Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian - [2024] NSWSC 1503

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian [2024] NSWSC 1503
Hearing dates: 9 – 13, 16 – 17, 19, 20 September 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs.
(2)   Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 10 December 2024.
(3)   In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 10 December 2024 any submissions and supporting material, such submissions not to exceed 3 pages.
(4)   Direct the parties to provide to my Associate by no later than 5pm on 17 December 2024 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers.

Catchwords:
SUCCESSION – testamentary capacity – knowledge and approval – deceased made wills in 2021, 2019, 2018 and 2014 and a codicil in 2019 – where deceased’s brother challenges 2021, 2019 and 2018 testamentary instruments and seeks a grant of probate for the 2014 will – where deceased’s de facto partner’s interest in deceased’s estate increased under each testamentary instrument – whether deceased had testamentary capacity – where deceased was a long term alcoholic, suffering the effects of frequent falls, and was undergoing chemotherapy treatment – suggestion of issues with cognition related to Wernicke Korsakoff encephalopathy syndrome by eminent neurologist – onus on propounder of will to prove the deceased had testamentary capacity – where deceased did not have capacity to make the 2021 will – where a copy of the 2019 will should be admitted to probate
SUCCESSION – undue influence – whether 2021 or 2019 wills were made as a consequence of undue influence by de facto partner – requirement of actual coercion which must overpower the volition of the deceased – not necessary to consider undue influence in relation to 2021 will where it was found that deceased did not have testamentary capacity - no undue influence found in relation to 2019 will
SUCCESSION – claim for further provision by de facto partner – whether deceased adequately provided for the proper maintenance, support and advancement in life of claimant – where claimant has substantial personal assets – whether claimant is entitled to be maintained in the manner to which they were accustomed and expected had the deceased “not gotten cancer and died” – a large estate does not provide a basis for a blank cheque exercise
EVIDENCE – where deceased’s long term general practitioner is deceased – where deceased’s long term lawyer and drafter of testamentary instruments is deceased – where the propounder of will is an interested person – reliance placed on contemporaneous materials including medical history notes, legal file notes, email communications and lay evidence of friends and family of deceased – Court to assess the evidence as a whole to determine testamentary capacity

Legislation Cited:
Succession Act 2006 (NSW) s 59
Trustee Act 1963 (NSW) s 63

Cases Cited:
Alexander v Jansson [2010] NSWCA 176
Anderson v Yongpairojwong [2024] NSWCA 220
Banks v Goodfellow (1871) LR 5 QB 549
Bear v Bear; Jordan v Bear [2022] NSWSC 1687
Briton v Kipritidis [2015] NSWSC 1499
Chant v Curcuruto [2021] NSWSC 751
Dedakis v Deligiannis; The Estate of Rebecca Deligiannis [2024] NSWSC 1018
Dighton v Norwood [2024] NSWSC 318
Egginsv Robinson [2000] NSWCA 61
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
In the matter of Gainer Associates Pty Ltd [2024] NSWSC 1138
Lim v Lim [2023] NSWCA 84
Mekhail v Hana [2019] NSWCA 197
Nicholson v Knaggs [2009] VSC 64
Parker v Felgate (1883) 8 PD 171
Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported)
Petrovski v Nasev; The Estate of Janakievksa [2011] NSWSC 1275
Soulos v Pagones (2023) 416 ALR 181
Tobin v Ezekial (2012) 83 NSWLR 757
Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136
Van Rensburg v Adilinis [2024] NSWSC 1146
Veall v Veall (2015) 46 VR 123
Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197

Texts Cited:
Nil

Category: Principal judgment
Parties:
In proceedings 2021/00364938:
Paul Petith (Plaintiff)
New South Wales Trustee & Guardian (First Defendant)
Steven Rundle Bone (Second Defendant)
In proceedings 2022/00118624:
Steven Rundle Bone (Plaintiff)
New South Wales Trustee & Guardian (Defendant)
Representation:
Counsel:
In proceedings 2021/00364938
A Fernon SC with A Bulley (Plaintiff)
C Birtles (First Defendant)
S Chapple SC with H Morrison (Second Defendant)

In proceedings 2022/00118624
S Chapple SC with H Morrison (Plaintiff)
C Birtles (Defendant)

Solicitors:
In proceedings 2021/00364938
Shakenovsky & Associates (Plaintiff)
Keypoint Law (First Defendant)
Glass Goodwin Solicitors (Second Defendant)
In proceedings 2022/00118624
Glass Goodwin Solicitors (Plaintiff)
Keypoint Law (Defendant)

File Number(s): 2021/00364938 and 2022/00118624
Publication restriction: Nil

JUDGMENT

Introduction

These two proceedings relate to the estate of the late Gail Margaret Thelen (Gail or the Deceased) who passed away on 27 April 2021 aged 65.
Prior to her death, Gail made a number of wills, relevantly:

20 April 2021 (2021 Will);

13 December 2019 (2019 Will);

15 June 2018 (2018 Will) with a codicil dated 30 May 2019 (the Codicil); and

29 October 2014 (2014 Will).

(together, the Wills)

In proceedings 2021/00364938 (the Probate Proceedings), there is a dispute as to which of these wills should be admitted to probate. The plaintiff (Mr Petith), Gail’s brother, by a second further amended statement of claim filed 9 December 2022, seeks a declaration that a copy of the 2014 Will is the last will and testament of Gail and an order that probate be granted to the first defendant (NSWTAG) in respect of that will. Declaratory relief is also sought that Gail lacked testamentary capacity at the time of each of the subsequent Wills or did not understand them or that each was procured by way of undue influence.
The second defendant/first cross-claimant in the Probate Proceedings (Mr Bone) was the de facto partner of Gail at the time of her death. By an amended first cross-claim filed on 9 December 2022, he seeks a variety of relief:

first, an order that probate in solemn form of the 2021 Will be granted to the NSWTAG;

in the alternative, an order that probate in solemn form of the 2019 Will be granted to the NSWTAG;

in the further alternative, an order that probate in solemn form of the 2018 Will be granted to the NSWTAG; and

in the further alternative, in the event that the Court is not satisfied that the 2014 Will should be admitted to probate, an order that letters of administration of the intestate estate of Gail be granted to Mr Bone as the de facto of Gail at the time of her death.

