Peters v Dick & Lord

[2007] NSWSC 414

CITATION:	In the Estate of the late Ian MacLachlan; Peters v Dick & Lord [2007] NSWSC 414 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6-7 March 2007
JUDGMENT DATE :	2 May 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Bergin J
DECISION:	Testamentary capacity - Copy annotated will satisfies s 18A of the Wills, Probate and Administration Act 1898.
CATCHWORDS:	WILLS/PROBATE - Whether copy of will annotated by testator satisfies provisions of s 18A of the Wills, Probate and Administration Act 1898 - Whether testator had testamentary capacity
LEGISLATION CITED:	Guardianship Act 1987 Wills, Probate and Administration Act 1898
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Hatsatouris v Hatsatouris [2001] NSWCA 408 Pahlow-Silady v Siladi, NSWCA, 22 April 1997 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Estate of Griffith (dec’d); Easter v Griffith & Ors (1995) 217 ALR 284
PARTIES:	Douglas Peters (plaintiff) Jean Bryden Dick (first defendant) Barry Lord (second defendant)
FILE NUMBER(S):	SC 106374 of 2005
COUNSEL:	Mr L Ellison SC (plaintiff) Mr B Ralston (second defendant)
SOLICITORS:	Maclarens Lawyers (plaintiff) WP McElhone & Co (first defendant) MCG Lawyers (second defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BERGIN J

2 MAY 2007

106374/05 IN THE ESTATE OF THE LATE IAN NEIL MACLACHLAN;DOUGLAS PETERS v JEAN BRYDEN DICK & BARRY LORD

JUDGMENT

1 The plaintiff, Douglas Peters, seeks a declaration that the copy will dated 28 March 2002 (the Will) made by the deceased, Ian Neil Maclachlan, as annotated by him on 11 December 2002 (the annotated Will) is a testamentary document within the meaning of s 18A of the Wills Probate and Administration Act 1898 (the Act). The plaintiff also seeks a grant of probate of the annotated Will. The second defendant, Barry Lord (the defendant), by way of cross-claim, seeks a declaration that the Will is the last Will of the deceased and seeks a grant of probate of the Will. It is alleged in the cross-claim that the deceased did not have the testamentary capacity to make the annotated Will.

2 The estate of the deceased comprises real property and cash totalling a gross and net value of $538,162.14. This matter was heard on 6 and 7 March 2007 when Mr L Ellison SC appeared for the plaintiff and Mr B Ralston appeared for the defendant.

The Facts

3 The deceased was born in New Zealand on 14 April 1913 and died on 29 July 2004 aged 91 years. He fought in World War II, specializing in aerial photography and after the War, settled in Australia. At one stage he had his own photography business and then worked as an electrical engineer for Australian General Electric. He was later a director of the company K A Esling Pty Limited that designed and manufactured electrical control panels for various machines. He had a wide range of interests including electronics, scientific research into dowsing (the search for hidden water or minerals with a forked twig), magnetic healing, negative ion generators, the powers of homing pigeons and migrating birds and other subjects of a scientific or spiritualistic nature.

4 The deceased was a bachelor and his only relatives at the time of his death were his sister, Jean Bryden Dick (Mrs Dick), the first defendant, and her two sons and their families. At the time of his death the deceased lived in his home, a two-storey house at 1 Cowan Close, Seven Hills, of which he was the registered proprietor (the Property). He also occupied a rental property in Wentworthville for about 30 years that he used as a workshop up to 2 years prior to his death.

5 The deceased was a member, and for a time Vice President, of the Dowsers Society of New South Wales which met quarterly in the early 1980s and then monthly after 1987. The deceased attended those meetings up to about 1998. He was also an active member of The Historic Radio Society, The Vintage Telephone Society and Toastmasters. He had number of friends and numerous associates with similar interests who would attend the workshop to discuss their mutual interests. One close friend was the defendant who met the deceased in 1977. The defendant would meet the deceased at his workshop on average twice a week and they would discuss their mutual interests in mathematics, engineering and medical electronics. Although the deceased was very untidy and was a natural hoarder of items, he always presented well and had an extremely active mentality.

6 In 1983 when the plaintiff was looking for accommodation one of his friends alerted him to an advertisement for the top floor of the Property. The plaintiff moved in to the top floor soon after meeting with the deceased. There was never any lease as it was all done on a “handshake”. The Property is a two-storey house in which the deceased lived downstairs and the plaintiff lived upstairs. The deceased would leave notes for the plaintiff from time to time over the years.

7 The plaintiff claimed he first encountered the defendant in 1990. It was about 10:30pm one evening that the plaintiff heard noises downstairs and he observed the defendant with the deceased each pulling on a leather case with electrical equipment in it. The plaintiff claimed he heard the deceased say to the defendant, “give it back, leave it alone, its mine”. The defendant responded, “I can get good money for that”. When the plaintiff switched the main light on the defendant said, “I am a good friend of Ian’s”. The plaintiff claimed that at this time the deceased told the defendant to “get out”.

8 The deceased owned a car and would drive himself to the workshop on a daily basis. In June 2001 the police found the deceased at Castle Hill in a confused state. They then discovered that he was driving unlicensed and that he was driving an unregistered and uninsured car. The police took the deceased home and organised for the car to be put on a truck and delivered to his home about the same time. The police informed the plaintiff that the deceased would be charged with driving unlicensed and driving an unregistered and uninsured car. It was suggested to the plaintiff that the deceased should cease driving.

9 In late 2001 the defendant was present at the Property when Peters was also present. When the deceased left the room Peters said to Lord “by the way Ian has left me the house”. Lord responded “you can’t do that, what about his sister?”. Peters responded “well I’ve got it on paper. Its only an old house anyway and I’ve been here for 15 years”. When Lord saw the deceased subsequently he asked him why he was leaving the house to Peters and the deceased replied “what are you talking about? He’s not getting the house. That’s rubbish”.

10 In 2001 the defendant noticed that the deceased was becoming quite unkempt and that there was decaying food in the workshop which attracted mice. He also noticed that the deceased’s concentration seemed to be declining and that he would repeatedly ask the same question over a short space of time. The defendant also observed that the deceased would continuously move items back and forth from boxes in the workshop. As the deceased appeared to be declining Lord decided to take him to see his general practitioner, Dr Drever.

11 Dr Drever referred the deceased to the Westmead Geriatric Medicine Unit for a full geriatric assessment because Dr Drever was concerned about issues of safety. The defendant took the deceased to the Geriatric Day Hospital at Westmead Hospital on 11 September 2001. An occupational therapy and social work home visit occurred at the Property on 19 October 2001 and there was a similar visit to the workshop on 1 November 2001. The occupational therapist and social worker consulted with the defendant and also spoke with the deceased’s neighbours near the workshop. Both the defendant and the neighbours reported to the therapists a decline and increased confusion in the deceased.

12 On 8 November 2001 the occupational therapist and social worker reported to the Guardianship Board in terms that included the following:

Mr Maclachlan attends his electronic repair workshop in Wentworthville daily, and spends majority of his time there. He has frequented many garage sales and accumulated many different gadgets and appliances over the years.

…

Cognitive status

A brief occupational therapy cognitive assessment was conducted on 11th Sept within the geriatric day hospital.

Mr Maclachlan was otherwise oriented to time, person and place. Mr Maclachlan demonstrated impaired short term memory, both visual and verbal memory, and impaired insight into these deficits. Abstract reasoning skills and simple mathematical tasks were also impaired. Nil deficits were noted in visual – spatial or motor tasks. Doug Peters noted Mr Maclachlan has on many occasions lost his keys to the house, and has lost his way from the bus stop to his home. Mr Maclachlan has denied these instances when questioned. When visited by us at his workshop, at Wentworthville, he needed considerable prompting to remember who we were. He had no recollection of our previous, lengthy, home visit at Seven Hills. We also, on that day, had transported him to the Westmead Geriatric Day Hospital, where he spent a few hours and had lunch. Afterwards we drove him to his workshop. The neighbours to the workshop have also stated that Mr Maclachlan had lost his keys to the workshop and has become increasingly confused in the last few months.

