing, evidence was adduced from a number of lay witnesses (including the first respondent, the deceased’s GP and a staff member from Maranatha, Ms Flannery), who deposed to a number of conversations in which the deceased said that she did not want the appellant to get anything of hers. Expert evidence was adduced from a jointly appointed expert, Dr Lonie, as to the issue of the deceased’s capacity. Dr Lonie concluded that the deceased likely lacked capacity to make the 2020 Will as, due to vascular dementia, she had lost the ability to reason and weigh the claims on her estate in the manner that she otherwise would have.

The primary judge found that the deceased had testamentary capacity at the time the 2020 Will was made, placing weight on the observations of the GP and the lay witnesses, and admitted the 2020 Will to probate. The primary judge, in obiter, said that if he had concluded that the 2020 Will was invalid then the evidence as to capacity would raise doubts as to the deceased’s capacity to make the 2019 Will, which were not resolved on the evidence. The primary judge awarded costs against the appellant personally.

On appeal, the appellant challenged various of the primary judge’s factual findings and evidentiary rulings and the ultimate conclusion as to the deceased’s testamentary capacity, as well as the failure by the primary judge separately to consider the issue of knowledge and approval of the 2020 Will. The appellant also challenged the primary judge’s finding as to unresolved doubt as to capacity in relation to the 2019 Will. Finally, the appellant challenged (irrespective of the outcome of the other grounds of appeal) the personal costs order made against her.

The respondents filed a notice of contention asserting that, having found testamentary capacity, the primary judge should also have found that the deceased knew and approved of the 2020 Will.

The Court held (Ward P, Adamson and Ball JJA agreeing), dismissing the appeal with costs:

1. The primary judge did not err in finding that the deceased had testamentary capacity to make the 2020 Will, notwithstanding the finding that she suffered from vascular dementia, nor did his Honour err in the factual findings made as to: the deceased’s desire and intention to change her will; the cause in the breakdown of the relationship between the appellant and the deceased; the rationality of the deceased’s anger at the appellant; and the rationality of the decision to disinherit her in favour of the second respondent. In so finding, his Honour was entitled to accord the weight that he did to the evidence of firsthand lay witnesses: [72], [82], [91], [111], [119], [122], [130], [138], [157], [160]-[167], [174], [180] (Ward P); [262] (Adamson JA); [263] (Ball JA).

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Revie v Druitt [2005] NSWSC 902, cited. Kerr v Badran [2004] NSWSC 735 applied.

2. The primary judge did not misidentify or misapply the test for testamentary capacity. The law does not require that a testator be free from cognitive impairment. His Honour did not err in accepting, in accordance with the test in Banks v Goodfellow, that the deceased understood the significance of making a will; that she knew what she owned; and that she understood that her previous 2019 Will left everything to the appellant – something she consistently voiced her desire to change: [193], [195]-[199] (Ward P); [262] (Adamson JA); [263] (Ball JA).

Banks v Goodfellow (1870) LR 5 QB 549, applied.

3. The age and mental frailty of the deceased was a circumstance which arguably invited suspicion as to the deceased’s knowledge and approval of the 2020 Will. It was therefore necessary for the primary judge separately to consider whether the deceased knew and approved of that will. The evidence of Mr Knox, an experienced solicitor, was sufficient to establish on the balance of probabilities that the deceased knew and approved of the 2020 Will: [207]-[209], [220] (Ward P); [262] (Adamson JA) [263] (Ball JA).

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 applied. Thompson v Bella-Lewis [1997] 1 Qd R 429; Mekhail v Hana [2019] NSWCA 197; Vernonv Watson [2002] NSWSC 600; Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21; Wintle v Nye [1959] 1 WLR 284; Barry v Butlin (1838) 2 Moo PC 480; [1838] 12 ER 1089, cited.

4. The primary judge did not err in observing that, if the deceased lacked capacity to make the 2020 Will, then an issue arose as to her capacity to make the 2019 Will (an issue that the appellant had not led evidence to address). The fact that there was no pleaded case contesting the testamentary capacity of the deceased as at the time of the 2019 Will would not have compelled the primary judge to admit the 2019 Will to probate had his Honour concluded that the deceased lacked capacity to make the 2020 Will. The appellant could have brought forward evidence relevant to this issue, having been put on notice as to the issue on the first day of the hearing: [222]-[223], [229], [231]-[237] (Ward P); [262] (Adamson JA); [263] (Ball JA).

5. The primary judge’s failure to address in the costs judgment certain costs that had been previously reserved did not warrant the overall costs order being revisited. His Honour did not err in finding that the pursuit by the appellant of the litigation through to finality was not reasonable (when considering the application of the so-called probate exception to costs). In circumstances where the appellant pursued alternative claims up until the final day of the hearing, this was not simply a case where a doubt as to testamentary capacity gave rise to a reasonable challenge to the 2020 Will (in respect of which it could be said the deceased was a cause of the litigation) but rather was the pursuit by her of claims in respect of which, in the ordinary course, it might be expected that costs would follow the event: [253], [257]-[259] (Ward P); [262] (Adamson JA); [263] (Ball JA).

Redroff v Miegoch (Supreme Court (NSW), Santow J, 22 April 1996, unrep); Perpetual Trustee Company Limited v Baker [1999] NSWCA 244; Re Buckton [1907] 2 Ch 406; Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), Santow J, 18 June 1998, unrep) applied. Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13; Warton v Yeo [2015] NSWCA 115, cited.

JUDGMENT

1. WARD P: This matter involves a dispute as to the estate of the late Mrs Eva Easton, who died aged 89 on 11 September 2021; in particular, as to the deceased’s testamentary capacity at the time, and her knowledge and approval, of the Will ultimately admitted to probate (the 2020 Will). The first respondent, Mr Geoffrey Knox, a solicitor, is one of the executors appointed under the 2020 Will and in that capacity made an application for probate of the 2020 Will. The second respondent, the Sydney Opera House Trust, is the sole beneficiary under the 2020 Will.

2. The deceased’s ex-husband had pre-deceased her and she had no children (nor, to her knowledge, any living relatives). The appellant, Mrs Isabelle Peacock, was the sole beneficiary named in the deceased’s previous May 2019 Will (the 2019 Will). The appellant challenged the deceased’s capacity to make the 2020 Will ([3] of her defence) and the deceased’s knowledge and approval of that Will ([4] of her defence), by the latter expressly contending that suspicious circumstances afforded the making of the 2020 Will. Those suspicious circumstances, as particularised at [4](a)-(j) of the defence, raise only three matters relating to the actual circumstances of execution of the 2020 Will (particulars (e)-(g)), the remaining particulars (after repeating the matters particularised in respect of the allegation of lack of testamentary capacity) relate to the appointment of a financial manager for the deceased proximate to the making of the 2020 Will and to events after the making of the Will, as well as the deceased not having previously expressed to the appellant an interest in the Sydney Opera House. In oral submissions on the appeal, emphasis was placed on the deceased’s frailty, anxiety, and the fact that she was in a nursing home (AT 5.4-9).

3. The appellant, by her amended first cross-claim, sought orders that probate of the 2019 Will be granted to her (relief for which she here contends if her appeal is successful) though in reply both orally (AT 60.37-32) and in writing (submissions at [12]) the appellant denies that she “propounded” that Will. The appellant also made various alternative claims in her cross-claim (alleging the existence of a testamentary contract for breach of which she sought damages and invoking the principles of promissory estoppel) but at the end of the hearing at first instance those alternative claims were not pressed.

4. On 8 August 2024, the primary judge, Hmelnitsky J, published his reasons, concluding that the deceased had capacity to make the 2020 Will (see Knox v Peacock [2024] NSWSC 976, the primary judgment, at [288]) and made orders granting probate of that Will in solemn form to the first respondent. As the respondents here concede, his Honour did not separately address the question of knowledge and approval of the 2020 Will. In obiter, his Honour observed that, had he accepted the whole of the evidence of the jointly appointed expert (Dr Lonie) on the issue of capacity, he would not have been willing to make an order for probate in relation to the 2019 Will as that same evidence would have given rise to a doubt as to the deceased’s capacity to make that earlier Will (see [303] of the primary judgment).

5. The appellant challenges his Honour’s decision and, as adverted to above, seeks orders from this Court admitting the 2019 Will to probate in solemn form (see Notice of Appeal filed 7 November 2024). The first respondent has filed a Notice of Contention seeking to affirm the primary judge’s decision on the ground there set out (relating to the issue of knowledge and approval) (see below).

6. In a subsequent judgment (Knox v Peacock (No 2) [2024] NSWSC 1372, the costs judgment), his Honour made orders to the effect that the appellant pay the first respondent’s costs of the proceedings on the ordinary basis and that any shortfall in the costs recovered pursuant to that order be paid from the deceased’s estate on the indemnity basis. The appellant challenges various findings relevant to the award of costs against her personally.

7. For the reasons set out below, the appeal should be dismissed with costs.

Background

8. The background to the dispute is set out in the primary judgment (see from [16]-[206]), in the course of which his Honour summarised the evidence of various of the witnesses. It is not necessary to recount this in great detail. However, to put the issues raised by the appeal in their factual context, it is useful to note the following chronology of events. In what follows, references in square brackets are to the primary judgment unless otherwise indicated.

9. The appellant first met the deceased in 2004 when the deceased visited the appellant in the latter’s professional capacity as an aromatherapist and they had formed a “good friendship” by around 2009 ([17]-[30]). The deceased’s only other friends at that time were Hildegard and Heinz Scheffler (the Schefflers), a German couple that the deceased met through her church ([26]). The Schefflers provided assistance to the deceased ([27]) up until 2019 (by doing her laundry, ironing and gardening; and assisting her to withdraw cash from the bank to pay her bills; and helping her to attend appointments – see [36]).

10. Following a fall at her Maloney’s Beach home in September 2017, the deceased entered into residential care in the “high needs” facility at Maranatha Lodge (Maranatha) in November 2017. Contemporaneous Maranatha records refer to the deceased suffering from “fairly significant depression and anxiety”, with only “limited ability to control her moods” ([38]). The primary judge referred to the deceased as a “highly anxious person who found it difficult to make choices” and as “highly discriminating” ([30]).

11. From 2017, the appellant began to visit the deceased more frequently (sometimes for hours at a time) and the appellant drove the deceased to visit the deceased’s home, ownership of which the deceased retained after she moved into Maranatha ([33]).

8. In December 2017, shortly after her arrival at Maranatha, the deceased appointed Mrs Scheffler as her attorney under an Enduring Power of Attorney and as her guardian under an Enduring Guardian appointment document. At that time, the deceased made a will appointing the Schefflers as her executors and leaving her whole estate to them (nominating the appellant as an alternative residuary beneficiary) ([34]). (The appellant notes that the Schefflers were provided with formal notice of the proceedings before the primary judge and did not challenge the 2019 Will. The appellant says that, in the absence of a challenge to the validity of that will, her evidence in the proceedings before his Honour was limited to her challenge to the 2020 Will. Nevertheless, as already noted, the appellant sought by her cross-claim in those proceedings the admission to probate in solemn form of the 2019 Will.)