It is also contended that if Gail died intestate, Mr Bone, as Gail’s de facto partner, is the sole beneficiary of Gail’s estate.
The first defendant/second cross-claimant in the Probate Proceedings, the NSWTAG, is the substitute executor named in the 2021 Will, the 2019 Will and the 2018 Will. By its further amended second cross-claim filed 22 December 2022, it seeks alternative relief propounding a grant of probate first in relation to the 2021 Will, then the 2019 Will, then the 2018 Will. In opening submissions, however, counsel for the NSWTAG made it clear that the NSWTAG will accept a grant of probate of whichever Will the Court admits to probate. Having regard to the expert reports of Professor Watson, the NSWTAG no longer propounds as its primary case the 2021 Will but rather contends that probate should be granted in respect of the 2019 Will.
Probate is sought to be granted to the NSWTAG as the substitute executor in circumstances where the executor named in each of the Wills, Mr John Lakos, Gail’s solicitor, survived Gail but passed away on 23 December 2021.
In proceedings 2022/00118624 (Provision Proceedings) by his summons filed 26 April 2022, Mr Bone seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) for an order for provision out of Gail’s estate. This order is only pressed if the 2021 Will is not admitted to probate.
By orders made on 8 March 2023, the NSWTAG has acted as the Court appointed administrator of the estate.
The proceedings were heard on 9 to 13, 16, 17, 19 and 20 September 2024. Mr A Fernon SC appeared with A Bulley for Mr Petith. Mr C Birtles appeared for the NSWTAG in both proceedings. Dr S Chapple SC appeared with Mr H Morrison for Mr Bone.
For the reasons set out below, a copy of the 2019 Will should be admitted to probate and Mr Bone’s claim for further provision should be dismissed. I will give the parties an opportunity to agree orders and will deal with any remaining dispute, including as to costs, on the papers.

Overview of these reasons

The central issue in these proceedings is which of the Wills should be admitted to probate, which in turn focusses attention on Gail’s cognitive state at the time of making the Wills as well as the role played by Mr Bone in the preparation of the Wills.
In Tobin v Ezekial (2012) 83 NSWLR 757 at [2], Campbell JA observed:

[2] In litigation relating to probate, certainly one, and sometimes more, of the people best able to inform the Court about facts relevant to the drafting and execution of the will are not available to give evidence…

This is one of those cases. The drafter of the Wills, being Gail’s long-standing solicitor, Mr Lakos, died in December 2021. Dr Alexander Wah Seng Lim (Dr Lim), Gail’s longstanding GP, passed away in November 2023.
The evidence also includes a number of conversations alleged to have been had with Gail. The usual principles apply when considering this evidence: see Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 at [12].
The principal witness to give evidence as to Gail’s cognitive state between 2015 and 2021 was Mr Bone, her de facto partner. His interest in Gail’s estate increased in each of the 2018 Will, the Codicil, the 2019 Will and the 2021 Will. His evidence, as a person clearly interested in the outcome of the proceedings, must be considered in that light in accordance with well-understood principles.
Given these features, the most reliable guide on the relevant matters is the body of contemporaneous documents, including medical records in relation to Gail’s repeated admissions to hospitals as well as the documents kept by the late Mr Lakos, which document his communications with Mr Bone, either on Mr Bone’s own behalf or purportedly on behalf of Gail. This material is supplemented somewhat by the observations of those who dealt with Gail from time to time.
These reasons are structured as follows:

Gail’s Assets.

Overview of the Wills.

General observations of the lay witnesses and their credibility.

The factual chronology.

Mr Bone’s financial position.

The opinions of Professor Watson.

Relevant legal principles.

Which of the Wills should be admitted to probate? Testamentary capacity and undue influence.

Mr Bone’s claim for provision.

Conclusion and orders.