13 The report then detailed some aspects deceased’s personal care and continued:

Doug reports “taking over” the utility bills at Seven Hills in the last couple of years due to many unpaid bills and final notices received. Barry Lord, friend, reports many unpaid bills, and with encouragement from Barry, Mr Maclachlan has been reluctant to pay certain bills, for example a traffic infringement notice. Up until recently, Mr Maclachlan was driving his own car daily to Wentworthville, even though failing two driving tests according to Barry. Mr Maclachlan has been charged with driving an unregistered and uninsured vehicle and driving whilst unlicensed. Barry has since “disabled” the car, and Mr Maclachlan has not driven since this incident. …

Home environment
Mr Maclachlan resides on the ground floor of his home – which is set up as a granny flat with self contained kitchenette and bathroom. The entire floor space, with the exception of a narrow corridor leading to the bed, is filled with piled boxes above head height, and spare pieces of electrical equipment. The fridge is turned off and is filled with clothes and linen. The bathroom is also filled with piles of boxes. The shower recess has recently been cleared of piled boxes by Doug Peters. A very narrow corridor exists that leads to the toilet. All these areas had a very musty smell/odour. Doug states the home is in need of major repairs/maintenance. For example the gutters are completely rusted and in need of replacing. With much encouragement from Doug and Barry, Mr Maclachlan has refused to consider replacing these gutters. The downstairs entranceway has recently flooded due to overflow of gutters.

Workshop environment
Mr Maclachlan leaves the key to the workshop premises in an outside place, that could be seen by the general public passing by. The neighbours to the workshop report Mr Maclachlan has on many occasions lost his keys, or has locked himself out of the workshop. They also report that he constantly walks to and from the mailbox. On one occasion they noted that he was confused about a money matter. The workshop environment is completely cluttered, with piles of boxes throughout each room and hallway. Nil shower facilities are available, only a toilet which is located in another building. The environment was observed to be a safety hazard, in terms of fire safety and risk of falls.

SUMMARY
Mr Maclachlan presents as a gentleman who wishes to retain his independence at his home and at his workshop. Mr Maclachlan demonstrated deficits in cognition, primarily in the areas of visual and verbal memory, abstract reasoning, and mathematical tasks. His home and workshop environment reflects a safety and fire hazard, and requires to be organised and cleared of boxes/electrical equipment. Mr Maclachlan also appears to be at risk of poor nutrition and financial management. A recommendation is required from the Guardianship Tribunal to ensure Mr Maclachlan’s safety and wellbeing.

14 In January 2002 the defendant accompanied the deceased to Westmead Hospital for some further tests. On 7 January 2002 Dr Mark Latt, the Geriatrics Registrar wrote a report to the Guardianship Tribunal in the following terms:

Thank you for considering Mr Maclachlan’s situation. He is an 88 year-old retired electrical engineer who was referred to me for a cognitive assessment, due to his difficulty with safe living at home. He had been experiencing gradually-progressive short-term memory loss over the last 2 to 3 years, associated with losing his way while driving in the traffic and walking on the streets. He had difficulty in coping with his meal preparation and had lost some weight as a result. According to our social worker, Mrs Gilda Salgado, he was unable to cope with cleaning and inhabited a workshop that was dangerously cluttered with piles of electrical equipment. She also expressed some concerns that he was no longer safe when he dismantled and reassembled electrical equipment as a hobby.

On examination of his cognition, he scored 24/30 on a Folstein Mini-mental State Examination with deficits in orientation to time (scoring 3/5) short-term memory (1/3) and concentration (3/5). He had difficulty with abstract thought (concrete interpretation of proverbs) and planning (unable to describe how he would pay bills or cook dinner safely). He was able to draw the clock face diagram (3/4) but was unable to place the hands correctly. He had severely limited insight into the nature and degree of his short-term memory loss and cognitive impairment.

The most likely cause of Mr Maclachlan’s cognitive deficits is Alzheimer’s-type dementia. This order is progressive and medications do not alter the prognosis or the delay of the deterioration. He would benefit from the appointment of a public guardian to handle decisions regarding his health, accommodation and finances.

15 In early 2002 the deceased informed the defendant that he wanted to change his will and that he was going “to leave everything to you. You’re the one who has been helping me”. The defendant’s evidence was that he said to the deceased; “you don’t want to do that. What about your sister and family. You’ve got other long time friends and there is the Salvation Army and other charities. I don’t want everything.”

Guardianship Tribunal Orders

16 In a subsequent conversation the deceased informed the defendant that he was going to leave something to his sister, Mrs Dick, and he thought he would also leave something to Alice Philipps and George and Margaret Griffiths. The deceased said that these people had been “helpful” to him over the years. On 18 February 2002, on the application of Gilda Salgado, the Guardianship Tribunal made a Limited Guardianship Order and a Financial Management Order under the Guardianship Act 1987. The Limited Guardianship Order was in the following terms:

1. Ian Maclachlan be placed under guardianship.

2. His guardian shall be the Public Guardian.

3. This is an order for continuing guardianship for a period of twelve months from the date of this order or until the Tribunal varies, suspends or revokes the order at an earlier date on request or at its own initiative.

4. This order is an order for limited guardianship giving the guardian custody of Ian Maclachlan to the extent necessary to carry out the functions referred to below.

5. The guardian shall have the following function in relation to Ian Maclachlan:

Services

To make decisions on his behalf concerning major services to which he should have access.

17 The Financial Management Order was in the following terms:

1. the estate of Ian Maclachlan be subject to management under the provisions of the Protected Estates Act 1983; and

2. the management of the estate of Ian Maclachlan be committed to the Protective Commissioner.

18 The Guardianship Tribunal’s Reasons for Decision included the following:

Ian Maclachlan told the Tribunal that he spends most of his time at his “business premises” at Wentworthville. He told the Tribunal that he does not cook in his own flat but rather has cooking facilities and other things such as telephone, radio and television at his place in Wentworthville. Mr Maclachlan acknowledged that the lease on the Wentworthville property had expired and that he had been asked by the owner to vacate as soon as possible. However, he did not appear to consider the need to make arrangements to wind up his business and vacate the premises and the difficulties. Nor did he see any difficulty with his living arrangements at his home in Seven Hills.

…

Doug Peters told the Tribunal that living in the upstairs part of Ian Maclachlan’s house at Seven Hills in a self-contained flat, he had been aware for some time that the downstairs part of the house was full to the ceiling with items Mr Maclachlan had collected over the years. However he was also aware that Mr Maclachlan was very fit and had his own routines. Those routines had been centred upon Mr Maclachlan’s daily attendance at his workshop in Seven Hills ( sic ). He had suggested to Mr Maclachlan that he could help make alternative workshop space available in the garage and garden shed of the house at Seven Hills. Doug Peters also told the Tribunal of ways in which he had assisted Mr Maclachlan from time to time around the house including clearing out the shower recess in Mr Maclachlan’s flat and doing some of his laundry. Doug Peters agreed that Mr Maclachlan would be likely to benefit, particularly, when he vacated the premises in Seven Hills ( sic ) from services which might be provided to him at home in Seven Hills to ensure adequate nutrition and safety.

19 The Tribunal then noted the lack of proximity of family members to the deceased and concluded from all the evidence that the deceased was a person in need of a guardian who would be able to make a decision on his behalf concerning services to which he should have access in order to maintain him in his home as long as possible.

Testamentary Capacity – March 2002

20 In March 2002 the deceased attended Westmead Hospital for further testing. On 12 March 2002 Dr Gail Jamieson, the Geriatric Registrar at Westmead, wrote to the deceased’s general practitioner in the following terms:

Diagnosis : Dementia-Alzheimer’s type

ALLERGIES : Nil

Medications: Nil

I was asked by one of our social workers, Mrs Gilda Salgado to review Mr Maclachlan regarding testimonary ( sic ) capacity, as he wishes to make a will. As you are aware, he was assessed by Dr Mark Latt last year and diagnosed with dementia, on the basis of a two year history of cognitive decline. He scores reasonably well on all MMSE, but he is reported to get lost on the streets when he goes out, has had difficulty attending to payment of bills, and was noted to not be attending to his personal care adequately, and to be eating poorly, with associated weight loss. On the 18th of February he was placed under a limited guardianship order and his finances were placed under the Protective Estates Office.
On review today, he was pleasant and co-operative, but rather indignant about being asked “trivial questions”. He scored 27/30 on MMSE, losing all three points for short-term recall. He did, however, have difficulty with calculations (not losing points on MMSE because he could spell world backwards), poor word generation, and during my extended conversation was quite perseverative, so there is no doubt that he has a dementia. In terms of his testimonary ( sic ) capacity, however, he is aware of what he owns, and its approximate worth, he is aware that his current will is no good as the main beneficiary is now deceased, and he has a reasonable idea of what he would like to do. I think he is quite capable of making a will at this stage of his illness, and in fact I have urged him to do it now rather than waiting in case he does deteriorate. Should you have any further questions do not hesitate to contact me at Westmead Hospital.