9. In January 2019, the Schefflers informed the deceased that they intended to move to Queensland. The deceased was angry and upset about this ([37]) and felt that she had been abandoned by them (that they had “up and left”). The deceased was also anxious about her finances (which had been managed for her by Mrs Scheffler).

10. The appellant’s evidence was that in early April 2019 the deceased asked her to take over all her financial affairs and to take her to a solicitor to appoint the appellant as her attorney under an Enduring Power of Attorney and her guardian. This was corroborated by contemporaneous Maranatha clinical notes ([37]). The deceased executed an Enduring Power of Attorney in favour of the appellant, and appointed her as Enduring Guardian, on 23 April 2019 ([40]).

11. From 29 May 2019, the appellant managed the deceased’s finances (consulting and visiting with the deceased at Maranatha in relation to this). Although the primary judge quoted (at [51]), and accepted, the appellant’s evidence that she only took steps with respect to any bills and payments “following consultation” with the deceased, the appellant here challenges this factual finding on the basis that the evidence disclosed that her practice was that she paid bills and consulted afterwards. Nothing relevantly turns on the difference in the timing of the appellant’s consultation with the deceased in relation to the payment of bills, though it is difficult to criticise the primary judge quoting the appellant’s own affidavit evidence on this issue. The appellant, however, appears to rely on this in the context of her complaint that the primary judge considered that there was a rational basis for the deceased’s concern as to the management of her finances (as I explain in due course).

12. On 29 May 2019, the deceased made a new will (the 2019 Will), making the appellant her sole beneficiary. The primary judge noted that there was no direct evidence as to when and in what circumstances the solicitor who prepared that will (Ms Christine Park, the solicitor on the record for the appellant in these proceedings) had taken instructions from the deceased to prepare the will ([45]).

13. There was some evidence as to difficulties in the management of the deceased’s finances in the period from May 2019 to 2020 when the appellant had responsibility for this. The primary judge made various findings in this regard that are here challenged by the appellant: at [52], that the appellant “was either unable or unwilling to assume full control of [the deceased’s] finances”, “had no role in ensuring that there were funds available for the Visa card”, and “did not know how funds were deposited into the Visa card account”; at [54], that so far as Maranatha was concerned, the appellant “was generally only able to pay bills with the cooperation of [the deceased]” (since until May 2020 it seemed that the deceased preferred to pay her Maranatha bills in cash and, without the passbooks, the appellant was unable to access the deceased’s cash); and at [55], that this “same difficulty seems to have existed for some other costs” (the primary judge giving by way of example of this an issue arising in relation to the deceased’s unwillingness to pay for gardening work at her Maloney’s Beach property – which the appellant emphasises was an issue that the appellant had in relation to the gardener’s marital status). (The appellant clearly attributes any issue as to the management or mismanagement of the deceased’s accounts to a falling out between the appellant and the facility manager at Maranatha from early 2020 to September 2020, Mr Doran.) I consider the challenges to those factual findings in due course.

14. Complaint is also made by the appellant as to findings by the primary judge (at [56]; [59]) that “[the appellant] was not pro-active in managing issues” and that “[t]he difficulties that existed with [the deceased’s] finances in 2019 and 2020 were the result of poor financial management”.

15. The relevance of the difficulties in management of the deceased’s finances (whatever be the cause of those difficulties – i.e., whether there was poor financial management by the appellant or the difficulties were due to resistance by the deceased to the making of payments) seems largely to go to the complaint by the appellant that the management or staff at Maranatha had sought to “exclude” her and the making by Maranatha staff of an appointment for the first respondent to attend the deceased in September 2020 for a replacement attorney to be appointed (to which I refer shortly). However, those difficulties are also relevant to the finding by his Honour (at [69]) that the deceased’s financial situation became very strained once the appellant stopped visiting the deceased.

16. Certainly, from Maranatha’s perspective there were difficulties in relation to the timeliness of payment for its fees. The primary judge noted (at [69]) that documents filed in support of a 2021 application to the New South Wales Civil and Administrative Tribunal (NCAT) for the appointment of the NSW Trustee and Guardian to manage the deceased’s affairs included an account statement from Maranatha showing that during the whole of the 2020 year, the deceased was constantly in arrears (which his Honour said must have been a real source of anxiety for [the deceased]”) (see also at [70]). The appellant here disputes that the Maranatha account was consistently in arrears (maintaining that the account balances were recorded on a running account basis) (AT 16.3-6). Nevertheless, what is not in dispute is that Maranatha management perceived there to be a problem with the management of the deceased’s finances. Nor can it be disputed that the management of the deceased’s finances (poor or otherwise) had been a long-standing source of anxiety for the deceased.

17. I have referred above to the appellant ceasing to visit the deceased at Maranatha. This arose as a consequence of the occurrence of the global COVID-19 pandemic. The primary judge said that the pandemic had a direct and significant effect on the deceased’s relationship with the appellant because the appellant did not have an influenza vaccination and was unwilling to get one ([61]). The appellant here argues that there were periods in which the nursing home was in “lockdown” and hence that, irrespective of the fact that she did not have a flu vaccination, she was unable to visit the nursing home during those periods. It is also noted that the requirement for visitors to have a flu vaccination pre-dated the pandemic (though I interpose to note that it may well be that the pandemic led to more strict insistence by Maranatha management on such a requirement). That said, apart from a few visits held outdoors (on 10 March 2020, 16 March 2020 and 18 May 2020) (AT 36.30-36), it does not appear to be disputed that from around March 2020 the appellant’s visits to Maranatha were greatly curtailed during the pandemic. (Nor would it in my opinion be irrational for someone in the deceased’s position to be upset at the cessation of visits, whether or not that was due to a decision made by the erstwhile visitor not to have a flu vaccination, but in any event the appellant herself accepts that the deceased was angry with her for just that reason.)

18. The primary judge found that the unwillingness of the appellant to have a flu vaccination meant that from March 2020, during the course of the pandemic, the appellant was unable to visit the deceased at Maranatha ([61]). The primary judge can hardly be criticised for this finding. The appellant’s own evidence (in her affidavit of 5 December 2022) was that the deceased “became angry with me that I didn’t have the injection and was not allowed inside Maranatha” (my emphasis) and that “[b]ecause of this [the deceased] refused to speak to me for a period of time”. The primary judge said that it was not entirely clear when the “communication freeze” between the appellant and the deceased began but that, doing his best, it seemed to have been in about the week of 9 March 2020 ([62]).

19. The primary judge found (at [65]) that, from about the middle of March 2020, the relationship between the two was materially worse and that both of them knew it; and said that by May 2020 they were not speaking at all despite the appellant’s efforts. His Honour had earlier (at [58]) found that “[by May 2020,] the relationship between [the deceased] and [the appellant] had deteriorated fairly dramatically”. The appellant challenges the findings at [58] and [65] as to her relationship with the deceased, asserting that they are unsupported by the evidence and/or wrong. I deal with these challenges in due course.

20. At [66], his Honour found that an undoubted cause for the breakdown in the relationship between the appellant and the deceased was the appellant’s unwillingness to get a flu vaccination and her consequential inability to visit Maranatha, which made the deceased angry and upset. That is not only consistent with the appellant’s own affidavit evidence (set out above) but also with the appellant’s account of a conversation with Mr Doran, quoted by the primary judge at [68], to the effect that the deceased was “happy for NSW Trustee to manage her financial affairs, as you [the appellant] are currently unable to continue in this role as you are not vaccinated and [the deceased] is angry with you”.

21. On 18 May 2020, the appellant had an outdoors meeting with Mr Doran, also attended by the deceased at which Mr Doran suggested that the NSW Trustee and Guardian be appointed to manage the deceased’s financial affairs ([71]), a proposition with which the appellant was not in favour ([72]). His Honour noted that following the meeting the appellant had argued with Mr Doran over the telephone about this and had tried to call the deceased to discuss the issue but the deceased refused to return her calls ([72]).

22. Contemporaneous Maranatha notes record anxiety or agitation on the part of the deceased as to her Power of Attorney (referred to by the primary judge at [73]-[74]; [76]; [79]). Relevantly, the primary judge noted (at [76]) that Ms Giusti (an acting manager at Maranatha who shared some management responsibilities with Mr Doran) had recorded (in the Maranatha clinical notes) a discussion with the deceased on 13 August 2020 in which the deceased “brought up her long-standing issue with her POA which has been causing her a great deal of anxiety” and that Ms Giusti had advised the deceased about the Older Persons Advocacy Network (OPAN). The Maranatha notes also record that in the early part of August 2020 either Ms Giusti or Mr Doran contacted OPAN for advice about the deceased’s issues “with current POA and legal counsel” ([77]).

23. On 17 September 2020, following the receipt by the appellant of legal advice, the appellant executed a notice of resignation as attorney and guardian, delivering two copies of this document to Maranatha (one of those being for the deceased) ([83]). The primary judge noted that, by this point, the appellant had not spoken with the deceased in at least three months. In cross-examination, the appellant identified 18 May 2020 as the last time she had seen the deceased prior to what was referred to by the cross-examiner as the “halting of the relationship” in June 2020 and the appellant identified the “lockdowns” as coming in about March that year. Given the evidence that the deceased had refused to take various telephone calls from the appellant, the timeline for his Honour’s finding at [83] appears correct.

24. On 22 September 2020, the first respondent (a solicitor from Kennedy & Cooke lawyers), visited the deceased at Maranatha. The appointment was made following an enquiry made of the first respondent’s firm by Ms Giusti, as appears from a note on the firm’s website enquiry set out by the primary judge (at [100]). The primary judge had earlier said (at [78]) that there was little evidence as to the consultation “that led to the decision by Maranatha to contact a local solicitor on [the deceased’s] behalf”, accepting that one motivation was Maranatha’s “own financial position”.

25. The electronic diary entry by the employee of the firm who had spoken with Ms Giusti recorded the appointment as being for “New Will, POA and EG” ([101]). His Honour attached relevance to that entry as indicating that whoever made the call to the first respondent’s office to make the appointment for 22 September 2020 (“probably Ms Giusti”) mentioned a new will (and finding that the notion of making a new will was not an idea put into the deceased’s head by someone else) ([270]). Insofar as this is a finding that the appointment was for a “New Will, POA and EG”, the appellant challenges this as erroneous, pointing to the first respondent’s evidence that he did not know the purpose of the meeting before the appointment. In any event, a large plank of the appellant’s challenge to the conclusions reached by his Honour is as to the proposition that the deceased had an intention or desire to make a new will before the making of a new will was the subject of a closed question by the first respondent at the 22 September 2020 meeting.