Gail’s Assets

As at September 2024, the estimated gross distributable value of the estate assets is $19,400,611.37. The principal assets are a property located at Amiens Road, Clontarf, NSW (the Clontarf Property) (estimated value $12,000,000), a property located at Main Beach, Queensland (the Main Beach Property) (estimated value $2,200,000), $3,222,266.52 held in trust by the NSWTAG and $1,918,605 owed to Gail by the Werner Family Trust. The liabilities of the estate total $673,830.10, resulting in a net distributable estate of approximately $18,418,556.33 after legal fees are included.
In addition to these assets, Gail was the sole member of the Gainer Associates Superannuation Fund (the Fund). By a Binding Death Benefit Nomination signed by Gail on 20 April 2021 at the same time as she executed her 2021 Will (the Nomination), Gail had nominated the legal personal representative of her estate as the person entitled to payment of her death benefit.
Because the Nomination was not signed in the presence of two witnesses it is not binding on the trustee of the Fund. The Fund has substantial assets (exceeding $7 million), including a property at Woy Woy valued at $5,290,000.
Mr Bone sought payment of the entirety of the death benefit to him. The NSWTAG and Mr Petith sought payment of the entirety of the death benefit to the NSWTAG (so as to form part of Gail’s residuary estate).
On 26 February 2024, Gainer Associates Pty Ltd, the trustee company of the Fund (the Trustee Company), wrote notifying that it proposed to pay one third of the death benefit to Mr Bone and the remaining two thirds to the NSWTAG. The Trustee Company subsequently sought judicial advice pursuant to s 63 of the Trustee Act 1963 (NSW) and on 6 September 2024, a judge of this Court advised the Trustee Company that it would be justified in paying the death benefit in the proportions notified on 26 February 2024: see In the matter of Gainer Associates Pty Ltd [2024] NSWSC 1138.
Mr Bone indicated in final submissions through his counsel that he did not propose to contest this position and as such he will receive one third of the Fund and the estate will receive two thirds. There was some issue at the hearing as to what taxes and the like would need to be paid and as such what amounts would be received by Mr Bone and the estate. It is not necessary to resolve this issue given the value of the estate without it. The only relevance of the issue potentially concerns Mr Bone’s claim for provision and in this regard, there was no dispute that Mr Bone is likely to receive in the order of at least $2 million from the Fund. Something in the order of about $4 million will be paid to the estate and will form part of the testamentary trust.
The Werner Family Trust has net assets of approximately $2,586,137 and a liability of approximately $1.9 million to the estate. The trust deed for the Werner Family Trust cannot be located. An application for judicial advice is apparently to be brought in relation to how the fund and assets are to be distributed. It is not necessary for the purposes of these proceedings to speculate as to where these assets will end up.

The Wills

As set out above, there are four wills at issue in the proceedings. They have a similar structure. I set out the key aspects of the Wills from most recent to oldest.

The 2021 Will

The relevant clauses of the 2021 Will, dated 20 April 2021, may be summarised as follows:

appoint Mr Lakos as the executor but if he predeceases Gail, or dies before proving the 2021 Will, appoint the NSWTAG as executor (clause 2);

give to her friend, Mr Ronnie Mansfield, a legacy of $100,000 and her Volvo motor vehicle (clause 3(a));

give to Ms Erin Louise Tharpe, Mr Bone’s daughter, the sum of $100,000 (clause 3(b));

give to her sister-in-law, Mrs Patricia Anne Petith, who goes by her middle name (Anne Petith) and to Anne Petith’s daughters Elise Petith (Elise) and Chantelle Petith (Chantelle) all her womanly effects, including her personal jewellery and handbags (clause 3(c));

give to Mr Bone her Lexus motor vehicle, a legacy of $1 million, all furniture and household items, together with all paintings, sculptures and items of fine art in the Clontarf Property and Main Beach Property, a right to live for his life at the Clontarf Property or, in effect, at an alternative home using so much of the sale price of the Clontarf Property, or the rent from it, to buy/rent the alternative home. Mr Bone is required to pay for the outgoings and maintenance on the Clontarf Property or alternative home (clause 3(d));

the residue of her estate is to be held in a testamentary trust for the longer of 20 years from her death or Mr Bone’s death and the income from that trust is to be distributed three ways, payable quarterly each year – one third to the sister of her late husband, Ms Alice Quintus, one third to her brother, Mr Petith, and his wife, Anne Petith (or to Elise and Chantelle on their death) and one third to Mr Bone. If one or more classes of beneficiaries dies before the vesting date, the income is to be paid to the remaining classes (clause 4(a));

as soon as practicable following the vesting date, the assets of the Trust (inclusive of any undistributed income) are to be paid to four named charities (clause 4(b)); and

Gail acknowledged that she has considered her moral obligation to each person who is potentially an eligible person in relation to her estate and is satisfied that the benefits conferred on the beneficiaries named in the 2021 Will are fair and reasonable and satisfy her moral obligations (if any) to each of them (clause 7).

The 2019 Will

The 2019 Will, dated 13 December 2019, was similar to the 2021 Will, save that:

Mr Bone was left all paintings, sculptures and items of fine art in the Clontarf Property and the Main Beach Property (clause 3(d)(ii)); and

Mr Bone was not left a life estate. Importantly, it was in this 2019 Will that Mr Bone received one third of the income of the testamentary trust.

The 2018 Will

The 2018 Will may be summarised as follows:

a gift of $100,000 to Ronnie Ransfield (clause 3(a));

a legacy of $100,000 to Erin Louise Tharpe, “the daughter of my lucky friend Steven Rundle Bone” (clause 3(b));

a gift of her womanly effects in the same terms as the 2019 Will and 2021 Will to Anne Petith and her daughters Elise and Chantelle (clause 4); and

the residue of her estate being held in a testamentary trust to continue for 20 years from the date of her death with one half of the income distributed to Ms Quintus and one half to Mr Petith and his wife, Anne Petith, with the Trust on vesting to be distributed to four charities (clause 5).

The Codicil introduced a legacy of $1 million to Mr Bone.

The 2014 Will

The 2014 Will may be summarised as follows:

a gift of $100,000 to Ronnie Ransfield (clause 3);

a gift to Anne Petith and her daughters Elise and Chantelle of all of her personal effects and personal possessions (clause 4);

the residue of her estate to be subject to a testamentary trust to vest 20 years from her death, with the income to be split, one half to Ms Quintus and one half to Mr Petith and Anne Petith (clause 5(a)(ii)(A)); and

on vesting, the assets of the trust inclusive of income and capital must be distributed equally to six charities (clause 5(a)(ii)(B)).

Looked at from oldest to newest, the Wills maintained the same structure of particular legacies, a testamentary trust with the residuary estate after the testamentary trust comes to an end being left to various charitable institutions. The principal change in the Codicil, the 2019 Will and the 2021 Will were increases in Mr Bone’s legacy – first $1 million, then a one third share of the income of the testamentary trust and finally a portable life estate in relation to the Clontarf Property.