The Will

21 In March 2002 Mrs Dick was visiting the deceased and the defendant took her with the deceased to a firm of solicitors in Parramatta, Coleman & Greig. The deceased made the Will on 28 March 2002 which was in the following terms:

1. I REVOKE all former Wills and other testamentary dispositions heretofore made by me AND DECLARE this to be my last Will and Testament.

2. I APPOINT my friend BARRY LORD Executor and Trustee of this my Will (hereinafter called my “Trustee) BUT in the event that he is unable or unwilling to act, then I APPOINT my friend GEORGE GRIFFITHS my Trustee.

3. I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever nature and kind and wheresoever situated unto my Trustee UPON TRUST to sell call in and convert into money the said real and personal property at such time or times and in such manner as he shall think fit WITH POWER to postpone the sale calling in or conversion of the whole or any part or parts thereof during such period as he shall think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss and out of the proceeds of such sale calling in or conversion of or forming part of my said real and personal property I DIRECT my Trustee to pay all just debts, funeral and testamentary expenses and all State, Probate, Death, Federal and other duties payable in consequence of my death AND I DECLARE that no person shall be liable to make any payment to my Trustee by reason of the fact that any property which has been or may hereafter be disposed of by me and by any gift settlement or other disposition made in my lifetime or which may be vested in him or her at or after my death is included in my estate for the purposes of the assessment of any such duty as aforesaid.

4. MY Trustee shall stand possessed of the residue of the said monies and the balance for the time remaining unconverted of my residuary estate UPON TRUST;

A. a) as to thirty eight percent (38%) thereof, for the said BARRY LORD (for his own use and benefit) provided he survives me for thirty days;

b) as to four percent (4%) thereof for ALICE PHILLIPS provided she survives me for a period of thirty days;
c) as to four percent (4%) thereof for such of GEORGE GRIFFITHS and MARGARET GRIFFITHS as survives me for a period of thirty days and if more than one in equal shares as joint tenants;
d) as to six percent (6%) thereof for DOUGLAS PETERS provided he survives me for a period of thirty days;
e) as to the balance then remaining for my sister JEAN BRYDEN DICK provided she survives me for period of thirty days;

B. In the event that my sister JEAN BRYDEN DICK does not survive me for a period of thirty days, then as to the share she would have taken in my estate for such of her sons as survive me for a period of thirty days and if more than one in equal shares as joint tenants.

Protective Commission – September 2002

22 Although the Guardianship Tribunal had made orders on 18 February 2002, the first subsequent contact with the deceased was by letter from the Office of the Protective Commissioner on 4 September 2002. That letter enclosed a copy of the Financial Management Order and a form entitled “Estate Information Form”. The letter requested the deceased to return the completed form to the Office to enable the Protective Commissioner to formulate a Financial Plan to better assist the deceased with the management of his financial affairs. The letter also advised that the Commissioner had ascertained that the deceased had a bank account with the ANZ Bank at Wentworthville and that arrangements were being made to withdraw the bulk of the funds from this account and to place them into a trust account with the office of the Protective Commissioner in the deceased’s name. The letter advised that those funds would be utilised to help the deceased meet his living expenses and the outgoings on his home. That letter also included the following:

Arrangements have also been made to have your Department of Veterans Affairs service pension redirected to this Office and it is now paid into your trust account here.

Your account at the ANZ Bank has been left open

Would you please indicate the amount of financial assistance you will require on say a weekly or fortnightly basis so that arrangements can then be made to set up a regular payment to the credit of your ANZ Bank savings account to assist you with your living expenses. You should bear in mind that this Office will take responsibility for the payment of the outgoings associated with your property and all of the larger accounts. The proposed payment to you would be intended to cover your day to day living expenses and incidentals.

According to information supplied to this Office by the Guardianship Tribunal you are in your own home at 1 Cowan Close, Seven Hills and the upper portion of the property is occupied by a person known as Doug Peters. It is understood that Mr Peters has lived in your home for some considerable time and the Commissioner will need to ascertain the basis of his occupancy of the property. Would you please provide any information which you have concerning this to enable the Protective Commissioner to make an informed decision whether Mr Peters continued occupancy of the property should be put on a formal footing or whether the existing arrangements should be permitted to continue. It has also been ascertained from the Guardianship Tribunal that you are a retired engineer and apparently conducted an electrical business of sorts some time ago. It is understood that you have possession of a rented premises at Wentworthville which contains a quantity of electrical equipment and other goods belonging to you.

It would be appreciated if you would please provide any details you have regarding the tenancy of the Wentworthville property, including its address, the managing agent if any and what rental is paid.

In your reply you might also advise whether you wish to continue to store your electrical equipment or whether you would prefer the Protective Commissioner to arrange for it to be stored or sold on your behalf and the proceeds placed in your trust account here.

23 That letter concluded by informing the deceased that the Principal Estate Manager, John Cave, would be arranging for a representative to visit the deceased’s home to make an inspection to provide Mr Cave with a report in respect of its condition and what repairs were required.

24 The Estate Information Form enclosed with the letter was never returned to the Office of the Protective Commissioner, however the original copy of that letter and the Estate Information Form is in evidence (Ex A). The deceased wrote on two sections of the Form. He wrote his name and his occupation and in the section under the heading “Relatives” he wrote the words “Doug Peters next of kin”. Under the heading “Brothers and Sisters” the deceased wrote, “Doug is staying here I want Doug to own the house. Doug Peters cooks all meals and pays all bills out of his own pocket”. That was signed “Ian Mc”. There is no evidence of the date on which the deceased wrote those words on the Form.

Tidying up the workshop

25 After the Protective Commissioner was appointed the defendant attempted to get some order into the workshop at Wentworthville. It would appear from the photographic evidence (Ex 2) and the descriptions given by the defendant that this was somewhat of a challenge. The defendant would attend the workshop regularly to tidy up and organise documentation that was strewn around the workshop. During this period the deceased spent less time at the workshop than he had in the past and the defendant would sometimes be at the workshop on his own or be present at the workshop when the deceased arrived.

26 In August or September 2002 the defendant located two cheques in the deceased’s favour under a magnet on the fridge. One cheque was for $9,000 from the liquidator of Bisley Investments dated March 1999 and the other was a dividend cheque due to expire three days after the defendant found it. There were also documents evidencing loans that the deceased had made to various people that had apparently not been repaid. The defendant was still concerned for the deceased and he took him to see Dr Drever again in September 2002.

Further Medical Review – September 2002

27 On 17 September 2002 Dr Drever referred the deceased again to the Geriatric Medicine Clinic at Westmead Hospital for “review” because, as Dr Drever said, the deceased’s friends were concerned that he was deteriorating. Dr Drever did not express a medical opinion on the deceased’s condition. The deceased attended the Clinic on 19 September 2002 with the defendant and was reviewed by Dr Jamieson. In a report to Dr Drever dictated on 1 October 2002, typed on 3 October 2002 and although “sighted by” Dr Jamieson, signed by her colleague, Dr Jamieson reported on the previous history including Dr Latt’s diagnosis of dementia with a score of 24/30 on MMSE and her own earlier findings of March 2002. The report then continued:

Since that time, I understand that things have continued to be quite borderline at home. He still has his workshop as the closing down has been delayed, however his friend Mr Lord has tidied up somewhat and it is apparently much safer than it was previously. With regard to community supports, he has continued to refuse these despite the guardianship order, and there appears to be little can be done. In this respect, fortunately he does have a boarder that lives upstairs and supervises him, and is available at night time if there are difficulties. His friend, Mr Lord has bought him some herbal medication for his memory, however he often forgets to take the pill or takes multiples in one day.