26. The first respondent estimated that the first meeting lasted for 35-40 minutes. The first respondent’s evidence as to what occurred at the 22 September 2020 meeting was summarised by the primary judge at [100]-[138]. His Honour found the first respondent to be a generally reliable witness ([105]) and said that the first respondent’s affidavit account of that first meeting was generally reliable save for some relatively insignificant details (one being who was present in the room with him – Ms Giusti or Ms Flannery; another being how the first respondent had framed his introduction to the deceased – namely, whether he had been the one to introduce the idea of a new will). On those issues, his Honour found that it was probably Ms Giusti who stayed in the room on 22 September 2020 ([106]), a finding not challenged on this appeal; as to the latter, his Honour noted ([109]) that the first respondent had accepted in cross-examination that he had asked a closed question about the will (“Do you want to do a will”) like the one reproduced in his file note of the meeting (not an open question as framed in his affidavit). I note that the first respondent also gave evidence that his file notes on the day were “very much brief notations”, which does not strike me as surprising if made during the course of the attendance itself.

27. The first respondent’s account of the instructions given by the deceased (see [111]-[115]) included that the deceased did not want to have anything to do with the appellant anymore; that the appellant did not help her anymore; that the deceased did not trust her and did not want her to be in the Will; and that the deceased wanted to make sure that the appellant did not get anything because she was not helping her anymore. The first respondent asked questions of the deceased as to her family and as to what she owned; whether she was still going to keep her house or might need to sell the house; and to whom the deceased wished to leave her estate.

28. His Honour noted at [114] that the evidence as to who mentioned the Sydney Opera House was inconclusive but that it did not seem to have been the deceased’s idea. According to the first respondent, the deceased said that classical music had been her interest for all her life and that she wanted it to be for German music because German composers were the ones she liked. The primary judge said that, once mentioned, the deceased was enthusiastic about the idea.

29. The first respondent’s account of the meeting included that he questioned the deceased as to who she wished to be the executor (the deceased asking him if he could do it) and who was the executor in her old will (the deceased identifying the appellant) ([115]).

30. I note that the appellant does not criticise the fact that someone else (Ms Giusti) was in the room when the instructions were taken; rather, the point is made that Ms Giusti was not called to give evidence – see AT.11. It appears that Ms Giusti had left Maranatha before the 2020 Will was executed (hence the giving of handover instructions to Ms Flannery). It is not clear whether there was any evidence as to her availability to be called as a witness.

31. After the meeting, the first defendant had a conversation with Ms Giusti in which she asked if he could become the attorney and guardian for the deceased. The first respondent said that it was inappropriate for him to assume that role and identified the NSW Trustee and Guardian as appropriate. In his oral evidence the first respondent explained that the policy of his firm was generally not to accept such appointments.

32. The 2020 Will was executed on 19 November 2020. The first respondent estimated this meeting to have lasted for 40-50 minutes.

33. Under the 2020 Will, the partners of Kennedy & Cooke were appointed as the deceased’s executors and trustees and the whole of the estate was left to the Sydney Opera House to “be used for the purposes of promoting the development of performers and performances of the music of and operas of that group of composers who could be characterised as of being of the German school of music”.

34. The primary judge explained that the reason for the delay in execution of the 2020 Will was that there had been COVID lockdowns and it had not been possible for the first respondent to return to Maranatha in the meantime (and his Honour said that there had been a change in management staff at Maranatha which may have contributed to the delay) ([119]).

35. Present in the room at the time the 2020 Will was executed were the first respondent, Ms Nedwich (an employed solicitor) and Ms Flannery. The first respondent did not keep a note of his attendance on that occasion but Ms Nedwich prepared a file note on her return to the office later that day.

36. The first respondent’s evidence is that the deceased recognised him as the lawyer (though the weight of this may be discounted by Ms Flannery’s acceptance in cross-examination that she may have prompted the deceased’s recollection before the meeting – see below); that he read out the first four paragraphs of the 2020 Will, summarised the trustee powers in paragraph five, and then read out paragraphs six and seven; that he asked if that was the deceased’s wish to which she responded yes; and that he noticed the deceased nodded several times as he was reading. The first respondent then asked the deceased what she owned; whether she was thinking of selling the house; whether she wished the firm to be executors of the will; and whether she had anyone to leave her estate to (her response being that she was happy with leaving it to the Sydney Opera House). The first respondent said that he then presented the will to her and asked if she wished to read it; and that she took the will and read it through, spending a total of about 10 minutes considering the will; and that the deceased then, in answer to a question from him as to whether she wished to sign the will, said “yes, I do”.

8. The first respondent’s evidence is that, following execution of the 2020 Will, the deceased said that she wanted her finances looked after because the appellant was not doing it anymore and was not helping her; and that he said he would see if Maranatha would organise someone to look after her finances.

9. Pausing here, criticism by the appellant as to the rationality of the deceased later disinheriting her (at a time when the deceased was expressing her anger or belief that the appellant was no longer doing anything to help her) ignores the fact that the deceased had previously done exactly the same in relation to the Schefflers.

Primary judgment

43. I have already referred to some of the findings made by the primary judge. His Honour’s reasons were structured in an orthodox way. His Honour commenced with a brief introduction, in which he identified the principle issues in dispute; outlined the applicable principles; set out the facts relevant to the issues in dispute, in the course of which he summarised some of the evidence of various witnesses (including the expert witness, Dr Lonie); set out his assessment of the lay witnesses; and then addressed his conclusions as to the deceased’s capacity to make the 2020 Will, after which he addressed in obiter the question whether the deceased had capacity to make the 2019 Will.

44. Relevantly, from [208]-[265], his Honour addressed the expert evidence of Dr Lonie (a clinical neuropsychologist jointly instructed by the parties) and his reasons for the conclusion that Dr Lonie’s evidence did not persuade him that the deceased lacked capacity to make the 2020 Will.

45. The primary judge accepted that Dr Lonie had thoroughly reviewed the available medical and lay evidence ([211]). His Honour noted that Dr Lonie was of the opinion that there had been alterations in the deceased’s cognitive functions from 2014 and that, from the latter part of 2017 up until the deceased’s death, there was a persisting and slow progressive decline in the deceased’s cognition, behaviour, psychological well-being and functional capacities “consistent with what one would expect to observe in the course of a Vascular dementia (Major Neurocognitive Disorder due to Vascular Dementia) arising secondarily to small vessel disease, possibly exacerbated by the very particular, mistrusting and independent nature of [the deceased’s] pre-morbid personality” (see Dr Lonie’s report dated 29 May 2023).

46. The primary judge further noted (at [212]) that Dr Lonie’s overall opinions included that, at the relevant times of provision of instructions for the 2020 Will and as at the time of its execution, the deceased lacked “the ability to judge and appraise significant others in the process of weighing up the claims on her estate, as a result of the combined effects of her impaired memory, reasoning ability and loss of insight” (see also the extracts from Dr Lonie’s report set out in the primary judgment at [213]-[214]).

47. His Honour considered (see at [215]) that Dr Lonie’s opinions were at times expressed by reference to her own particular understanding of the nature and quality of the relationship that existed between the deceased and the appellant at the time of the 2020 Will; and, in some respects, were to the effect that the deceased’s ability to weigh competing claims was affected by cognitive impairment such that she would not have come to the same decision had she not been affected by cognitive impairment. Dr Lonie’s report (in the passage referred to by the primary judge at [214]) referred to the deceased’s affections towards the appellant having been poisoned “as a result of impaired memory, reasoning and insight, and in the context of struggling to achieve a coherent understanding and retain some control and oversight of her financial affairs” in a manner that they otherwise would not have been, were it not for the combined cognitive effects of her vascular dementia.

48. The primary judge concluded that Dr Lonie’s opinions were not so much that the deceased could not weigh up the competing claims on her testamentary bounty at all; rather, that the deceased could not have done so in the same way as if she were unaffected by dementia ([215]). The appellant takes issue with this, submitting that Dr Lonie’s view was not that the deceased had “residual” capacity – see Grounds 3 and 4 below.

49. From [266], the primary judge set out his conclusions as to the evidence of the lay witnesses: Mr Knox, Dr Langley (the general practitioner who had treated the deceased first in 2010 but more regularly from 2017 when the deceased was first admitted to residential care until her death in 2021), Ms Flannery (an occupational therapist, with qualifications as a lawyer, who knew the deceased and who was present on the occasion that the 2020 Will was executed), and the appellant herself.

50. The primary judge’s conclusions as to the deceased’s capacity to make the 2020 Will are set out at [288]-[289]. As noted already, his Honour did not separately address the question whether the deceased knew and approved of the 2020 Will. His Honour then made observations as to the deceased’s capacity to make the 2019 Will (against the possibility that he was wrong about her capacity to make the 2020 Will).

51. As to costs, in the costs judgment, his Honour said that he had rejected the appellant’s case that the deceased lacked capacity to make the 2020 Will (costs judgment at [1]) and that even if he had been inclined to accept that contention he would not have been prepared to find that the deceased had capacity to make the alternative will propounded by the appellant (the 2019 Will). As already noted, the appellant cavils with the proposition that she “propounded” the 2019 Will but it cannot seriously be disputed that she sought an order that it be admitted to probate in solemn form (see prayer 2 in the Amended First Cross-Claim).

52. After rejecting the first respondent’s contention that the appellant should pay his costs on the indemnity basis (the first respondent relying on two written offers of compromise), about which there is here no challenge, his Honour addressed the so-called probate “exceptions” to the general rule that costs follow the event (from [33]ff of the costs judgment).

53. His Honour noted (costs judgment at [41]) the appellant’s submission that the testator’s mental frailty was the cause of the litigation and that it was reasonable for her to see the case to its conclusion in order to determine the validity of the final will. His Honour said that those factors must be weighed in the context of the proceedings as a whole, recounting the procedural and forensic setting in which the question of the validity of the 2020 Will was ultimately determined (costs judgment at [42]). In so doing, his Honour noted that the appellant had abandoned her alternative claims (based on contract or estoppel) but only during closing submissions on the last day of the hearing.

54. The primary judge said (costs judgment at [46]) that his conclusions as to testamentary capacity were reached in the light of the persuasive contemporaneous evidence of the solicitor who witnessed the will (i.e., the first respondent), the deceased’s regular GP (Dr Langley) and a staff member at the deceased’s nursing home (presumably Ms Flannery).

55. His Honour accepted that Dr Lonie’s evidence raised a question as to the deceased’s capacity (costs judgment at [49]) (though his Honour had noted at [48] that retrospective experts’ reports often have limited utility and that contemporaneous observations from persons such as solicitors, doctors and nurses will frequently be given weight in resolving the legal question of testamentary capacity, a matter that he said the appellant should have appreciated – presumably there attributing the lawyers’ assumed appreciation of this to the appellant).