General observations of the witnesses and their credibility

The principal lay witness was Mr Bone. He was extensively cross-examined over nearly three days, mainly by senior counsel for Mr Petith but also by counsel for the NSWTAG in relation to his fallback claim for provision.
Mr Bone struck me as quite a determined witness who, at times, gave his evidence in a combative way. He appeared to me to have a very firm belief as to his entitlement to receive the benefits given to him under the 2021 Will, either under that will or by way of an order for provision or further provision under the Act. He was quite unwilling to compromise in any respect. As he said on several occasions, if Gail “hadn’t gotten cancer and died”, he would have continued to live quite a lavish lifestyle at Gail’s expense, either in the Clontarf Property or in a similar residence.

One example of his unwillingness to compromise concerned alternative residences available to buy or rent in or near his neighbourhood.
The principal area where Mr Bone’s evidence was really questioned in a relevant sense, concerned his alleged discussions with Gail and the extent to which the many communications which he sent to Mr Lakos, particularly in 2021 after Gail’s cancer diagnosis, were in fact discussed with Gail or were Mr Bone’s own thoughts. In some respects, Mr Bone’s oral evidence of his discussions with Gail was at odds with the emails, which causes me to be very cautious about accepting Mr Bone’s oral or affidavit evidence. One example in this regard is the alleged conversation on 12 April 2021. This was shown to be incorrect in several respects and it is also likely that there were earlier conversations which Mr Bone either could not recall or chose not to give evidence about. An associated point is the inconsistent evidence given by Mr Bone concerning when he had decided to stay in Australia.
Against this however, Mr Bone did make a number of concessions which were against his interests. One such example was his admission of drafting emails to Mr Lakos, purportedly written by Gail, on 25 November 2019, 29 November 2019 and 9 December 2019. Another is his ready acceptance that he remained in the hospital room with Gail when she made her 2021 Will.
I approach his evidence with caution appropriate to cases where interested beneficiaries give evidence of conversations with deceased persons: see Eggins v Robinson [2000] NSWCA 61 at [26] per Sheller JA; see also Chant v Curcuruto [2021] NSWSC 751 at [262]ff per Hallen J.
The evidence of the remaining witnesses for Mr Bone, being Ms Renee Emanuel and Ms Julia Hewlett, who were both working at the hospital and witnessed Gail signing her 2021 Will, Ms Quintus, Ms Patricia Pizem, a long term close friend of Gail’s, Ms Jennifer Turner, a long term friend of Gail’s who would look after the Clontarf Property while Gail was away, Bishop Robert Michael McGuckin and Mr Ronnie Ransfield, was quite limited. As was the evidence of the witnesses for Mr Petith, being Mr Petith himself, Anne Petith, Mr Wessel Wessels and Mrs Nicky Wessels, Gail’s neighbours. None were seriously challenged. No credit challenges were advanced in closing submissions.
For the most part, each was giving evidence about what they observed of Gail, either in person or over the telephone, including her behaviour when under the influence of alcohol. Where the principal issue in the case is Gail’s testamentary capacity at various particular points in time, which must involve an assessment of all relevant material at each particular time, including medical evidence of which the witnesses were largely not aware, and must address the matters relevant to testamentary capacity, only limited assistance can be gained from observations made at irregular intervals over many years and which for the most part do not deal with the particular matters relevant to capacity. That said, each of their evidence was of some assistance.
Dr Lim was Gail’s long term GP. He made an affidavit on 19 April 2022 on behalf of Mr Bone. Unfortunately, Dr Lim passed away before the hearing and was thus not available for cross-examination. I admitted his evidence over objection on the basis that I would have regard to the well-known principles applicable in this regard: Fulton v Fulton [2014] NSWSC 619 at [111] per Hallen J.
Dr Lim’s evidence went to his dealings with Gail up to her death and were to the effect that she appeared lucid, especially at the time of their last conversation which occurred over the telephone on 26 March 2021. At no time did Dr Lim administer any tests to determine her cognition as he did not consider that there was any need to do so. Dr Lim was also a visiting medical officer at Manly Waters. His affidavit asserts, in effect, that despite her heavy drinking and refusal “to go to detox”, her various falls, and later her chemotherapy – all of which Dr Lim was cognoscente of at the time – Dr Lim did not have any concerns about Gail’s mental capacity to know and understand what a will is and what her assets were and to identify, evaluate and discriminate between the claims of potential beneficiaries of her estate. Dr Lim opined that her mental capacity was wholly unaffected by any medical condition from which she suffered at the time. This cannot be correct as there were a number of cognitive assessments carried out at Manly Waters which raised concerns. This causes me to have considerable doubts as to the reliability of Dr Lim’s recollection and, having considered the totality of the evidence, I place no weight on his affidavit evidence.
The parties jointly retained Professor John Watson, a highly respected neurologist, to express various opinions on a retrospective basis as to Gail’s testamentary capacity on the dates of the Wills. Professor Watson was then cross-examined by each of the parties. The cross-examination lasted for nearly a day. The whole process of engaging Professor Watson and his cross-examination was highly efficient and of great assistance. The parties are to be commended in this regard. I was greatly assisted by Professor Watson’s evidence. However, a significant limitation on his evidence was the fact that he was not Gail’s treating doctor and his opinions on Gail and her condition were provided on a retrospective basis principally by reference to material provided to him, rather than having had the benefit of seeing and assessing Gail. As Professor Watson admitted, this was a significant limitation. I have ultimately placed principal reliance on the contemporaneous material.