On review today, Mr Maclaclan continues to have no insight into his cognitive deficits stating that he has no difficulties whatsoever and looks after himself perfectly well. He scored 23/30 on MMSE getting zero for recall. He had very poor word generation skills naming only nine animals in one minute and tended to perseverate. He also displayed quite concrete thinking and was unable to perform luria three step test.

Overall, I think there is no doubt that Mr Maclachlan has dementia with significant frontal lobe impairment, this could be consistent with Alzheimer’s disease or alternative a fronto-temporal dementia. In view of his social circumstances however, and his denial of any cognitive impairment, I do not think it is possible to give him a trial of donepezil as I think he would not be compliant with medication and it is too unsafe to give in an unsupervised manner. I think he has already proven to us with the herbal medication that he is not reliable.

I discussed him with Gilda Salgado, the social worker who continues to be involved in his case, and at this stage I do not think there are any further interventions that we can offer. As such, I have not made any further follow-up arrangements for him but will be more than happy to review him in the future if any problems arose or if you felt we could be of any assistance.

28 Dr Jamieson did not mention testamentary capacity in this report and although there was reference to the different score on MMSE Dr Jamieson did not expressly suggest that her opinion expressed in her March 2002 report in relation to the deceased’s capacity to make a will should be adjusted or withdrawn.

Mrs Dick’s disclosure – November 2002

29 In a telephone conversation in November 2002 Mrs Dick informed the plaintiff that the defendant had taken her with the deceased to Coleman & Greig’s offices in Parramatta and that the deceased had made a Will. The plaintiff’s evidence was that Mrs Dick said, “I am sorry for my deceit. You wouldn’t believe what this so and so Barry Lord has done – given himself the bulk of everything”. Subsequently Mrs Dick sent a copy of the Will to the plaintiff with a note in the following terms:

19/11/02

Dear Doug

I can’t think why I haven’t done this before. On reading the will I am appalled at the powers Barry has for himself as Ian’s Trustee. I must say I didn’t realise it at the time. I am dashing this off to the P.O. on a 10° day – we are having chilling southerly storms with hail and snow. All woollies – cap, scarf, gloves, the lot. Hope you can read this … love to you and Ian, Jean.

Workshop Meeting – 5 December 2002

30 On 5 December 2002 the defendant attended the workshop with Peter Ruehmkorff and Warren Howard who were both colleagues/friends of the deceased and members of the Dowsers Association. The meeting was arranged by the defendant with the deceased to see if Mr Ruehmkorff or Mr Howard wished to purchase any of the items or books that the deceased stored at the workshop. The three men waited for a considerable time at the workshop until the deceased appeared. It is apparent that he may have forgotten that the arrangement had been made for them to attend on that day. The deceased suggested to Mr Ruehmkorff that he should see if he could use some of “these bits” and handed him a small cardboard box with some items in it. Mr Ruehmkorff said that he may be able to sort it out for him and he put the box in his car. The deceased then became very agitated and said: “No, you can only have one thing”. Mr Ruehmkorff then gave the whole box back to the deceased. During this meeting Mr Ruehmkorff observed the deceased to loose track of what he was talking about and change from a co-operative approach to refusing to sell or dispose of any of his books.

31 Mr Howard gave evidence that the collection that the deceased had at the workshop included old but interesting books on dowsing and allied subjects, dowsing instruments, experimenting equipment, radionics machines and other items. The deceased put stickers on the radionics machines nominating a price. Mr Howard gave evidence that he said to the deceased, “these instruments are not worth this much” to which the deceased responded “that’s what I paid for them”. Mr Howard then said “Lets be realistic. They are old, out of date and not many people would want them”. The deceased then said, “that’s what I paid. That’s what I want”. Mr Howard gave affidavit evidence that as the price could not be agreed he took the goods “on consignment” and at the time he gave his affidavit evidence of 3 February 2006 only one of those items had been sold. Mr Howard claimed that the meeting or inspection of the equipment lasted in excess of two hours and on many occasions during the meeting the deceased would not complete a sentence or subject he was talking about before his speech would trail off or he would start talking about another subject. Mr Howard did not see the deceased again after this meeting.

The annotated Will – 11 December 2002

32 When the plaintiff received the copy of the Will from Mrs Dick under cover of her note dated 19 November 2002 he gave it to the deceased. The plaintiff’s evidence was that the deceased said that he did not write the Will and that he gave the deceased a pen and paper “to write down what he wanted”. The plaintiff claimed said that it took a couple of weeks for the deceased to write out what he wanted.

33 The deceased crossed out the words “Barry Lord” from paragraph 2 of the Will as extracted earlier in this judgment and inserted the words “best friend and carer Doug Peters”. The deceased initialled this amendment. Paragraph 4 of the annotated Will had handwritten changes on it initialled by the deceased so that it now reads:

4. MY Trustee shall stand possessed of the residue of the said monies and the balance for the time remaining unconverted of my residuary estate UPON TRUST;

A. a) 80% percent thereof, for the said Doug Peters (for his own use and benefit) provided he survives me for 30 days; and have absolute ownership of house at No 1 Cowan Cl, Seven Hills and be repaid all monies owning to Doug Peters.

as to 80% thereof for Doug Peters provided he survives me for a period of thirty days;
c) as to four percent (4%) thereof for such of GEORGE GRIFFITHS and MARGARET GRIFFITHS as survives me for a period of thirty days and if more than one in equal shares as joint tenants;
d) as to 80% thereof for DOUGLAS PETERS provided he survives me for a period of thirty days;
e) as to the balance then remaining for my sister JEAN BRYDEN DICK provided she survives me for period of thirty days;

B. In the event that my sister JEAN BRYDEN DICK does not survive me for a period of thirty days, then as to the share she would have taken in my estate for such of her sons as survive me for a period of thirty days and if more than one in equal shares.

34 The last two words in paragraph 4B “as joint tenants” that appeared after the words “in equal shares” were crossed out and initialled by the deceased.

Mrs Dick’s letter – 13 December 2002

35 The plaintiff gave evidence that he received a copy of Mrs Dick’s letter to the Principal Estate Manager, Mr Cave. It is apparent that Mrs Dick wrote notes on that letter to the plaintiff with a date 13 December 2002. The letter to Mr Cave was in the following terms:

Thank you for your letter bringing me up to date about the assessment of Ian with his current drawbacks. With advancing age he seems to have lost all perspective in regard to his living conditions which I know have become unspeakable. The fact that Douglas Peters looks after him, and they have been friends for years, makes his life quite tolerable at the moment. What I wonder, is the alternative? The decision to dispose of the Wentworthville premises is a good one and I hope will happen soon. If it depends on Barry Lord it may well take a very long time! Whatever eventuates I feel it would be preferable for Ian to adjust to it before shifting from 1 Cown ( sic ) Place.

This brings me of course to the question of money and the predicament of Douglas Peters. It is very good that you are in the process of selling Ian’s car and I would suggest that some of the money be advanced to Mr Peters immediately.

It upsets me very much to think that I signed Ian’s Will giving Barry Lord powers I did not realise. I know Ian is keen to change his Will but I suppose that is improbable. Have you any advice you can offer?

Barry Lord has been selling various items for Ian, he says for some time. Where is the money? He tells me it is in Ian’s account. Where is a bank statement of his assets and his Superannuation? This I gather is being handled by you yet no accounts seem to have been paid.

I know that Ian had let things get into a disgraceful mess of later years, an attitude that Barry has used to his advantage.

Thank you for your work and I hope to hear of some progress soon.

36 The notes that Mrs Dick apparently made on that letter were in the following terms:

13/12/02

Doug, copy of letter I sent to John Cave good luck. This letter will probably be referred to Ken Gulline so I’ll await a reply from him.

Love Jean

Please write Ian’s will if possible Doug it should mostly go to you money etc. You have the blessing of my family.

The plaintiff’s evidence

37 There was a degree of confusion in the plaintiff’s’ evidence in relation to the process by which the annotated Will came into his possession. The plaintiff’s affidavit evidence refers to annexures “A”, “B” and “C”. Those annexures are respectively the annotated Will (Ann “A”), a document entitled “Copy of Your Will” (Ann “B”) and an undated page of notes passing between the deceased and the plaintiff (Ann “C”).