56. His Honour attached weight to his finding that the evidence relied on by the appellant to impugn the 2020 Will gave rise to a serious question as to the deceased’s capacity to make the 2019 Will, such that if he had accepted that evidence it would have led him to conclude that the 2019 Will was equally unsafe (costs judgment at [50]). His Honour further said that it was evident that the appellant’s failure to lead evidence concerning capacity to make the 2019 Will was a forensic decision made on the mistaken belief that, should the issue have arisen, it would have been dealt with in some separate proceeding (costs judgment at [51]).

57. Finally, his Honour noted that the estate was valued at around $1 million and that the first respondent’s costs at the commencement of the hearing were already $200,000. His Honour said that an order that the parties’ costs come out of the estate on the indemnity basis would see a good proportion of the estate eaten up by the costs of the litigation, which his Honour said was never going to result in a grant of probate in favour of the appellant given the way the case was run (costs judgment at [53]). Accordingly, his Honour was unable to accept that the appellant’s decision to pursue the litigation through to finality in the way she did was reasonable (costs judgment at [55]). Hence, his Honour made the costs orders he did (including the order now impugned by the appellant that she pay the first respondent’s costs on the ordinary basis).

Appeal

58. Not all of the grounds of appeal were pressed at the hearing (those not being pressed were Grounds 2(b)-(c), 11 and 22). Broadly, the remaining grounds were grouped by the appellant into the following categories.

59. First, Grounds 1-5, challenging various factual findings going to the appellant’s contention that the deceased lacked testamentary capacity to make the 2020 Will and did not intend to make the 2020 Will (or any new will).

60. Second, Grounds 6-10, going to the appellant’s contention that there was no rational basis for the deceased to disenfranchise the appellant or to find that their relationship had materially deteriorated or that the deceased’s “anger” towards the appellant was relevantly justified or rational to explain the existence of the retainer of the first respondent in relation to the making of the 2020 Will or its dispositive effect.

61. Third, Grounds 12-13, going to the appellant’s contention that Dr Lonie’s opinion that the deceased was not relevantly able to reason or capable of making the type of decision-making necessary to make the 2020 Will was not properly displaced by any lay evidence to the contrary and should have been accepted.

62. Fourth, Ground 14, that there was no evidentiary basis to find that the deceased knew and approved of the 2020 Will.

63. Fifth, as to costs, asserting error material to the primary judge’s award of costs against the appellant personally, namely: Grounds 15-17, the contention that the primary judge ought to have held that there was no challenge to the 2019 Will; and Grounds 18-21, the contention that there was appellable error in the exercise of the primary judge’s discretion in relation to the award of costs.

64. As already noted, the first respondent’s Notice of Contention goes to the issue of knowledge and approval of the 2020 Will and will be considered in the context of Ground 14.

Grounds 1-5 – Intention/Capacity to make the 2020 Will

Ground 1

1.   Ground 1. The primary judge erred in holding that Mrs Easton (whom the primary judge correctly held was suffering from Major Neurocognitive Disorder due to Vascular Dementia (Vascular Dementia) wished to make a new will in about August 2020 (PJ [77]) because:

(a)   as the primary judge correctly found, there was little evidence as to the consultation “that led to the decision by [the nursing home] Maranatha to contact a local solicitor on Mrs Easton’s behalf” accepting that one motivation was Maranatha’s “own financial position” (PJ[78]);

(b)   looking after its own financial position, Mr Doran of Maranatha encouraged Mrs Easton to replace Mrs Peacock with the NSW Trustee and Guardian despite Mrs Peacock then holding a valid Power of Attorney and Enduring Guardianship in respect of Mrs Easton (PJ[79]-[81]), where Mr Doran acknowledged that Mrs Easton was suffering from dementia (CB 1.1/157, Peacock #2, [35]);

(c)   it was senior staff of the nursing home, Maranatha, of which she was a resident, which brought about the meeting which led to the making of a new will and not something which Mrs Easton had ever independently sought to do; and

(d)   all of the contemporaneous clinical records in evidence before 22 September 2020 recorded that Maranatha’s efforts to obtain an attendance upon Mrs Easton by a solicitor was directed at organising Mrs Easton’s financial affairs and there was no mention of any ‘will making’;

(e)   Ms Giusti (the then senior manager of Maranatha) whom the primary judge (correctly) found was present on 22 September 2020 during Mr Knox’s first consultation (PJ [106], [146]) and who made no reference to any request for a will in the clinical notes made by her before that first meeting failed to give evidence at the trial; and

(f)   Mr Knox’s own recollection of the discussion at the first consultation was disclosed in cross-examination to have not conformed with the version given in his affidavit (PJ[107]), but with his less detailed file note (PJ[108]-[109]),

such that it was not open to the primary judge to have concluded that Mrs Easton had wished to make a new will until suggested by Mr Knox.

65. Ground 1 challenges what is said to be a finding (at [77]) that the deceased wished to make a new will in about August 2020. In the appellant’s submissions reference is also made in this context to what was said by his Honour at [97] and [254] (referred to above).

66. The appellant submits that, having found that the deceased was suffering from vascular dementia, it was not open to the primary judge to have concluded (beyond impermissible speculation) that the deceased wished to make a new will in about August 2020 and that this was the reason for the first respondent’s first visit to the deceased at Maranatha in September 2020. The appellant contends that the reason for the visit was that management at Maranatha was seeking to ensure that the deceased remain with the means to continue to pay nursing home fees during the COVID pandemic; and for that purpose to arrange for the solicitor’s attendance to organise the deceased’s financial affairs.

67. Before turning to the submissions on that issue, it is relevant to note what his Honour actually said at the paragraphs of the reasons here identified by the appellant.

68. At [77], his Honour was referring to contact made by either Ms Giusti or Mr Doran with OPAN in the early part of August 2020 for advice about the deceased’s issues “with current POA and legal counsel” (which led to a social worker interviewing the deceased and the suggestion to Ms Giusti or Mr Doran that a local solicitor be contacted). In that context, his Honour there recorded the evidence given by Ms Flannery that Ms Giusti had told her that OPAN was contacted for advice regarding the deceased wanting to change her will.

69. There was no finding at [77] that the deceased wished to change her will in August 2020 nor that this was the reason for the first respondent’s first visit to Maranatha. Indeed, his Honour went on at [78] to accept that one motivation for Maranatha staff arranging the first visit was Maranatha’s own financial position (which rather cuts across the appellant’s insistence that there was no difficulty with the accounts).

70. At [97], his Honour was referring to Ms Flannery’s evidence that the deceased had told her on no less than about 20 occasions in late 2020 “including in August and September” that she did not want the appellant to have anything of hers.

71. At [254], his Honour affirmed what he recorded to be a finding at [97] and [99] that in August and September 2020 the deceased had consistently expressed a desire to disinherit the appellant. The reference to [99] is a reference to a paragraph where his Honour said he accepted what Ms Flannery observed in the deceased generally during the period 2018 to the end of 2020.

72. What can be seen from these paragraphs of his Honour’s reasons is that the finding there being made was more nuanced than the appellant suggests. What his Honour was saying (which is supported by Ms Flannery’s evidence – though I note that this is itself the subject of challenge in Ground 5) was that in August and September 2020 the deceased had consistently expressed a desire to disinherit the appellant (which necessarily would have required at least the revocation of the 2019 Will and one might assume the making of a new one) (see also at [231]). In oral submissions, the appellant placed emphasis on the fact that the evidence was not that the deceased wanted to make a new will; rather that she wanted to disinherit the appellant – AT 14. I see this as a distinction without a material difference (particularly given that Dr Lonie accepted that the deceased had likely retained a sound understanding as to the nature and effect of a will – see [107]).

73. There is nothing inconsistent in the finding that the deceased had consistently expressed a wish to disinherit the appellant with the fact that the Maranatha clinical notes recorded issues about the deceased’s Power of Attorney nor with Maranatha being motivated to arrange for the management by someone other than the appellant of the deceased’s financial affairs.

74. The import of his Honour’s finding was that the deceased had expressed a wish (prior to the 22 September 2020 meeting with the first respondent) that the appellant receive nothing of hers (hence lessening any weight to be attached to the closed question being put to the deceased at the 22 September 2020 meeting as to whether she wanted to make a new will). The appellant attaches no little weight to the closed question because of the evidence by Dr Lonie as to the effect of suggestion on a person suffering from dementia.

75. In those circumstances much, if not all, of the dispute as to whether the 22 September 2020 meeting was arranged because the deceased wished to change her will falls away. However, since it occupied much focus in the submissions, I note the following.

76. The appellant takes issue with Ms Flannery’s evidence that Ms Giusti (who was not called to give evidence in the proceedings) had told her that OPAN was contacted “for advice regarding Eva wanting to change her will” in early August 2020.

77. Pausing here, it is not clear that Ms Flannery did place this conversation as occurring in “early August”. Ms Flannery certainly recalled a conversation in which she was told about contact having been made to OPAN (see her affidavit at [268]) but no time is there specified (although in context it must have been before Ms Giusti left Maranatha in September 2020). His Honour referred to the Maranatha notes recording contact in the early part of August (see [77]). As I have noted earlier, the Maranatha clinical notes record a discussion with the deceased on 13 August 2020 at which Ms Giusti advised the deceased about OPAN and record contact being made on that date. This seems to have been the basis for his Honour’s reference to contact having occurred in early August 2020. Ms Flannery’s oral evidence was not specific as to the timing of her contact with the manager at Maranatha about OPAN simply identifying this as “prior to September, so probably August”. Therefore, the appellant’s complaint appears to be based on a conflation of the evidence of Ms Flannery about contact being made with her manager about OPAN “probably” in August and the fact that the OPAN contact was on 13 August 2020 (the attendance by OPAN being on 24 August 2020).

78. In any event, the appellant’s complaint is that the timing (i.e., of Ms Flannery having been told that OPAN was contacted in early August 2020) is “out of sequence”. The appellant points out that the conversation that Ms Flannery had with Ms Giusti was in the context of a “handover” by Ms Giusti, who was leaving her position at Maranatha and who the appellant says was concerned to ensure that arrangements be made for the first respondent to return with the draft will. The appellant also emphasises that OPAN was contacted about advice for the deceased’s concern with revocation of the Power of Attorney and referral to the Public Trustee.

65. The appellant also points out that in cross-examination Ms Flannery accepted that she did not have any first-hand knowledge as to the reason why the first respondent first came to attend upon the deceased; that Ms Giusti’s clinical notes made before that meeting made no reference to any request for a will; and that the first respondent’s evidence was that he did not know before the meeting the scope of what he would be asked to do.