The factual chronology

I set out below the factual chronology. Where there was a dispute on the evidence that is relevant to the issues to be decided, I set out my resolution of the dispute. The chronology is necessarily detailed and therefore lengthy. Given the absence of witnesses, principally Mr Lakos, a determination of Gail’s capacity at relevant points in time involves a detailed review of the chronological material.

The early years

It begins with a brief overview in relation to Gail. She was born in 1955 and represented Australia in the 1974 Miss World competition, where she was the runner up.
In the mid-1970s, Gail married Ian Gow but they were divorced after two or three years. For a period, she worked as a police officer. Her father was a police officer as was her brother, Mr Petith. She resigned from the police force after a few years.
In the late 1970s, Gail married her second husband, Werner Thelen (Werner). Together they accumulated considerable wealth and appeared to have a rather envious lifestyle, including travelling the world on cruise ships. It does not appear to be dispute that they were each heavy drinkers. Mr Petith gave unchallenged evidence that Gail became a heavy drinker during her marriage to Werner.
At some stage, the evidence does not identify when, Gail worked for Mr Lakos in his law practice. Mr Lakos was admitted to practice in 1971. Mr Lakos provided legal services to Gail and Werner for a number of years and was responsible for the drafting of each of the Wills.
The evidence was reasonably consistent that Gail had been a heavy drinker for many years, dating back to her time in the police force. Ms Alice Quintus, Gail’s sister-in-law, dated it back to as early as 1980, the first time she met Gail, noting that since this time, Gail would drink “a lot of alcohol…drinking in the morning…afternoon and…at night”. Ms Patricia Pizem and Mr Ronnie Ransfield – two other long time friends of Gail’s – gave similar evidence of heavy drinking from the early days.
There is some suggestion that Gail may not have started drinking heavily until the period leading up to 2014 when Werner was sick. Mr George Weissel, a long time friend of Mr Petith said it was not until attending the wedding of Mr Petith’s daughter in 2014 (apparently June 2014) that he observed Gail to be a heavy drinker. Mr Weissel was not cross-examined. There does not appear to be any dispute that Gail was heavily intoxicated at this event and that this was a source of lingering tension between Mr Petith and Gail. Given that Mr Weissel, on his own evidence, would only occasionally see Gail, I do not regard this evidence as of much assistance in terms of when the heavy drinking started. It is against the weight of the evidence that the heavy drinking started much earlier. In any event, I do not need to go too far on this issue because Professor Watson said his opinions would be the same even if the heavy drinking had only commenced in 2014, as opposed to the 1980s.
Werner passed away on 10 September 2014. It was shortly after his death that Gail made the 2014 Will, drafted by Mr Lakos. Werner had been diagnosed with Parkinson’s disease in about 2006 and Gail became his primary carer. It appears that this role took a toll on Gail and may have exacerbated her already heavy drinking.

Gail meets Mr Bone

In November 2014, Gail went on a cruise from Barcelona to Singapore. She had originally planned to go on the cruise with Werner. It was on that cruise where she met Mr Bone, an American citizen. He was working on the cruise providing estate planning and wealth management courses to passengers. Mr Bone was a qualified lawyer who was licensed to practice law in the States of Indiana in 1976 and New Mexico in 2002. He came to specialise in estates, tax, trusts and family wealth planning, including drafting trust instruments and wills. In 1985 he founded a company, Wealth Development Resources LLC in Indiana to promote various specialised financial/estate planning services.
Mr Bone and Gail quickly formed a romantic relationship. Mr Bone extended his time on the cruise, moving into Gail’s cabin to spend the remainder of the cruise with her after he was scheduled to leave the cruise.
After the cruise was over, Gail went to visit Mr Bone in Santa Fe, living with him between 10 March and 14 May 2015. Thereafter the two appeared to be quite inseparable, dividing their time between Sydney, the Gold Coast and Santa Fe, where Mr Bone had his residence, and going on holidays together. They were primarily only separated when it was necessary for one or the other to return home due to visa requirements.
Mr Bone gave evidence, which did not appear to be seriously disputed, that the two spent only 11 months apart between when they first met in late 2014 and when Gail died in April 2021. Their love and affection for each other did not appear to be seriously in dispute.
It would appear that Gail continued to drink quite heavily and on a daily basis throughout their entire relationship.
Given the issues in the proceedings – principally concerning testamentary capacity and alleged undue influence in relation to the 2018 Will, the 2019 Will and the 2021 Will – it is convenient to pick up the chronology at the start of 2018.

2018

During the period from at least January 2018 to April 2021, Gail was in and out of hospital and rehabilitation care. There was considerable documentation in evidence recording her condition at various times throughout this period. I set out below the relevant entries with the dealings surrounding the making of the relevant testamentary documents interspersed.
The records begin on 12 January 2018 when Gail was admitted to the Northern Beaches Hospital (NBH) after falling down. At the time, Mr Bone was living in Australia with Gail at the Clontarf Property. He travelled back to Santa Fe on 21 May 2018. The emergency department assessment records note that Gail reported that she had not had a drink for three days because she had run out of wine at home. Under the heading “ETOH” (a medical abbreviation used to describe anything related to alcohol), the records state:

Drinks 1-2 bottles of wine a day
Starts drinking -9am
Has Been drinking 1-2 bottles a day for st [sic] least 3 years - difficult to get exact time
Had 48hrs without ETOH last year while on holidays - Steve states Gail was close to having a seizure and needed medical attention
Gail states able to go 2 weeks without ETOH last May without a problem
Denies withdrawal sx if doesn't drink
Steve states Gail will hide the wine and mix with other drinks or use multiple small glasses
Was carer for husband who had Alzhiemers [sic] and passed away - significant stressor
Was Police woman - "everyone drank" - significant stressor
Nil attempts at detox
Doesn't feel guilty about drinking
Doesn’t regret drinking
Doesn't feel she should cut back
If she were to cut back it would so Steve wouldn't leave her
Doesn't think anyone comments on her drinking however Steve states people do

The hospital records indicate that Gail was given thiamine intravenously (Professor Watson said that this was standard for patients admitted with excess alcohol consumption). The final entry was to the effect that Gail was “Advised to continue drinking in order to avoid withdrawal”. She appears to have followed that advice.
On 13 January 2018, Gail and Mr Bone went on a fishing trip with Mr Petith at Forster for five days and also took a short cruise on the Queen Mary II between Sydney and Brisbane. Mr Bone had foot surgery in March 2018 and Gail cared for him after his discharge from hospital at the Main Beach Property and then at the Clontarf Property.