38 Annexure “B” contained a section with typewritten words “Will dated” and a handwritten date of 28 March 2002. That date was crossed through and the deceased had written “rewritten 11/12/02” and initialled the change. There was then a note in the deceased’s handwriting in the following terms:

Doug this is my will I don’t have to consult anyone I want it this way you own house and money. Ian

We are the brickworks we are brothers

B Lord thief

I write my will trust you only

Doug

39 Annexure “C”, the one page of notes passing between the deceased and the plaintiff, was in the following terms:

To Doug
I can’t repay you for all you’ve done for me money care friendship you are my brother I give you the house 1 Cowan Seven Hills and full ownership on my passing (title). How do we make this legal Ian Mc.

Thanks mate
I don’t know how to make this legal! I’ll try and find out. I think we’ll need a solicitor & a doctor’s cert. Hope we can __ I love living here. It’s almost 19 yrs since I moved in here with you. I’ll see what we can do.
Thanks mate

Doug

Nothing rqd just change title.
Ian

40 The plaintiffs’ affidavit of 1 August 2005 included the following:

4. On 11 December 2002 Ian gave to me a document, a true copy of which is annexed hereto and marked with the letter “A”. The document was a copy of a Will dated 28 March 2002 with Ian’s handwriting altering the terms of the Will. Attached to the document marked “A” was another document, a true copy of which is annexed hereto and marked “B” on which Ian had also written.
5. Annexed hereto and marked with “C” is a true copy of a note which Ian gave to me on the same day …
6. Jean Bryden Dick (“Jean”) was Ian’s only surviving sibling and is known to me. She resides in New Zealand and during the time I lived with Ian I had several conversations with her, and in 2003 she visited Sydney and I met her.
7. After Ian gave to me the documents being annexures “A”, “B” and “C”, to the best of my recollection I sent them to Jean.
8. Barry Lord is the person named as executor named in the will dated 28 March 2002 and is known to me.
9. I recall that at about the time the Will was made in March 2002 Barry Lord took Jean and Ian to Coleman & Greig, solicitors at Parramatta, who hold the original Will. I was not present nor did I accompany them.
10. A copy of the Will was sent to Ian by Jean. Ian showed it to me during 2002 and said words to the effect “I never agreed to that”. Subsequently on 11 December 2002 Ian gave to me the documents being the annexures hereto marked with the letters “A”, “B” and “C”.

41 In an affidavit in reply sworn on 29 May 2006 the plaintiff reiterated that on 11 December 2002 the deceased gave him annexures “A”, “B” and “C”. The plaintiff’s evidence in cross-examination was a little confusing. He said that he did not see the annotated Will, and the “Copy of your Will” document prior to it being sent to Mrs Dick in New Zealand (tr 56-58). He gave evidence that Mrs Dick sent the documents back to him. He also gave evidence that the deceased did not give him the documents, that they were in a sealed envelope, and the deceased went with him to the post box and the plaintiff put the envelope in the post box. He said he did not see what was in the sealed envelope and that he saw them when Mrs Dick sent them back to him (tr 60-62). However he also said that he had an idea of what was in the envelope because Mrs Dick had telephoned him “quite distressed” (tr 61). There was no evidence of the content of the conversation with Mrs Dick on this occasion and it is not possible to know the true basis of her “distress”. The plaintiff accepted that his oral evidence appeared to be different from his evidence in his affidavit (tr 60).

Guardianship Tribunal - February 2003

42 There was a further hearing before the Guardianship Tribunal on 24 February 2003. On 27 February 2003 the Tribunal wrote to the deceased enclosing a copy of its order and reasons for decision in relation to that hearing. The only document that is in evidence relating to that hearing is entitled “Review Hearing Summary Sheet” which includes the following:

Mr Ian Maclachlan continues to reside in home in Seven Hills. During the term of the order, the Public Guardian has consented to the cleaning of Mr Maclachlan’s house and to the provision of a range of services from the Anglicare Community Options to allow him to be maintained at home. Reports indicate that Mr Maclachlan has strongly refused to accept the services that have been provided and consequently, the said services were cancelled. It is reported that his friend, Mr Doug Peters, continues to provide support and assistance with his needs. Mr Barry Lord, another friend of Mr Maclachlan said Mr Maclachlan’s mental health has deteriorated. He expressed support for the continuation of guardianship and the re-appointment of the Public Guardian.

Mr Maclachlan’s other friends, Mr George Griffiths, and his wife, Margaret, said that Mr Peters has been looking after Mr Maclachlan very well.

Mrs Wright’s visit – March 2003

43 There was evidence from Dorothy Wright who met the deceased in 1950 whilst he was on holidays on the Gold Coast and she was working in Brisbane. A friendship blossomed and by 1959 they were planning to become engaged. Mrs Wright gave evidence that “circumstances intervened” and she married her husband Jack in 1964. She and her husband remained friends of the deceased and Mrs Wright and the deceased spoke to each other regularly by phone and she visited him in 2001 and 2003.

44 In March 2001 she met with the deceased in York Street, Sydney when he informed her that he was not feeling very well. They had lunch at Darling Harbour and made arrangements to meet the following day. The deceased made contact with Mrs Wright and informed her that he was too unwell to meet with her the following day.

45 Mrs Wright gave evidence that she would telephone the deceased at his workshop in Wentworthville and that he would say from time to time that the defendant was present. On occasions when she telephoned the workshop the defendant would answer the phone and hand her onto the deceased. After the deceased ceased occupying the rented premises at Wentworthville the only way Mrs Wright could make contact with the deceased was through the defendant who had telephoned her to give her his telephone number and had subsequently advised Mrs Wright that the deceased was unwell. When she came to Australia in March 2003 she arranged for the defendant to take her to the deceased’s Property. Mrs Wright gave evidence of that meeting by way of affidavit and was cross-examined by telephone link from her home in North Wales.

46 Mrs Wright’s affidavit evidence included the following:

8. Barry parked his car at the bottom of Ian’s driveway and we were approached by a man (I now know to be Doug Peters “Doug”). Doug said to us words to the effect of: “ You can’t come in here. Ian doesn’t want to see you. You’ve got no right. Anyway the house is mine and I won’t let you in.” Barry said to Doug words to the effect of: “ No you don’t Ian owns it” . Doug then started swearing pushed Barry and started punching him knocking him to the ground. Doug said words to the effect of: “ If you don’t go I’ll call the Police” . He then appeared to punch buttons on his mobile telephone. I then said words to the effect of: “ Well if you’re ringing the Police, I’d like to talk to them” . After I said this Doug put the mobile phone in his pocket.

9. At about this time I observed Ian at the window. He appeared to recognise me and said words to the effect of: “ Come in” . I then started to walk towards the house. As I got near the door Doug said words to the effect of: “You’re not coming in. I own this house”. At this time, Ian, who was at the door, said words to the effect of: “No you don’t its mine”.

10. I continued into the house and said to Ian words to the effect of: “I wanted to see you. Barry was the only way I could get to see you”. I noticed that Doug and Barry had both come into the house and I said to Ian words to the effect of: “Can I talk to you alone”. Following which Ian said to Barry and Doug words to the effect of: “ Please leave the room. I want to talk to Dorothy privately. She’s a very old friend”.

11. Ian and I then went into a room where we talked about old times. While we were in there Doug came in on a number of occasions. Eventually I said to Ian words to the effect of: “ Ian, can’t we be on our own. Send him out of the room” . Ian then said to Doug words to the effect of: “Dorothy and I are good friends. Please leave us alone.”

12. During my discussions with Ian we had a conversation to the following effect:

I said: “ He says he owns your house ( I was referring to Doug”)


Ian said: “No he doesn’t its mine”

13. Whilst I was with Ian Doug came into the room and said words to the effect of: “I’m ringing Jean to let her know what is going on” (Jean is Ian’s sister). I asked him if I could speak to Jean and he handed me the telephone. I then had a brief telephone conversation with Jean during which she said to me words to the effect of: “ I can’t do much for Ian anymore. I’m very unhappy with his situation” .

14. I stayed talking with Ian for about an hour. He spoke little of recent events and to the best of my knowledge, recollection and belief, almost all of our conversation was limited to “old times”. He seemed forgetful and did not seem to be aware of his limitations. At one stage he said to me: “How about I take you out for dinner tomorrow night? ” Doug was in the room when Ian said this and said words to the effect of: “ He’ll forget” .