66. Insofar as the respondents, in their submissions, refer to Ms Flannery’s evidence that the deceased recalled that she had given instructions to the first respondent to change her will and said to her on 11 November 2020 that she would like to finalise her will, the appellant notes that, although having no recollection, Ms Flannery accepted in cross-examination that it was possible that she had prompted the deceased immediately prior to the 19 November meeting (at which the 2020 Will was executed) that the first respondent was returning to do her will (and had had a discussion about it).

67. I accept that the documentary evidence (the Maranatha clinical notes and the record of the contact made with OPAN) support the conclusion that the reason Maranatha contacted the first respondent was for advice or assistance in relation to the management of the deceased’s financial affairs (consistent with the deceased’s recorded concerns about the Power of Attorney). Apart from the electronic diary entry recording the meeting, inter alia, as for a new will, I accept that there is nothing that indicates that the first respondent was asked to attend the deceased because she wanted to make a new will. As to that electronic diary entry, to which the primary judge attached some weight, the difficulty I see with this is that it is not clear whether that was some form of standard or pro forma category of consultation used to encompass such attendances without particular reference to which one or more of the matters there identified was to be discussed.

68. However, I cannot accept that his Honour erred in finding that the deceased had expressed a desire to disinherit the appellant prior to the September 2020 meeting. Ms Flannery’s evidence of multiple conversations to that effect during the 2020 period (which, by reference to her affidavit at [19] must have been in the period from August to December 2020) was accepted by the primary judge, who had the opportunity to assess Ms Flannery as a witness and found her to be generally reliable. It was not put to Ms Flannery that the conversations did not occur or could not have occurred before the 22 September 2020 meeting. Therefore, I cannot accept the proposition in Ground 1(f) to the effect that it was not open to his Honour (on the balance of probabilities) to have concluded that the deceased had wished to make a new will (i.e., to disinherit the appellant) before that was suggested to her by the first respondent’s closed question at the 22 September 2020 meeting.

69. Ground 1 is not made good.

Ground 2

2   Ground 2. The primary judge ought to have held - during the COVID lockdown period - that in and from May [as amended in oral submissions to delete reference to August] 2020 and thereafter:

(a)   the management of the nursing home Maranatha:

(i)   despite recognising Mrs Easton’s vulnerability, determined to obtain the means by which Mrs Easton could continue to pay its monthly fees without the need to rely on Mrs Peacock, despite Mrs Peacock being ready, willing, and able to make those payments at all material times;

(ii)   excluded Mrs Peacock from interactions with Mrs Easton beyond discussions concerning the replacement of the former with the NSW Trustee and Guardian; and

(iii)   arranged for the visit by the first respondent (Mr Knox) to provide Mrs Easton with advice in relation to making a fresh Power of Attorney (which it intended would desirably be held by Mr Knox), but thereafter mistakenly permitted Mr Knox to make a new will which excluded her only remaining friend, where the objective contemporaneous evidence (including after the event) demonstrated that Mrs Easton did not understand what she was doing or the consequences of her actions;

(b)   [deleted]

(c)   [deleted]

84. Ground 2 in substance takes the matter no further than Ground 1, since the thrust of this ground goes to the explanation for the making of the appointment with the first respondent to attend the deceased on 22 September 2020 and the contention that it was the first respondent who first suggested the making of a new will to the deceased. The appellant describes Ground 2 as providing a cogent explanation (not considered by the primary judge) as to how the first respondent came to be present at Maranatha despite the deceased in fact having the means (through the valid Power of Attorney she had granted to the appellant) to manage her financial affairs.

85. At the hearing of the appeal, the appellant abandoned Grounds 2(b)-(c) (which included assertions that there was no rational basis for the deceased to replace the Power of Attorney and no rational basis to make the new will), although the appellant in her written submissions had relied on those matters as contemporaneous evidence that the deceased did not understand what she was doing or the consequences of her actions (AT 31-32). Accordingly, I do not address the written submissions made by the parties in relation to those (no longer pressed) grounds.

86. The thrust of the submission in relation to Ground 2(a) appears to be to cast aspersions on Maranatha staff (in particular), the appellant arguing that the only available inference (in circumstances where the evidence demonstrated that during COVID Mr Doran was able to arrange meetings outdoors with the appellant and the deceased) is that Mr Doran (who did not give evidence) desired that the appellant be excluded (from management of the deceased’s finances) and arranged for the visit by Mr Knox to provide the deceased with advice in relation to making a fresh Power of Attorney. The appellant contends that the staff thereafter “mistakenly permitted” the first respondent to make a new will which excluded her (the deceased’s “only remaining friend”).

87. As explained in relation to Ground 1, I do not accept that the fact that Maranatha staff arranged for the first respondent to visit the deceased on 22 September 2020 (for the purposes of arranging a new Power of Attorney to enable what Maranatha management clearly saw as difficulties in the management of the deceased’s finances) establishes that the deceased lacked the intention to make a new will. Further, the suggestion that Maranatha staff “mistakenly permitted” the first respondent to prepare a new will implies that the staff at Maranatha had some control over what instructions could be given by the deceased to the first respondent or how the first respondent was to act in relation to those instructions. That seems to me to be an extraordinary suggestion. Subject to her having testamentary capacity (that being one of the very issues here in dispute) the deceased could give whatever instructions she wished to the first respondent (or any other lawyer she might have retained). All the Maranatha staff did was to make the arrangements whereby the first respondent came to take those instructions from the deceased.

88. As to the asserted “exclusion” of the appellant, as already noted it was the appellant’s own decision not to obtain a flu vaccination that caused her inability to visit the deceased at Maranatha (other than in an outdoors setting), at least during those times where there was not an absolute lockdown of the facility irrespective of vaccination status; and, as the respondents submit, there was no obligation on the part of Maranatha (or right on the appellant’s part) for the appellant to be included in discussions concerning the replacement of the Power of Attorney or otherwise.

89. As to the evidence of subsequent events (such as the evidence that, after the making of the 2020 Will, the deceased was unable to explain the nature of the event on 22 September 2020 and a further three days later still indicated her dependence on the appellant), these are dealt with in Ground 9.

90. As the respondents point out, the contemporaneous Maranatha clinical notes contain numerous references to concern by the deceased as to her finances or as to her Power of Attorney (see the entries for 22 May 2020, 28 May 2020, 16 June 2020, 1 July 2020 and 17 July 2020), which contradicts any suggestion that concerns about the appellant’s role as attorney originated with Maranatha staff. In those circumstances, the complaint that Maranatha “excluded” the appellant from the discussions goes nowhere.

91. I accept that it was the staff at Maranatha who arranged the appointment with the first respondent at which instructions were given in relation to the Power of Attorney and, as his Honour found, the motivation for this on Maranatha’s part was to overcome perceived difficulties with the management of the deceased’s finances. I do not accept that this in any way demonstrates that the deceased did not understand what she was doing, or the consequences of her actions in relation to removal of the appellant as her attorney.

92. Ground 2 is not made good.

Grounds 3 and 4

93. It is convenient to deal with Grounds 3 and 4 together.

3   Ground 3. The primary judge ought to have held that the evidence of Dr Lonie (PJ[255]-[265]) (coupled with the primary clinical records and first-hand evidence on which Dr Lonie relied to reach her conclusions (being both before, during, and after November 2020)) required him to conclude that by reason of the nature and symptoms of her vascular dementia, Mrs Easton:

(a)   lacked capacity (in the sense of requisite understanding) to make a will in September or November 2020;

(b)   was incapable of forming sufficient knowledge and approval with respect to the 2020 Will and further was incapable of relevantly understanding what she was doing and its effect;

(c)   was confused as to her finances and had had her mind poisoned against her only available friend, Mrs Peacock, such that her proposed disposition of her assets to the second respondent (the Sydney Opera House Trust) was irrational; and

(d)   was labouring under a mistaken belief that Mrs Peacock was not willing (or able) to help Mrs Easton.

4   Ground 4. Further or alternatively, having regard to the primary judge’s correctly finding that Mrs Easton was affected by Vascular Dementia, the primary judge erred in giving very little (or no) weight to the opinions expressed by the joint expert, Dr Lonie, based upon the clinical record keeping material and other evidence (such as from Mrs Peacock) and Dr Lonie’s contextualisation of the evidence given by each of Mr Knox, Dr Langley, and Ms Flannery, which established, on a principled basis, that their limited ‘observations’ were incapable of demonstrating capacity at the time at which the 2020 Will was made: contra PJ[296], [297], [301].

94. Grounds 3 and 4 relate to the primary judge’s conclusions in relation to Dr Lonie’s evidence ([246]-[265], principally those at [255]-[265]). The appellant, in reply submissions, explains that the contention in Ground 3 that the primary judge was “required” to make the conclusions there set out is “reflective of the fact that the cases there cited by the respondents do not authorise the tribunal of fact to ignore compelling evidence which demonstrates that any such lay observations (given their limited scope) were unable to detect the presence of [the deceased’s] condition or to seek to establish (if that were by then possible) her capacity to make a will or the exercise of her knowledge and approval”. If this be understood as a submission that the evidence of Dr Lonie was compelling, then it would have been better so framed. The suggestion that the primary judge was “required” (in the sense of obliged) to accept expert evidence even if that be unchallenged cannot be accepted (see Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [245]-[247]).

95. Insofar as the appellant cavils with perceived criticism by the primary judge that Dr Lonie had undue regard to the views of the appellant, this appears to be a reference to what his Honour said at [230], namely that “[h]ere again Dr Lonie appears to have had particular and, in my view undue, regard to Mrs Peacock’s account of why the appointment was made”. This points to the caution appropriately to be exercised in accepting at first blush the appellant’s account of events in assessing the deceased’s capacity.

96. His Honour made clear that Dr Lonie had conducted a thorough review of the medical and lay evidence and that her reports were thorough and clearly reasoned ([211]). In this regard, I note that Dr Lonie’s observations about the key medical and lay evidence appear to treat the pleading as evidence, rather than (as Senior Counsel for the appellant accepts a pleading is) simply assertion, i.e., matters to be proven at the hearing (see AT 20).

97. Complaint is made by the appellant that his Honour selectively, and erroneously, summarised Dr Lonie’s conclusions (at [211]-[214]). In that regard, the appellant complains that the primary judge omitted the “unchallenged” conclusions Dr Lonie reached at [17]-[19], [113] and [124] of her first report. Those references are to the following: that the evidence suggested that by September 2020 the deceased was no longer in a position, cognitively speaking, fully to comprehend and evaluate in order to decide the options available to her with respect to managing her financial affairs ([17]); that the deceased had lost insight into her cognitive and functional limitations ([18]); that the deceased lacked, at the relevant times, the ability to judge and appraise significant others in the process of weighing up the claims on her estate, as a result of the combined effects of her impaired, memory, reasoning ability and loss of insight ([19]); and that the deceased may not have retained an understanding of the overall value of her assets at the times she gave instructions for the 2020 Will ([113]). Also said to have been selectively and erroneously “omitted” are Dr Lonie’s recording that: the appellant did not understand why the deceased had ceased communications with her; the first respondent had in a file note expressed uncertainty as to why the deceased wished to disinherit the appellant; the deceased and appellant resumed “open, friendly and unrestricted communications”; the deceased seemed unable to remember or understand that the Public Trustee was managing her financial affairs; and the appellant expressed concerns to Maranatha staff regarding the deceased’s mental capacity and ability to understand the ramifications of her decision to appoint the Public Trustee as attorney ([124]).