The making and execution of the 2018 Will

On 15 June 2018, Gail executed the 2018 Will.
According to Mr Bone, in May 2018, Gail handed him a copy of her 2014 Will and asked him to have a look at it and tell her what he thought. He looked at the 2014 Will, making notes on a copy. They then had a discussion where Gail apparently asked Mr Bone whether she could do something for him in her will. He said she didn’t need to do anything for him and Gail then raised giving $100,000 to Mr Bone’s daughter. Mr Bone said that would be okay if that is what she wanted to do and Gail decided to give Mr Bone’s daughter $100,000.
Arrangements were made for Gail to confer with Mr Lakos on 17 May 2018. A conference took place on 17 May 2018, which was also attended by Mr Bone. Mr Bone could not recall how he participated in that meeting or what was said.
On 19 May 2018 Gail, sent an email to Mr Lakos with the subject “Re: my Will!” providing Mr Lakos “as promised” with further details of the addresses for her niece Chantelle, Tim and Sue Bowen and Alice Quintus. The email was signed off “Big Regards, Gail”.
On 22 May 2018, Mr Lakos emailed Gail, copying Mr Bone, attaching updated drafts of her will, an Advanced Care Directives document and an Appointment of Enduring Guardian document. Mr Bone and Anne Petith were proposed to be her guardians.
By the time Mr Bone had returned, or was en route, to Santa Fe, he was then involved in reviewing the draft documentation that had been circulated. Mr Bone took to emailing Mr Lakos directly with his comments, which he did by email dated 25 May 2018. Mr Bone’s email ended with:

Thanks for jumping on this project. There is a real need to treat it with urgency!

Mr Lakos responded to Gail, copying Mr Bone, in relation to Mr Bone’s comments. Mr Bone then emailed Gail with his comments on what Mr Lakos had said. Gail then spoke to Mr Lakos on 1 June 2018 in relation to the draft documents. There were then further drafts circulated and then discussed between Gail and Mr Bone, with Mr Bone then engaging in further communications with Mr Lakos. Mr Lakos sent a detailed email on 13 June 2018 to Gail and copied Mr Bone, in which he responded to Mr Bone’s queries.
Gail executed the 2018 Will on 15 June 2018. Mr Lakos had arranged for an independent solicitor, Ms Jessica Swain, to attend on the execution of the 2018 Will and associated documents. Mr Lakos had arranged for her attendance, through her then employer, Uther Webster & Evans Solicitors, to provide a certificate of witnessing and advice in relation to the enduring power of attorney and Appointment of Enduring Guardian. This was necessary because Mr Lakos was to be appointed one of her enduring guardians.
Ms Swain witnessed Gail’s execution of the 2018 Will. Ms Swain made two affidavits – the first confirming that she witnessed Gail’s signature on various documents executed on 15 June 2018 and the second setting out her usual practice when witnessing a will, which included making a preliminary assessment of the client’s mental capacity. Ms Swain said that to the best of her recollection, she followed her usual practice on 15 June 2018 and did not have any concern as to the mental capacity of Gail. She gave general evidence that Gail gave clear and coherent responses to questions. Ms Swain was not required for cross-examination.
Gail appointed Mr Lakos, Mr Bone and Anne Petith as her enduring guardians.

2018 after the 2018 Will

Gail went to Santa Fe to join Mr Bone on 22 June 2018 and remained there until 18 September 2018, when she returned home due to her visa requirements. Mr Bone had further foot surgery during this period and Gail looked after him.
Whilst she was away, she received an email from Mr Lakos dated 26 June 2018 confirming what had transpired on 15 June 2018, attaching copies of her new 2018 Will and Advanced Care Directives, together with a copy of his tax invoice for his recent work. On 1 July 2018 Gail, sent an email to Mr Lakos in response, notifying him that she was away in America until September and could not attend to the payment of his invoice until her return. On her return, she arranged for the invoice to be paid and sent an email to Mr Lakos on 21 September 2018 telling him that her cheque was in the mail.
Gail was admitted to the Gold Coast Hospital on 1 December 2018. Mr Bone brought her to the emergency department at 9.55 am following a fall while intoxicated. Her blood alcohol level is recorded as 0.25 at 10.55 am. The records note that Gail “Currently drinks 2 bottles wine daily, often drinks in mornings”.
The emergency department clinical examination notes record that there have been multiple recurrent falls, worsening over the past few months with three falls since yesterday, and that Gail had struck her head twice in the last 24 hours. The entry in the Progress Notes for the evening of 1 December 2018 include:

Currently not keen to really think about stopping alcohol intake
Partner describes short term memory not the best and sometimes mood swings

A CT scan of Gail’s head was performed on 1 December 2018. The conclusion included:

Ventricular prominence slightly disproportionate to degree of sulcal atrophy with no evidence of obstructing lesion or transependymal CSF spread may reflect normal pressure hydrocephalus, clinical correlation recommended.