15. On a number of occasions he said words to the effect of: “People have been stealing from me“ but did not specify who or what had been stolen.

47 Mr Ellison’s (counsel for the plaintiff) cross-examination of Mrs Wright included the following (tr 80-82):

Q. The conversations that you depose to as having taken place, are you sure they took place at Mr Maclachlan’s home in March 2003.
A. Yes. What do you mean?

Q. Well you have given evidence of actual words being said by Mr Peters, by Mr Lord, by Mr Maclachlan.
A. Yes, Yes.

Q. Are you sure that your recollection is correct?
A. Absolutely. Mr Peters was very belligerent and violent, you know I do remember that and I was frightened.

…

Q. It was Mr Lord who caused upset that afternoon or evening at Mr Maclachlan’s house, wasn’t it?
A. No, it was not.

…

Q. The fact is that the conversation did not take place as you have deposed to, correct?
A. For goodness sake the conversations are exactly as I described them.

Q. The fact is Mr Peters was not being the belligerent one, it was Mr Lord, correct?
A. Mr Peters was the only belligerent person there.

Draft 2003 will

48 In July 2003 Mrs Dick and her son Alistair travelled to Australia for a Rugby match and whilst in Australia they visited the deceased. The plaintiff heard the deceased say in what he described as an angry tone “No, no, no”. When the plaintiff went downstairs he saw that the deceased had a draft will on the table in front of him (draft 2003 will). The back sheet of that draft will contains a note written by the deceased:

Doug, tell everyone to stop writing my will I’ve written what I want in my will. No-one is allowed to change my wishes you are my only family and that’s the way it will be you are my only friend I have made provisions for Jean and her people but they have had nothing to do with my life.

My humble apologies for these people’s interference it has put you in an awkward position.

Many thanks for your help and support.

You are an honest man.

Best regards Ian Mc

49 On another document which appears to be the back sheet of the Will there was a further note written by the deceased in the following terms:

Doug who wrote this. Will you assist. It’s either Jean or that part time solicitor in NZ who is charging her money and I have never met or known her or the mongrel who took my money and personal tools and property.
Doug you are my family tower of strength nursemaid tucker upper barber best only friend how can we fix this interference.

To whom it may concern I have told Doug many times my body is donated to N.S.W University. If this is not done I want Doug to arrange to have my courps ( sic) taken care of with no funeral or ceremony. Just Doug there and the least money spent.

50 The draft 2003 will that was apparently left with the deceased by Mrs Dick and her son Alistair provided for division of the estate but it is not possible to read those portions that were crossed out by the deceased. It is clear that the division was between Margaret Griffiths (her husband having by that time demised), the plaintiff and Mrs Dick with no provision for the defendant. The deceased crossed out the percentages and wrote in 4% to Margaret Griffiths, 80% to the plaintiff and 16% to Mrs Dick. He wrote:

No. Doug house and 80%
Jean 16%
Meg 4%.

51 The deceased signed this note and wrote “I write my will no one else”. At the top of the draft will he wrote the following note:

Doug, someone has change ( sic ). I want what I wrote. You get house title for you only no one else. I have provided the %s the way I want. These people have very basic contact with me. I have written what I want. This is my will and will respect it. Don’t let them change anything. Best mate and brother Ian Mc.

52 The two signatures on this draft will are that of the deceased and the plaintiff. Underneath those signatures the deceased had written “Doug will I sign this”. There are then notes from the plaintiff to the deceased:

Ian … only sign if this is exactly what you wrote and what you want. I notice you made the same changes as you did to the other will written for you by someone else. Whoever has been writing these must follow your wishes exactly (& yes we are part of the brickworks here) thanks mate Doug
Ian although we’ve both signed this, I don’t think its legal. Doug.

The Notes

53 Some of the notes, of which only some are dated, passing between the deceased and Peters are in evidence (Ex C). The notes that are dated include the following:

Sat 17 Nov.01

Doug

My humble apologies for my errors in not recognising all the services you have provided and my failure to give you detailed receipts when necessary.

My memory has not been functioning well lately and I will be getting treatment at W’mead Hosp. next week. Ian

PS keep the next two weeks rent. Will be signing house to your possession next week you deserve it.

Ian.

9-1-2002

Doug

I am quite concerned that Barry Lord has spoken to you about the house and told you things which are wrong. He likes to talk big and impress people.

I repeat that I have no intention of selling or moving out and expect to be here for the rest of my active days and for you to live here as long as you like and make any changes for improvement you consider desirable. I will contribute financially when required. Ian

54 There are three notes on which the plaintiff wrote the date they were received. Those notes were from the deceased and were as follows:

(received 18/3/02). Doug I want you to own the house how do we achieve this. You deserve it. We will discuss it over dinner. Ian.

(received 16/4/02). Doug. Barry Lord wrote my will I have no idea what he wrote can’t find the deeds to the house will demand he returns them to me so I can transfer ownership of house to you. Many thanks for dinner Ian.

(received 20/5/02) Doug. I want to alter my will you care for me. Do you know a solicitor. My memory is very poor. Many thanks for your assistance. You always help me I want you to own this house regards Ian.

55 The undated notes include the following:

Doug you must own the house you’ve paid for everything. We’ll transfer the deed today and we’ll write a cheque for money owed to you. Many thanks Ian You are too kind to me many thanks Ian

Doug will transfer title of house you. My appreciation for all you have done for me. My humble apologies due to my memory.

Doug, my humble apologies my memory is very poor now. I do appreciate all your help with my food, bills, laundry etc. I don’t know if I can repay you. You must own our home and be our trustee. You are like a brother to me. Many thanks Ian.

56 On the back of an envelope with a date stamp 17 April 2002 the following note from the deceased was written:

Sat. Doug will bequeath this house to you to compensate all your expenses. Don’t concern yourself with what Barry Lord says. He likes to big note himself. Don’t be concerned regards Ian.

57 The solicitors for the plaintiff wrote to Mrs Dick in New Zealand requesting that she forward to them the original annotated Will. Alistair Dick responded advising that no such document could be found.

Section 18A Issues

58 The plaintiff claims that the annotated Will is a testamentary document within the meaning of s 18A of the Wills Probate and Administration Act 1898 which provides:

18A(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.

(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.

59 In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA said at [56]:

It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

(a) was there a document,

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, intention that the subject document should without more on her, or his, part operate as her, or his, Will?

60 The three issues for consideration in the plaintiff’s claim in this case are: (1) whether there is a document; (2) whether the document embodies the testamentary intentions of the deceased; and (3) although the document has not been executed in accordance with statutory formality, whether it constitutes “a will of the deceased person”. There is little doubt there is a document. Mr Ralston indicated that if I am otherwise satisfied in relation to the s 18A issues in favour of the plaintiff, there is no issue taken in relation to the fact that the original of the annotated Will has apparently been lost. It is issues (2) and (3) that require consideration in the light of the claims in the cross-claim that the document does not embody the testamentary intentions of the deceased nor was it a will of the deceased because the deceased did not have testamentary capacity. There is a distinction between the second and third issues but it does not follow that the same evidence may not be relevant to both: Pahlow-Silady v Siladi, NSWCA (Gleeson CJ, Mason P and Powell JA), unreported, 22 April 1997, per Mason P at 9. In Pahlow-Silady Mason P said at 10:

It would be a mistake to regard the third element in s 18A as requiring evidence that the deceased consciously turned his or her mind to the legal formalities for will-making, or even that the deceased was aware of the legal concept known as a will. If Monsieur Jourdain could speak prose without realising it, a person may execute a document which operates as a will without realising it, provided there is the requisite “animus testandi” and the surrounding facts satisfy the formal requirements of the Wills Act or s 18A. Thus s 18A may validate a document which the deceased must have known not to have purported to be a will in the traditional sense: see In the Estate of Slavinskyj (1988) 53 SASR 221 (where the “will” was written on a plasterboard wall) and the Estate of Madzay (Powell J) unreported 25 October 1991 (where letters of administration were granted with respect of a letter which “evokes” [ sic ] my previous will … and gives you the full estate”).

…

It is well established that it is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act: see Milnes v Foden (1890) 15 DP 105 at 107, where Hannen P said:

“The true principle … appears to be that if there is proof either in the paper itself or from clear evidence … first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event that was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary. It is not necessary that the testator would intend to perform or be aware that he has performed a testamentary act”.