98. I consider this criticism to be unfair to his Honour. The primary judge made clear that what was set out at [211]-[214] was a brief statement of Dr Lonie’s opinions before his Honour proceeded to consider in more detail Dr Lonie’s first report (from [216]) and, more briefly, her supplementary report (from [236]).

99. The appellant argues that the primary judge’s conclusion that Dr Lonie expressed an opinion “on point of the will’s rationality” ([263]) materially misunderstood the focus of Dr Lonie’s evidence both in her report and testimony. The appellant says that at no time did Dr Lonie purport to assess the 2020 Will’s rationality or the reasonableness of the disposition (cf [256], [263]).

100. Pausing here, what his Honour said at [256] was that, to say that the deceased’s reasons for wanting to disinherit the appellant do not “accord with her reality” or are “irrational”, was to express a view as to how, in Dr Lonie’s view, the deceased should rationally have regarded the appellant at the time (referring as support for this observation to [129] of Dr Lonie’s first report and [32] of the supplementary report). This followed an extract from Dr Lonie’s oral evidence when explaining the difference between an ability to recall matters such as the significance of a will and the ability to form a reasoned view as to who should inherit under the will (in which extract Dr Lonie said that expressing a will and preference did not necessarily imply that someone had made a reasonably informed decision “based in an accurate reflection of their reality” or that the person understood the consequences of that decision).

101. At [259], his Honour expressly noted that Dr Lonie did not couch her opinions in terms of the irrationality of the will itself but said that her conclusions rested to a significant extent on the disjunction between the deceased’s “reality” and her perception of it. At [263] what his Honour said was that he did not accept “the premise of Dr Lonie’s opinion on point of the will’s rationality”. Properly understood, what his Honour was saying at [263] must be read with his Honour’s observation at [259] (see above), his Honour there noting Dr Lonie’s emphasis that the deceased’s perception of the appellant during the latter half of 2020 was irrational because the appellant was a good friend and that the deceased failed to see this.

102. The appellant argues that Dr Lonie’s conclusions were material to the question as to the extent of the disorder of the deceased’s mind and, in particular, the loss of her executive function and her capacity for decision-making, saying that they “represented the most cogent longitudinal and systematic reasoning in relation to the extent of the effect of vascular dementia upon [the deceased] at the time of [the first respondent’s] first involvement in late 2020”.

103. The appellant also submits that Dr Lonie provided useful contextualisation of the detailed clinical record which supported her reasoning. The appellant complains that the primary judge failed to address Dr Lonie’s opinions that the evidence given by each of Mr Knox, Dr Langley, and Ms Flannery, by reason of their limited observations, was incapable of demonstrating capacity at the time at which the 2020 Will was made (cf [296], [297], [301]).

104. In reply submissions, the appellant refers to Dr Lonie’s evidence of dementia-driven mistrust and the deceased’s inability to regulate her emotions (see the reference to her report in the primary judgment at [211]). The appellant points to the observations of the lay witnesses as to the visible signs of anxiety and mistrust that the deceased displayed. In particular, the appellant says that the first respondent’s evidence of the deceased’s agitation, visible signs of anxiety, and being teary are all confirmatory of Dr Lonie’s opinion; that the evidence of significant functional decline that Ms Flannery observed in late 2020 makes sense when the effect of Dr Lonie’s evidence is considered; and that Ms Nedwich’s evidence of confusion (as documented in her file note) and her affidavit (at [18]-[20]) is given context through Dr Lonie’s detailed analysis.

105. The appellant emphasises Dr Lonie’s evidence that the deceased’s vascular dementia did not limit the deceased’s ability to use language to communicate with others or to have semantic memory.

106. The appellant argues that the fact that Dr Lonie did not meet with the deceased does not deny her the ability to express a relevant opinion based upon contemporaneous records and her many years of training and expertise as to the extent of the progression of the deceased’s disease and its effects on her cognition in late 2020. I have no difficulty accepting that proposition but I note that this is not the basis on which the primary judge ultimately reached a different conclusion as to testamentary capacity than that expressed by Dr Lonie.

107. The appellant further argues that Dr Langley’s opinion evidence was not compelling evidence in support of a finding of capacity, referring to a number of statements made by Dr Langley that are said to support the appellant’s contentions before his Honour (as recorded in the appellant’s submissions at first instance), which statements the appellant says were “omitted” (by which I understand the appellant to mean not expressly addressed by the primary judge). In that regard, I note the primary judge certainly addressed some of the allegedly “omitted” matters: lack of expertise at [157]; “advanced dementia” note at [166]; and lack of thorough examination at [177]. His Honour considered Dr Langley’s evidence generally at [181].

220. I consider that Ground 1(b) of the Notice of Contention is made good. The process by which the first respondent took instructions as to the 2020 Will and then read out to the deceased its essential terms and confirmed with her that it accorded with her testamentary intentions amply supports the conclusion that the deceased knew and appreciated both the nature of the act of making a will and its effects; knew that her estate comprised her home and that she had two pensions and a bank account; and, most importantly, confirmed her wish that the estate go to the Sydney Opera House.

Grounds 15-17 – No challenge to 2019 Will

15   Ground 15. The primary judge erred in finding that the 2019 Will was subject to any challenge, whether to Mrs Easton’s then testamentary capacity or otherwise:

(a)   the issue formulated by the primary judge at PJ[7(2)] was not one that either party put in issue;

(b) in the Court below, the only ‘competition’ between the 2020 Will and the 2019 Will was the validity of the 2020 Will by reason of the operation of s 11(1)(c) of the Succession Act 2006 (NSW);

(c)   it is axiomatic that a will meeting the formal requirements is presumed to be duly executed: Re Estate of Paul Francis Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 at [14]: accordingly, the presumptions of testamentary intention, of testamentary capacity and of the testator’s knowledge and approval of the contents of the will, which arise when a will is rational on its face and is duly executed applied to the 2019 Will;

(d)   further, the primary judge’s reasoning based on Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 at [47] was erroneous and inapplicable to the facts below (here, unlike Carr, there was no dispute between the parties): contra PJ[14], [292]; and

(e)   further there was no challenge to the 2019 Will on any basis, such that would require Mrs Peacock to bring forward any evidence to address those matters.

16   Ground 16. Further or alternatively, the primary judge ought to have held that there was no issue raised about the capacity of Mrs Easton to make the 2019 Will (or any other issue) having regard to the parties’ pleaded case and the prior conduct of the matter as noted in the letters of instruction to the joint expert and as formalised in the orders of the Court, with the effect that if any of the appellant’s contentions as to the invalidity of the 2020 Will were made good, then the 2019 Will would proceed to a grant of probate.

17   Ground 17. It follows that the primary judge erred:

(a)   in finding that there was a requirement for Mrs Peacock to have brought forward any evidence on matters not in issues between the parties: contra PJ[298]; and

(b)   further in drawing any inferences against Mrs Peacock in the proceedings for not bringing forward evidence as to the circumstances surrounding the execution of the 2019 will, when such evidence was irrelevant and thus she had no such legal or evidentiary obligation: contra PJ[299].

221. Grounds 15-17 go to the obiter finding in respect of the 2019 Will. They arise only if the 2020 Will is not admitted to probate.

222. As to Ground 15, while it may be accepted that the issue of the deceased’s testamentary capacity at the time of the 2019 Will was not an issue pleaded by the parties, and the 2019 Will was not subject to challenge by the respondents, I do not accept that it can be said that the question of the deceased’s testamentary capacity at that time did not arise in a practical sense during the course of the proceedings (insofar as the appellant was seeking an order for admission to probate of the 2019 Will and the evidence relied upon by the appellant to challenge incapacity as at the time of the 2020 Will clearly raised a question as to the deceased’s testamentary capacity the previous year). Therefore, while the appellant in a sense is correct in challenging the primary judge’s description of this as an issue in the proceedings (at [7(2)]), I see no error in the fact that his Honour proceeded to make the observations he did as to that question.

223. As to the assertion by the appellant that, since there was no challenge to the 2019 Will, there was nothing that required her to bring forward evidence to address those matters, this ignores that (as I explain below), while there are presumptions that arise where a will has been duly executed and is rational on its face, no grant of probate is made as of right (and hence if a judge before whom an application for a grant of probate is made considers that a question has arisen as to the deceased’s testamentary capacity then that judge must be affirmatively satisfied as to that issue). Thus, it is not a question as to whether there was some legal obligation on the appellant to bring forward evidence of capacity; rather, there was a forensic risk for the appellant in not adducing evidence as to capacity as at 2019 in circumstances where she was seeking probate of the 2019 Will.

224. Ground 15 is not made good.

225. Further or in the alternative to Ground 15, the appellant contends by Ground 16 that the primary judge ought to have held that there was no issue raised about the capacity of the deceased to make the 2019 Will, having regard to the parties’ pleaded cases and the prior conduct of the matter as noted in the letters of instruction to the joint expert and as formalised in the orders of the Court (referring to the framing of the questions which confined considerations of testamentary capacity to the 2020 Will). The appellant argues that the effect of this was that, if any of the appellant’s contentions as to the invalidity of the 2020 Will were made good, then the 2019 Will should proceed to a grant of probate.

226. The appellant challenges the primary judge’s observation at [297] that, if he were wrong about the weight to be given as to the evidence relied upon by the appellant to contend that the deceased lacked capacity to make the 2020 Will, then the evidence of Dr Lonie would be a strong basis to conclude that the deceased lacked capacity to make a will from much earlier than May 2019. The appellant says that Dr Lonie expressed no opinion about the deceased’s capacity to make a will in 2019.

227. The appellant also takes issue with the statement by his Honour (at [293]) that Dr Lonie had said in oral testimony that, in her view, the deceased had been suffering from “major cognitive impairment since 2017”. At [292], his Honour had commented that the evidence led in relation to the capacity to make the 2020 Will gave rise to a question whether the deceased had capacity 18 months earlier, i.e., when the 2019 Will was made.