Gail and Mr Bone returned to Sydney from the Gold Coast on 4 December 2018.
On 12 December 2018 Gail, was admitted to NBH after a fall. The ambulance record includes that Mr Bone advised that Gail “drinks 2 bottles of wine/day however [Gail] only admitting to 1 bottle wine/day”. She remained in hospital until 14 December 2018. When questioned about this entry, Mr Bone said that the reference to two bottles was “from time to time” but speaking in general terms it was one to two bottles a day. He later said when she was drinking one to two bottles a day “she could function normally” including driving a motor vehicle. Gail did not stop driving until about mid-2020.
An entry made by Emma Myers, a registered nurse on 13 December 2018 includes “patient is a poor historian”. Mr Bone agreed with this statement at the time. The entry goes on to record that Gail was experiencing alcohol withdrawal symptoms at the time and Professor Watson agreed that one would expect someone experiencing these symptoms to be a poor historian. Gail apparently had two falls in hospital on 13 December 2018.
The Social Work review on 13 December 2018 records Gail acknowledging that she drinks too much but that she did not wish to engage with any rehabilitation services. There are many references to rehabilitation services in other hospital records at the time and later. It was a recurring theme. It was not only health professionals that encouraged Gail to seek long term help. Those closest to her did the same. They all tried to make her go to rehab, but she said no, no, no!

A cerebral MRI was performed on 13 December 2018. Under the heading comment, the report by Dr Tim Mander-Jones stated:

No acute infarction.
In the presence of the clinical triad of incontinence, memory loss and gait disturbance together with the asymmetric prominence of ventricular system relative to the overlying gyri underlying normal pressure hydrocephalus (NPH) should be considered.

Mr Bone agreed that at the time Gail was having balance issues and when she had too much to drink, her memory was not as good as it should have been.
Professor Watson had access to and reviewed these cerebral MRI scans and the accompanying report of Dr Mander-Jones. Professor Watson gave evidence that the report suggested “some abnormality of flow in the CSF [cerebrospinal fluid] through the particular channels where it has to flow”. Professor Watson agreed with the proposition put to him by senior counsel for Mr Petith that the fact that ventricles were very large was indicative of the potential NPH condition being “well-developed”.
A CT scan of Gail’s brain was also performed on 13 December 2018. The report written by Dr Mark Wilkinson includes:

There is prominence of the ventricular system that may relate to central parenchymal volume loss. No mass lesion, mass effect or midline shift. No parenchymal haemorrhage or extra-axial collection.
There is periventricular and deep white matter hypodensity consistent with chronic small vessel ischaemic change. Grey-white differentiation is preserved.

Professor Watson explained Dr Wilkinson’s discussion of the “periventricular and deep white matter hyperdensity of chronic small vessel ischemic change” by reference to the white matter being “like the circuit board” and the grey matter, the neurons, being the “chips on the circuit board”. Essentially, Professor Watson highlighted that, in the presence of white matter disease, there is “often significant inefficiency in how signals come into the brain, go out of the brain, and are transmitted across the brain to several areas”. In relation to the parenchymal volume loss, Professor Watson interpreted this reference by Dr Wilkinson as an allusion to brain atrophy and NPH.
The Progress Notes record a neurological consultation on 14 December 2018 which includes a reference to “midline cerebellar atrophy” under the heading “MRI reviewed”. The Progress Notes go on to state “gait disturbance more likely form [sic] cerebellar dysfunction frpom [sic] long term ETOH than NPH”.

2019

Gail was again admitted to the emergency department of NBH on 6 February 2019. She was brought in by ambulance called by Mr Bone after she fell on the kitchen floor after slipping from the staircase, hitting her head, with the ambulance report noting a laceration to her left eye. The discharge summary records multiple falls on 6 February 2019 and that Gail had “1-2 bottles of wine last night.” The ambulance electronic record also refers to Gail having had a head strike as well as a history of “brain lesion affecting balance” and that her breath smelt of alcohol. The discharge summary also records on examination there was “Nil nystagmus”. Nystagmus, according to Professor Watson, is a common ophthalmic sign and an early indicator of thiamine deficiency and is one of the characteristics of Wernicke encephalopathy. It also appears that thiamine was given to Gail while in hospital, a matter relied on by Professor Watson.
On 12 February 2019, Mr Bone and Gail met with their GP, Dr Lim at his surgery in Seaforth. Dr Lim told Gail that her life expectancy, if she did not quit drinking was 6 months to 6 years maximum. He also said that:

Alcohol has damaged Gail’s cerebellum in the back of her brain and that damage is affecting her balance.

A further MRI of Gail’s brain was carried out on 18 April 2019. The report prepared by Dr Sunil Kaniyur records a history of “?cerebellar atrophy ?NPH” being a reference to normal pressure hydrocephalus. Two conclusions are stated in the report:

1. There is global disproportionate cerebral and cerebellar atrophy with background mild to moderate microvascular disease.
2. Morphological normal pressure hydrocephalus but with the CSF flow study suggesting a degree of compensation with the flow perimeters in the normal range. This is of uncertain functional or clinical significance.