61 Mr Ralston submitted that a vigilant review of the evidence establishes that the deceased did not intend the annotated Will, “without more” on his part (as Powell J said in Hatsatouris v Hatsatouris), to operate as his will. It was also submitted that it is not possible to be satisfied that the deceased had the relevant intention because the plaintiff has failed to discharge the onus to prove that the deceased had testamentary capacity at the time he wrote the annotated Will.

Testamentary capacity

62 The issue is whether the deceased, although eccentric, a hoarder and suffering from some dementia was nevertheless of sound mind or whether his judgment was so affected by his dementia that he lacked the mental capacity to comprehend and appreciate the consequences of his actions in making the annotated Will.

63 In Re Estate of Griffith (dec’d); Easter v Griffith & Ors (1995) 217 ALR 284, Gleeson CJ, with whom Handley JA agreed, said at 289-291:

Where the evidence in suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439.

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or have not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight , above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.
The traditionally accepted formula for determining testamentary capacity is that stated by Sir Alexander Cockburn CJ in Banks v Goodfellow , above, at 565:
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the Act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
…
… Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
…
The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion.

Consideration

64 The evidence relied upon to establish that the deceased possessed testamentary capacity at the time he wrote the annotated Will is also relied upon to establish that he intended that it was to operate as his will. I will deal firstly with the question of the deceased’s testamentary capacity and the matters that need to be addressed in the application of the formula in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as set out in Re Estate of Griffiths in the passage from Gleeson CJ’s judgment cited above.

Did the deceased understand the nature of his act and its effects?

65 The fact that the deceased was the subject of a guardianship order does not mean that he is presumed to lack testamentary capacity at the date of making the annotated Will: Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377. There is no direct medical evidence of the deceased’s capacity to make a will in December 2002. Dr Jamieson’s report in March of that year recorded that he was “quite capable of making a will” at that stage, being at a time after the Guardianship Tribunal orders. In that report Dr Jamieson concluded that the deceased was aware of what he owned, of its approximate worth and that his then will had a problem because the main beneficiary was deceased. Dr Jamieson also found that the deceased had a reasonable idea of what he would like to do. Although reporting on him in October 2002, Dr Jamieson does not address these issues, however, on this occasion Dr Jamieson expressed “no doubt” that the deceased had dementia with “significant frontal lobe impairment”. The deceased’s score on MMSE had changed from 27/30 in March 2002 to 23/30 in September 2002. The fact that Dr Jamieson did not see fit to suggest any adjustment to or withdrawal of her opinion in the March 2002 report on the deceased’s testamentary capacity, particularly when express reference was made to that report in the October report, is to be weighed with all other evidence under consideration on this aspect of the competing claims. Dr Jamieson was not a witness in the trial and no submission was put by the defendant that she should have been called other than by inference in the general submission that the plaintiff has failed to discharge the onus of proving testamentary capacity.

66 The meeting on 5 December 2002 at the workshop suggests that the deceased was able to organise stickers to be placed on the various pieces of equipment with the price he wished his colleagues/friends to pay. The fact that he refused to agree to a different price does not seem to me to indicate that the deceased lacked insight. There could have been a number of reasons why the deceased did not wish to reduce the price of those particular items. The fact that at least one of them has since sold at that price is some indication that there was some market for them at that price, albeit perhaps a small one. The deceased’s conduct in allocating prices to the various items in the workshop was at the time that he was contemplating the annotated Will that was produced and dated 6 days later. The fact that he was allocating prices to these items suggests that he was cognisant that these items formed part of his estate.

67 The fact that the deceased wrote a note (Ann “B”) at about the time he made the annotated Will in which he stated “this is my will” and that he did not have to consult anyone and he wanted it that way, suggests that he had a consciousness of the nature of his act and effect of what he was doing. I am satisfied that when the deceased wrote in the same note that the defendant was a “thief” in contradistinction to the statement that he and the plaintiff were “brothers” the deceased understood that he was removing the defendant from his will and was giving an explanation for such removal. The later notes referred to both earlier and later in this judgment in which the deceased protests that others are trying to interfere with what he has done also evidence an understanding of what he had done and its effect. I am satisfied that he understood the nature of his act and the effect of what he was doing.

Did the deceased understand the extent of the property of which he was disposing?

68 The terms of the Will, the annotated Will and the draft 2003 will upon which the deceased wrote further notes, the notes written to the plaintiff together with the surrounding circumstances at the time they were written all assist in the consideration of this question. Although there is a repetition of the provision of 80% of the estate to the plaintiff in paragraph 4 of the annotated Will, it is explicable. The deceased could have simply removed paragraphs 4 (b) and (d). However what he chose to do instead was to delete the provision to the defendant in 4(b), and insert in its place the 80% provision to the plaintiff, making that part of paragraph (a). He also deleted the “six percent (6%)” provision to the plaintiff in (d) and increased it to the 80%. Although there is repetition, the percentages provide for 100% of the deceased’s estate.

69 It is obvious that the deceased knew that part of his estate comprised real property, being the Property. That much is clear from the notes that he wrote to the plaintiff both before and after he wrote the annotated Will in which he said he wanted the plaintiff to have the house. Indeed in the annotated Will he wrote that the plaintiff was to have “absolute ownership” of the Property. I am satisfied that the deletion of the words “as joint tenants” from paragraph 4B was an attempt to ensure that his sister or her sons had no claim on the Property. The deceased’s provision in the annotated Will that the plaintiff was to be repaid “all monies owing to him” is evidence that he understood that part of his estate comprised cash money. The notes also include reference to his cheque book and the fact that he would have to get it back from the defendant. This is further evidence of his consciousness of his bank account.

70 The observations that I have made above in relation to the deceased’s conduct at the 5 December 2002 meeting at the workshop are also relevant to this question. It demonstrates that just 6 days prior to the making of the annotated Will the deceased was aware that the equipment, books and other things in his workshop formed part of his estate and, so far as he was concerned, had particular values.

71 I am satisfied that the deceased understood that part of his estate comprised real property and that there were other aspects to his estate that could be sold and divided up between the plaintiff, his sister and his friends Mr & Mrs Griffiths.

Was the deceased able to comprehend and appreciate the claims to which he ought give effect?

72 The application of the formula stated by Sir Alexander Cockburn CJ in Banks v Goodfellow on this aspect of the deceased’s testamentary capacity requires a consideration of whether a disorder of the mind: (a) poisoned his affections; (b) perverted his sense of right; or (c) prevented the exercise of his natural faculties. The formula was expressed in the now dated language of ”insane delusions” influencing the testator to bring about a disposition that would not have occurred if the mind had been sound.

73 There are two aspects of the annotated Will that require consideration in relation to this question. The first is the reduction in the deceased’s sister’s entitlement. The second is the removal of the defendant as a beneficiary.

Reduction in the deceased’s sister’s entitlement

74 The only family members of the deceased that might fall into the category of someone who had a claim to which the deceased “ought” give effect was his sister Mrs Dick and his nephews. The evidence discloses that Mrs Dick was the beneficiary under her late husband’s will, Probate of which was granted in 1991 (Ex D). It is apparent that there were a number of assets including “many bank accounts” in respect of which Mrs Dick had received advice to consolidate.

75 It is not clear whether the deceased was aware of Mrs Dick’s financial circumstances at the time that he wrote the annotated Will but it is apparent that he gave careful consideration to the share of his estate (other than the Property) that he wished to bequeath to his sister and his nephews. The deceased’s note on the 2003 draft will refers to the fact that he had made “provisions” for his sister and her sons (referred to in the note as “Jean and her people”). The deceased then wrote, “but they have had nothing to do with my life”. This evidences a recognition that it may be suggested that he “ought” make provision for his relatives: that he provided a small percentage for them; and that he felt justified in making that particular provision because of the lack of involvement they had in his life. There is no evidence that this was the result of any delusions or that it is as a result of his dementia poisoning his affections or perverting his sense of right. I am satisfied that in this regard the deceased was able to comprehend and appreciate the claims to which he ought give effect. I am satisfied that the deceased’s conduct in this regard was perfectly reasonable.