228. The appellant notes that, in her oral testimony, Dr Lonie referred to a nursing home “physio’s entry” in 2017 that recorded concerns at that point of what was described as moderate cognitive impairment. Dr Lonie was there summarising the medical evidence. The appellant complains that Dr Lonie did not express the opinion attributed to her (referencing Dr Lonie’s first report at line 8). Relevantly, however, when asked as to the probability that the deceased did not have cognitive function as at 29 May 2019, Dr Lonie said that it was “indisputable from the medical evidence that there are serious concerns around [the deceased’s] cognition in 2017”. Accordingly, while the statement at [293] may have overstated Dr Lonie’s testimony, it cannot be disputed that Dr Lonie accepted from the contemporaneous medical evidence that there were serious concerns about cognition prior to 2019.

229. I have already addressed the fact that there was no pleaded case contesting the testamentary capacity of the deceased as at the time of the 2019 Will. For the reasons above, that would not have compelled the primary judge to admit the 2019 Will had his Honour concluded that there was no capacity as at 2020. For similar reasons, I do not accept that the fact that the parties jointly instructed the expert, Dr Lonie, only as to the issues of capacity/knowledge and approval in relation to the 2020 Will (with instructions as formalised by Hallen J’s orders) compelled the primary judge to admit the 2019 Will to probate if the 2020 Will was found to be invalid. Indeed, Dr Lonie herself, in oral testimony, said that the issue as to capacity as at 2019 had occurred to her and, contrary to the appellant’s submissions, Dr Lonie did express (albeit briefly) her view on that issue (see the transcript referred to above).

230. Ground 16 is not made good.

231. As to Ground 17, the appellant accepts that this ground depended on her succeeding on Ground 15 or Ground 16 (and hence in light of my conclusions above this will not arise). Nevertheless, I note that in the context of this ground, the appellant argues that the primary judge erred in finding that there was a requirement for her to have brought forward any evidence on matters not in issue between the parties (cf [298]). The appellant submits that such evidence was irrelevant and thus she had no such legal or evidentiary obligation. I have already addressed this above but in fairness to his Honour I note that at [298] he made no finding that there was a requirement for the appellant to bring forward such evidence; rather, his Honour simply noted that the appellant would have been in a position to do so (by calling her solicitor in these proceedings, who had taken instructions and witnessed the 2019 Will) to give direct evidence as to the circumstances in which the 2019 Will was executed. Nor can I accept that such evidence was irrelevant once it was appreciated that incapacity as at 2020 might raise doubt as to the issue of capacity in 2019.

232. As to the complaint by the appellant that his Honour erred in drawing any inferences against her in the proceedings for not bringing forward evidence as to the circumstances surrounding the execution of the 2019 Will (the appellant here referring to his Honour’s reasons at [299]), no such adverse inference was drawn at [299]. (For completeness I note that at [303] his Honour said that he would have inferred that Ms Park’s evidence – the reference to Ms Burke being a plain typographical error – would not have assisted the appellant.)

233. What his Honour set out at [299] was the response by Senior Counsel for the appellant to his Honour’s suggestion during submissions at the hearing that one available inference was that Ms Park’s evidence would not have assisted the appellant’s case in relation to either of the issues his Honour had identified at [7]. The appellant’s response, as noted at [299], was that: should the Court have any concern as to capacity at the time of the 2019 Will, the appropriate course would be for that to be determined separately; that the decision not to call Ms Park was made in circumstances where it was assumed that the question of capacity to make the 2019 Will could be dealt with separately; and (though there was no suggestion that this was in evidence) that Ms Park had kept a file note of her consultation with the deceased at the time of making the 2019 Will.

234. His Honour expressly put the appellant on notice as to the issue of the 2019 Will on the first day of the hearing. It cannot be said that the appellant did not have the opportunity to address that issue during the course of the hearing. As the respondents note, the appellant did not seek leave to adduce evidence until the final day of the hearing, after evidence had closed.

235. His Honour noted at [299] that application was made at the close of the oral submissions for the question of capacity to make the 2019 Will to be determined as a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the event that it was necessary to determine it. His Honour noted that, given his primary conclusion (as to the 2020 Will) it was not necessary to deal with that application. (Nor, on my conclusions as to the above appeal grounds, would it now arise.) However, his Honour explained at [300], why he would not have acceded to that application, pointing out (correctly in my opinion) that the fact that no party contended for the conclusion that the deceased lacked capacity to make the 2019 Will would not have relieved the appellant (who, as I have noted, was seeking to have it admitted to probate in solemn form) from the need to persuade him that the deceased had capacity at that time in light of the evidence otherwise before his Honour.

236. In reply submissions in relation to Grounds 15-17, the appellant submits that the validity of the 2019 Will is plain on its face and hence the presumption of validity (Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 (Shorter v Hodges) at 709) applies absent challenge to its validity; and argues that, where the original of the 2019 Will and the affidavit of the executor had already been filed with the Court, any outstanding procedural matters ought to have been dealt with by ancillary orders or requisition from the probate registry; alternatively, that the matter should have been sent to the probate registry for a grant in common form. That, to my mind, misses the point. A doubt having arisen in the primary judge’s mind as to testamentary capacity as at 2019 cannot be fairly described as an “outstanding procedural matter”.

237. At [301], his Honour said, in effect, that this was not a case where capacity could be presumed from the due execution of a will that was rational on its face; rather, the evidence of Dr Lonie on the question of capacity as at 2020 at least gave rise to doubt as to capacity as at 2019. I agree.

238. For completeness, I note the authorities referred to by the respondents for the propositions that a grant of probate or administration is a public act; that no grant is made as of right (citing Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [292]); and that an order for a grant will not be made merely because parties have agreed that one should be made (Phillpot v Olney [2004] NSWSC 592 at [7]) or because the application is unopposed (Re Dowling [2013] NSWSC 1040 at [25]) or because the parties interested in an estate have consented thereto (see Smith v Smith; Estate of Smith [2007] NSWSC 116 by Windeyer J at [34]). The respondents also invoke the observations as to the proper approach of the Court to the question of whether a testator has testamentary capacity in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 at 180 (Williams, Fullagar and Kitto JJ).

239. Ground 17 is not made good.

Grounds 18-21 – Costs

240. Finally, Grounds 18-21 go to the issue of costs.

18   Ground 18. In the premises, further or alternatively, regardless of the outcome of the foregoing grounds, the primary judge’s determination of the question of costs on 30 October 2024 ([2024] NSWSC 1372 (CJ)) nevertheless was erroneous, because his Honour:

(a)   placed primary reliance on matters which were not the subject of the dispute between the parties and thereby erroneously considered that Mrs Peacock was required to establish testamentary capacity with respect to the 2019 Will when capacity of that will was never put in issue by any party (PJ [7(2)]);

(b)   consequentially, ordered that Mrs Peacock pay the Plaintiff’s costs on the ordinary basis for the entire duration of the proceedings (CJ [50]-[56]);

(c)   whereas, on the basis of the matters the subject of appeal in part E of this Notice of Appeal, had his Honour confined his consideration to a consideration of the 2020 Will, it followed, as a matter of law, that if Mrs Easton lacked capacity to make the 2020 Will, Mrs Peacock would have succeeded in propounding the 2019 Will and she had no obligation to prove capacity with respect to the 2019 Will (contra CJ [51], [52]);

(d)   having accepted (at CJ [47] and [49]) that the evidence raised a question as to Mrs Easton’s capacity, erred in having regard to Mr Knox’s costs of the proceedings in determining that it would not be reasonable for Mrs Peacock to have her own costs satisfied out of Mrs Easton’s Estate contrary to the ‘usual’ exceptions in relation to probate cases challenging capacity or at least that Mrs Peacock should not have to bear Mr Knox’s costs of an otherwise reasonable enquiry: CJ [53]; and

(e)   failed to consider the question as to the allocation of substantial reserved costs (reserved by Lindsay J on 11 September 2023) which had been reserved by reason of Mr Knox’s failure to comply with the court-ordered timetable and preparing additional evidence after the receipt of the opinion of the jointly-appointed expert, Dr Lonie, which created substantial unnecessary additional costs to Mrs Peacock from July 2023.

19   Ground 19. The primary judge ought to have held that by reason of the evidence given by Mrs Peacock and the opinions expressed by Dr Lonie, whether or not those opinions were ultimately accepted, that it remained at all times reasonable for Mrs Peacock to have challenged the capacity of Mrs Easton to have made the 2020 Will, where:

(a)   the primary judge acknowledged that Dr Lonie’s evidence did raise questions as to Mrs Easton’s capacity in relation to the 2020 Will (CJ [48]-[49]).

(b)   Dr Lonie’s evidence confirmed Mrs Peacock’s own unchallenged observations as to Mrs Easton’s decline from October 2019;

(c)   it was never suggested that Mrs Peacock’s observations and assessment of her long-term friend’s decline was anything other than accurate and genuine;

(d)   the ground in Ground 18(c) is repeated, namely the 2019 Will was not materially in dispute; and

(e)   in any event, contrary to CJ [50], Dr Lonie did not express any opinion as to Mrs Easton’s capacity to make the 2019 Will.

20   Ground 20. In the premises, the primary judge ought to have held that given there was a genuine level of doubt about the validity of the 2020 Will, Mrs Peacock should not have to bear the costs of the plaintiff, nor should she have to bear her own costs of the proceedings; costs of her unsuccessful challenge ought be paid out of the estate: Perpetual Trustee Company Limited v Baker [1999] NSWCA 224 at [14] (Giles JA and Brownie AJA); Schwanke v Alexakis [2024] NSWCA 118 [328]-[331]; Redroff v Miegoch (Supreme Court (NSW), 22 April 1996 unreported) (cited in Johnston v Johnston [2016] NSWCA 52 at [47]).

21   Ground 21. In the premises, the primary judge erred in assuming that Mrs Peacock had made a forensic decision made on a mistaken belief that, should the issue have arisen, it would have been dealt with in some separate proceeding (CJ[51]). This is because Mrs Peacock could not have predicted that she would have had to prove Mrs Easton’s capacity in relation to the 2019 Will in the circumstances.

241. The first basis on which the appellant challenges the costs order made by the primary judge (that she pay the first respondent’s costs of the proceedings on the ordinary basis – see costs judgment at [50]-[56]) is her contention that she submits that the primary judge relied on matters which were not in fact the subject of any dispute between the parties and thereby erroneously considered that the appellant was required to establish testamentary capacity with respect to the 2019 Will (when capacity in relation to that will was never put in issue by any party ([7(2)]) or the only other interested parties) (Ground 18).

242. I have already in substance addressed the submission that the appellant, had she established a lack of capacity in relation to the 2020 Will, would have succeeded in propounding the 2019 Will and that she had no obligation to prove capacity with respect to the 2019 Will (cf costs judgment at [51], [52]).