Removal of the defendant as a beneficiary

76 There is overwhelming evidence that the deceased lived all his life surrounded by what appeared to others to be “chaos”. It is also obvious that the deceased enjoyed and took comfort from that so-called “chaos” in the workshop that he visited on a daily basis. The workshop gave him his independence and, it appears, a sense of purpose. It was only when he started to show some effects of his dementia such as losing his keys and having problems with his short-term memory that the defendant decided to intervene.

77 It is not clear when the deceased first wrote that the defendant was a “thief”, but it appears on Annexure “B”. The events at the workshop on 5 December 2002 and indeed prior to that date may have triggered such a reaction. On the one hand I accept the defendant’s evidence that he was trying to help the deceased but on the other hand it is clear that the deceased was feeling indignant and probably very vulnerable that: (a) the Protective Office was intruding into his life; (b) social workers were intruding into his home and his workshop; (c) the defendant was organising and tidying the workshop and changing it from the cluttered way in which he operated it for 30 years which had apparently been his bastion of independence.

78 Once the Guardianship Tribunal and the social workers became involved with the deceased it is probable that he linked this intrusion back to the defendant, particularly as it occurred after the defendant took the deceased to a doctor and it was the defendant who was removing items from and re-organising his workshop. A number of the deceased’s notes to the plaintiff referred to the fact that the defendant had taken his cheque book. The defendant claimed that on a visit to the workshop, apparently in November or December 2002, he was attempting to pull a book from a shelf located above his head and as he pulled the book out a container fell onto his head and then onto the floor. When the defendant opened the container he found “cash to the value of approximately $515 inside”. The defendant claimed he had the following conversation with the deceased, “some time after finding the money”:

Defendant: You’d never believe what happened the other day. I pulled this book out and a small container of money fell on my head. I had about $500 in it.

Deceased: What did you do with it?

Defendant: I banked it of course.

Deceased: And what about the rest of it?

Defendant: There wasn’t any more.

79 This conversation may also have been on the deceased’s mind when he wrote that the defendant was a thief. The reference in the note on the back of the 2003 draft will in which he suggested that the “mongrel who took my money and personal tools and property” may have been the author of that draft is probably a reference to the defendant. This evidences the deceased’s distress in having his tools taken away from him as the workshop was taken over by others. The defendant relied upon the fact that during 2002 the deceased stopped attending the workshop as regularly as he had been prior to that date to suggest that his dementia had caused him to lose this routine that he apparently enjoyed so much. The dementia might have played a part in that process but it seems to me to be far more likely that the deceased’s routine was interrupted not by reason of the dementia but by the fact that the workshop was no longer his private domain.

80 There is no suggestion of any undue influence by the plaintiff over the deceased either in the making of the annotated Will or the writing of the notes. As I have said above I am satisfied that when the deceased wrote that the defendant was a “thief” in contradistinction to the statement that he and the plaintiff were “brothers”, the deceased understood that he was removing the defendant from his will and was giving an explanation for such removal. The question arises as to whether this claim about the defendant was so unreasonable as to be explicable only on the basis that the deceased’s dementia had poisoned his affections to the point where the disposition that he made would not have been made but for the effects of his dementia. The defendant probably presented to the deceased as the agent of the ‘intruders’ and it is apparent that the defendant’s zeal in the tidying up process, although well meaning, did present to the deceased as rather brutal. He had found the money in a container and dealt with it before informing the deceased about it, which led the deceased to ask him “what about the rest of it”? When one takes into account the deceased’s advanced years and the fact that the demolition of his bastion of independence was being driven by the defendant, his reaction does not seem to me to be a poisoning of his affections by reason of his dementia but rather one that is understandable and explicable in a man of his age and eccentricities whose independence was clearly being taken away from him.

81 There is no evidence that the deceased had any “insane delusions” that influenced his will in disposing of his property. As he grew older and more eccentric the dementia made it more difficult for him to have the same type of relationships that he had with his colleagues and friends prior to the impact of the ageing process. He was labouring under the dementia at the time Dr Jamieson expressed the positive opinion in March 2002 that he had testamentary capacity. That is evidence of the fact that although a testator may suffer from dementia and although a testator may be the subject of a Guardianship Order, testamentary capacity may still be unimpaired. It will of course depend upon the facts of the particular case. It is true that the deceased’s MMSE score had declined by three points by September 2002 but there is no suggestion in the later report that he had declined to the point to lose his testamentary capacity.

82 The meeting between Mrs Wright and the deceased in 2003 suggests that at that time he was perfectly lucid although focused on more distant events. The fact that he informed Mrs Wright that he had not given the plaintiff the Property in answer to what seems to me to be a rather intrusive question, does not prove that he did not understand what he had done. This was a rather traumatic meeting and it is probable that if the deceased had informed Mrs Wright that he had given the house to the plaintiff it would have caused further conflict. The deceased may well have realised this and crafted his response to avoid further conflict.

83 The deceased was greatly assisted by the plaintiff and there is no doubt that he cooked for him and tried to care for him particularly in his declining years. He was indeed tolerant of his eccentricities. I am satisfied that the sentiment expressed in the deceased’s note to the plaintiff that they were “brothers” was a true affection and was not a perversion of his sense of right. The deceased’s decision to exclude the defendant from the annotated Will may seem harsh, but as Gleeson CJ said in Re Estate of Griffiths, at 291, “testamentary capacity is not reserved for people who are wise, fair or reasonable”. I am satisfied that the lack of provision for the defendant in the annotated Will was not as a result of a disorder of the mind poisoning the deceased’s affections or perverting his sense of right or preventing the operation of his natural faculties. The deceased was entitled to change his mind and I am satisfied that when he did and made the annotated Will he had the testamentary capacity to do so.

Section 18A Issues

84 Testamentary capacity having been established, the only remaining issue is whether the deceased intended the annotated Will to operate as his will without more on his part. Mr Ralston submitted that the reason the annotated Will was sent to New Zealand was probably to get a response from Mrs Dick as to her attitude to the reduced share that she would receive under the annotated Will. I am not satisfied that the evidence supports a finding that this was the reason that it was sent to New Zealand. The deceased wrote a note to the plaintiff informing him that Mrs Dick had the original and that the copy document was his copy. I am of the view that the deceased sent the original to his sister and gave a copy to the plaintiff. Mr Ralston submitted that the deceased knew the appropriate way in which a will was to be finalised because he had attended the solicitors, Coleman & Greig, in March 2002 when the Will was completed. That fact needs to be weighed in the circumstances of all the other evidence in relation to the making of the annotated Will.

85 In the required vigilant examination that has to take place in respect of the issues under consideration here, it is permissible to utilise statements made after the making of the subject document in reaching a conclusion as to whether the deceased intended that the annotated Will created earlier should operate, without more, as his will. In addition to the matters referred to in the analysis in relation to testamentary capacity I am of the view that the statements made by the deceased to the plaintiff in the notes that he wrote to him indicate that he did intend that the annotated Will would operate as his will, without more on his part. That includes the statement on annexure B “Copy of your Will” document in which the deceased wrote, “this is my will” together with the words “I don’t have to consult anyone I want it this way”.

86 The contents of the annotated Will with the careful initialling of the changes also suggest the deceased intended that it operate as his will. Additionally there were later statements that support such a conclusion. One of those statements appears on the back sheet to the draft 2003 will that was apparently prepared in New Zealand in which the deceased wrote, “I’ve written what I want in my will no one is allowed to change my wishes”. That note clearly referred back to the annotated Will and those words, combined with the further words in that note “I have made provisions for Jean and her people”, support the conclusion that the deceased intended the annotated Will to operate as his will. The plaintiff’s unsatisfactory evidence in relation to the way in which he came into possession of the annotated Will does not impact adversely on these findings. It is only a curiosity when looked at with the wealth of other material in the notes and surrounding circumstances that lead me to the conclusion expressed above.

Conclusion

87 I am satisfied that the deceased had the testamentary capacity to make the annotated Will. I am satisfied that the copy annotated Will is a document within the meaning of s 18A of the Wills Probate and Administration Act 1898. There will be a declaration to that effect. There will be an order for a grant of Probate of the copy annotated Will. The parties are to bring in Short Minutes of Order reflecting these findings and appropriate costs orders. The matter is listed for the filing of those Short Minutes of Order on 7 May 2007 at 9.30am.

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07/05/2007 - The word "plaintiff" replaced with "deceased" - Paragraph(s) 79