243. The premise of the submission that the appellant would have succeeded in propounding the 2019 Will can only be that the appellant was propounding the will (which squarely contradicts the appellant’s denial that she was in fact propounding the 2019 Will (AT 60/25-37; see also appellant’s written reply at par 12 and oral submissions referred to earlier)). In submissions, the appellant sought to draw a distinction between seeking a grant of probate of the 2019 Will (which she did) and “propounding” the 2019 Will (which she maintained she did not) (referring to the relief claimed at [1]-[5], pleading at [1]-[7]). Nothing turns on any such distinction for present purposes. The concept of propounding a will is to propose or put forward a document for consideration and acceptance by the court as a valid will when applying for a grant of probate. Here, the appellant (both at first instance and in the relief claimed on appeal) was and is seeking to have the 2019 Will admitted to probate (in solemn form).

241. In any event, I do not accept that his Honour erred as to the conclusion (at [52]) that, had the appellant succeeded in her primary contention as to lack of capacity to make the 2020 Will, she would not have succeeded in propounding the 2019 Will.

242. The appellant also contends that, having accepted that the evidence raised a question as to the deceased’s capacity (see costs judgment at [47], [49]), the primary judge erred in having regard to the first respondent’s costs of the proceedings in determining that it would not be reasonable for the appellant to have her own costs satisfied out of the deceased’s estate contrary to the “usual exceptions” in relation to probate cases challenging capacity or at least that the appellant should not have to bear the first respondent’s costs of an otherwise reasonable enquiry (costs judgment at [53]). I consider this below.

243. Finally, the appellant complains that the primary judge failed to consider the question as to the allocation of substantial reserved costs (reserved by Lindsay J on 11 September 2023 by reason of the first respondent’s failure to comply with the court-ordered timetable and preparing additional evidence after the receipt of the opinion of Dr Lonie). The appellant argues that this created substantial unnecessary additional costs to her from July 2023. The appellant maintains that she should not be required to bear the extra costs incurred as a result of the respondents’ forensic choices and delay (costs which the appellant says they had earlier accepted it was appropriate for them to pay as a consequence of their actions).

244. The appellant contends (Ground 19) that, contrary to the costs order made by his Honour, the primary judge ought, in the proper exercise of his discretion, to have held that, by reason of the evidence given by the appellant and the opinions expressed by Dr Lonie (whether or not those opinions were ultimately accepted), it remained at all times reasonable for the appellant to have challenged the capacity of the deceased to have made the 2020 Will. The appellant again refers to his Honour’s acknowledgment that Dr Lonie’s evidence raises questions as to the deceased’s capacity in relation to the 2020 Will (costs judgment at [48]-[49]) and says that Dr Lonie’s evidence confirmed her (the appellant’s) own unchallenged observations as to the deceased’s decline from October 2019. The appellant submits that it was never suggested that her observations and assessment of her long-term friend’s decline were anything other than accurate and genuine. The appellant reiterates her complaint that the 2019 Will was not materially in dispute and her assertion that Dr Lonie did not express any opinion as to the deceased’s capacity to make the 2019 Will.

245. As to Ground 20, this again raises the issue of the reasonableness of the appellant in challenging the 2020 Will. The appellant contends that the primary judge ought to have held that, given there was a genuine level of doubt about the validity of the 2020 Will, she should not have to bear the costs of the plaintiff, nor should she have to bear her own costs of the proceedings; rather, that costs of her unsuccessful challenge ought be paid out of the estate (relying on the authorities cited in Ground 20).

246. Finally, as to Ground 21, the appellant contends that the primary judge erred in assuming that the appellant had made a forensic decision made on a mistaken belief that, should the issue have arisen, it would have been dealt with in some separate proceeding (costs judgment at [51]). The appellant argues that she could not have predicted that she would have had to prove the deceased’s capacity in relation to the 2019 Will in the circumstances. This ground can shortly be disposed of by reference to what his Honour was told by the appellant’s counsel (as set out at [299] of the primary judgment) as to the assumption that had been made that the question of capacity to make the 2019 Will was not in issue and the assertion that any issue that might be raised by the Court as to capacity in 2019 could be dealt with separately. On the basis of what his Honour was told, there cannot fairly be said to have been an error in the statement challenged by Ground 21. It is difficult to accept that it would come as a surprise to someone seeking the admission of a will to probate in solemn form, in the context of a challenge by that person to the deceased’s testamentary capacity to make a will the following year, that questions of capacity might be raised in the mind of the judge hearing the challenge to the later will and hence the possibility that those doubts might need to be dispelled by the person seeking probate of the earlier will.

247. The respondents point out that, in the exercise of his discretion as to costs, the primary judge: identified the considerations that may apply when exercising a discretion as to costs in a probate suit; considered the fact that the appellant had sought relief on the basis of a testamentary contract and estoppel, which was pressed during the hearing but abandoned immediately prior to final submissions (costs judgment at [44]-[45]); and considered that, even if the appellant had succeeded in her primary contention about the deceased’s lack of capacity to make the 2020 Will, then the evidence on which she relied in making her case would have also impugned the 2019 Will.

248. The respondents submit that it is relevant that the appellant made the forensic choice not to adduce evidence of the solicitor who took instructions for the 2019 Will, despite that solicitor being the solicitor on the record for the appellant in the proceedings and present at Court during the hearing (a matter to which I have already adverted). The respondents also note that his Honour also considered the size of the estate, and the impact on the estate of the costs order sought by the appellant. In reply submissions, the appellant submit that the primary judge did more than “consider the size of the estate and the impact on the estate of the costs order sought by the defendant”; rather, his Honour went further and erred in considering the amount of costs spent by the respondents when determining whether the appellant should receive her costs from the estate.

249. As to the fact that certain costs were previously reserved and not dealt with expressly by the primary judge in the costs judgment, the respondents submit that this simply means that they are to be paid and otherwise dealt with in the same way as the general costs of the proceedings (citing r 42.7 of UCPR).

250. Dealing first with the complaint as to the fact that his Honour did not separately address the question of the costs that had been reserved by Lindsay J, a matter to which reference was made in the appellant’s costs submissions at first instance, it is true that his Honour did not do so. However, the reservation of costs in relation to procedural matters during the course of preparation of matters for hearing means that those costs commonly fall into the bundle of costs to be dealt with at the conclusion of the hearing (and quite often those costs will in effect become costs in the cause). It does not necessarily bespeak error in the overall costs orders that there was no separate consideration in the costs judgment of those costs. Nor is it immediately apparent that in the scheme of things those costs should have been treated in any way differently from the balance of the costs of the hearing. The costs reserved appear to have related to the need for the preparation of a second expert report from Dr Lonie. That supplementary report was not extensive, comprising only some nine pages in length. While it would have been preferable for the primary judge to have addressed the appellant’s submissions as to those costs in the costs judgment, I am not persuaded that the fact that his Honour did not do so warrants the overall costs order being revisited.

251. I have already addressed the aspects of these grounds that raise again the complaint that capacity as to the 2019 Will was not in issue. Turning to the gravamen of the complaint (that the primary judge should not have departed from the ordinary position in relation to costs in probate cases), I consider that no error has here been shown.

252. In Shorter v Hodges at 709 (to which the primary judge referred at [35] of the costs judgment), Powell J noted that in probate litigation there are two recognised exceptions to the general principle in adversary litigation that costs follow the event and that those costs be taxed (or, in more modern costs assessment processes, assessed) on a party and party basis. Those exceptions are: first, that where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; the second being that, if the circumstances led reasonably to investigation of the document propounded, the costs may be left to be borne by those who respectively incurred them. The principles outlined by Powell J in Shorter v Hodges were repeated by Santow J in Redroff v Miegoch (Supreme Court (NSW), 22 April 1996 unreported) and in Perpetual Trustee Company Limited v Baker [1999] NSWCA 244 (Perpetual Trustee v Baker), with approval, by Giles JA and Brownie AJA. They derive from the principle stated in Re Buckton [1907] 2 Ch 406 at 414.

253. As the primary judge noted (costs judgment at [36]), in Perpetual Trustee v Baker their Honours noted that the two exceptions identified in Shorter v Hodges tended to overlap. Their Honours there made reference to what was said by Santow J in the Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), 18 June 1998, unreported) to the effect that if a testator is by his mental frailty and other circumstances in a position where the circumstances reasonably call for an investigation of the validity of the will then “in one sense the testator, though usually with no sense of blameworthy fault, has by his or her conduct caused the litigation to occur”.

254. In the present case, the primary judge appears to have accepted that the deceased’s mental frailty was at least a cause of the litigation (noting at [49] of the costs judgment that the evidence did raise a question as to the deceased’s capacity). However, his Honour clearly weighed that against the other factors to which he referred (including the fact that the appellant had maintained until the last day of the hearing claims based on a testamentary contract and promissory estoppel; and his conclusion that even if the appellant had succeeded in her primary contention she would not have succeeded in propounding the 2019 Will).

255. I am not persuaded that any House v The King (1936) 55 CLR 499; [1936] HCA 40 error has here been established. The matters to which his Honour had regard were relevant considerations. The pursuit by the appellant of alternative claims meant that this was not simply a case where a doubt as to testamentary capacity gave rise to a reasonable challenge to the 2020 Will (in respect of which it could be said the deceased was a cause of the litigation); it was the pursuit by her of claims in respect of which, in the ordinary course, it might be expected that costs would follow the event (and which were abandoned by her at the end of the hearing). In not dissimilar situations, the pursuit by an executor of proceedings largely for his or her own personal benefit may disentitle the executor to costs orders in his or her favour (see Miller v Cameron (1936) 54 CLR 572 at 578-579 (Latham CJ); [1936] HCA 13; Warton v Yeo [2015] NSWCA 115 at [78]-[80] for example).

256. The fact that evidence as to capacity in relation to the 2019 Will was not directly led by the appellant (apparently based on a forensic decision as discussed earlier) raised the spectre of further costs being incurred by the estate if that issue fell to be determined. And it was not irrelevant in my opinion for his Honour to take into account the impact on the estate of a costs order of the kind that the appellant was seeking (i.e., that the parties’ costs come out of the estate on the indemnity basis). In all the circumstances I am not persuaded that his Honour erred in finding that the pursuit by the appellant of the litigation through to finality was not reasonable.

257. Grounds 18-21 are therefore not made good.

Conclusion

261. For the reasons set out above, I consider that the appeal should be dismissed. I see no reason why costs should not follow the event (and, in the case of the first respondent, that if there is any shortfall between the costs payable by the appellant and his solicitor/client costs, that shortfall should be paid out of the estate on the indemnity basis). Accordingly, I propose the following orders:

1. Appeal dismissed with costs.

2. In the event that there is a shortfall between the costs payable by the appellant and the first respondent’s solicitor/client costs of the appeal, direct that the shortfall be paid out of the estate of the deceased on the indemnity basis.

262. ADAMSON JA: I agree with Ward P.

263. BALL JA: I agree with Ward P.

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Decision last updated: 23 July 2025