Professor Watson referred to these scans when deposing to the fact that Gail’s mammillary bodies had “significantly atrophied”, which was one of the bases upon which Professor Watson formed the view that Gail was already suffering from Korsakoff syndrome at this time.
On 25 April 2019, Gail and Mr Bone flew to Tahiti and embarked on a 17-day cruise. Mr Bone returned to Santa Fe from Sydney on 21 May 2019.
Prior to departing, on or about 13 April 2019, Mr Bone had a discussion with Mr Lakos on the phone. It is not entirely clear who initiated the call, likely Mr Bone. Mr Lakos could not locate the Appointment of Enduring Guardian document executed the year earlier, which had been sent to Anne Petith for her signature, then returned to Gail, such that she could take the document to the US for Mr Bone to sign. Mr Lakos noted that he never received the executed original document and he asked Mr Bone whether he could locate it. Mr Bone wrote back that he could not locate the document in the Clontarf Property and that Gail believed she had left it in Mr Bone’s house in Santa Fe. On 22 April 2019, Mr Bone requested for at least a partially executed copy to be sent to Gail, such that Mr Bone could execute this copy. A copy of the document, which was partially executed, signed by Gail and Mr Lakos, was sent to Mr Bone on 23 April 2019.

The May 2019 Codicil

On 17 May 2019, Gail and Mr Bone attended a conference with Mr Lakos, where Gail informed Mr Lakos that she wanted to gift $1 million to Mr Bone in her will. Mr Lakos prepared a draft codicil and sent it to Gail on 20 May 2019. As set out above, Mr Bone returned to Santa Fe on 21 May 2019. On 22 May 2019, Gail emailed Mr Bone raising an issue about Mr Bone’s address as stated in the draft codicil and asking him to liaise with Mr Lakos about his. Mr Bone emailed Gail and Mr Lakos his correct address and a revised draft was emailed on 23 May 2019. Mr Bone was in Santa Fe at the time.
An appointment was made for Gail to attend on Mr Lakos to execute the Codicil on 30 May 2019, which duly occurred. Her signature was witnessed by Mr Lakos and his secretary Ms Pauletta Sghabi.
Ms Sghabi made three affidavits but was not required for cross-examination. In relation to the Codicil, Ms Sghabi said she did not recall the details of her meeting with Gail to witness the Codicil.
Mr Lakos’ file also contained a handwritten file note of Mr Lakos’ dealing with Banks v Goodfellow (1871) LR 5 QB 549 (Banks v Goodfellow). It was agreed between the parties that having regard to the location of this note in Mr Lakos’ file, it was likely prepared at the time of the Codicil.

The second half of 2019

After executing the Codicil, Gail joined Mr Bone in Santa Fe. They returned to Sydney in early September 2019.
Whilst overseas, Gail was emailing her friend, Ms Jennifer Turner, back in Sydney. For example, on 23 July 2019 she sent an email to Ms Turner dealing with a number of topics, including Mr Bone’s foot and his recovery from surgery, that Mr Bone has recently been issued with his Australian visa and so hopefully would be returning with her to Australia on 3 September 2019, and where they would then be travelling. She asked Ms Turner whether she would be prepared to house sit for Gail again.
She had earlier sent an email to Ms Turner on 3 July 2019 updating Ms Turner on Mr Bone’s health and her own health and, in particular, her “good days and not so good days due to dizziness”.
These emails obviously bear somewhat on Gail’s cognition at the time. The absence of any such communications at the time of the 2021 Will is also quite important. A further small insight into Gail’s cognition at or around this time was given by Mrs Nicky Wessels, Gail’s neighbour at Clontarf, who gave evidence that in the last part of 2019, Gail had told her that she had left $1 million in her will for Mr Bone.
According to Mr Bone, prior to their return to Sydney, he had observed that Gail sometimes had difficulty balancing, whether or not she had been drinking, and occasionally leaned on him for support. After September 2019, Gail began to stumble more often and to have more falls, but she was able to pick herself up and was not injured until her fall on 24 October 2019.
On 24 October 2019, Gail had a fall on the inside garage stairs at the Clontarf Property that left her bleeding from the head and unconscious on the lower landing floor. She was conveyed by ambulance to the Royal North Shore Hospital. On admission her past medical history as recorded included “chronic ETOH” and “no detox or rehab; not interested in ceasing ETOH”. It was recorded that she had approximately one litre of wine on board. Mr Bone said he doubted it was much more than that because he thought it was fairly early in the morning.
The Discharge Summary records that Gail’s recollection of how she fell was different to Mr Bone’s recollection. Mr Bone also reported that Gail had had an earlier fall on 24 October 2019 “from standing height”.
The Discharge Summary also records “normal eye movements, no nystagmus”. In cross-examination, Professor Watson opined that all that could be drawn from this entry was that Gail did not have nystagmus on this occasion.
A CT of Gail’s brain was performed on 24 October 2019. It found:

There is a small acute extra-axial haematoma overlying the left temporal lobe measuring 5mm in depth associated with small volume sulcal acute subarachnoid haemorrhage. No significant mass effect.
No acute transcortical infarct.
Moderate generalised cerebral volume loss.
Bilateral periventricular white matter hypodensity reflects background chronic microvascular angiopathy.

A further CT of the brain was performed on 25 October 2019. There was no change reported from the CT the day earlier. The report notes “no hydrocephalus”.
Gail remained in hospital until 6 November 2019. A report to Dr Lim by the Neurosurgical Registrar dated 11 November 2019, after the Registrar had seen Gail, records that:

Since review, it does not appear she has had any major symptoms although I suspect there is a degree of confabulation.

It was put to Professor Watson that the suspected confabulation recorded by the Registrar was more likely to relate to the effects of the fall than the Korsakoff syndrome. Professor Watson did not agree. Persons suffering amnesia as a result of a fall do not necessarily confabulate. Professor Watson regarded the observation as an unusual one, particularly by a neurological registrar, which Professor Watson placed some weight on.
During this period, Mr Bone kept a diary record of how alcohol was affecting Gail. Between 12 September and 30 November 2019, he recorded at least 15 falls, the most serious being the 24 October 2019 fall.
On 16 November 2019, Mr Bone met Dr Lim alone and was apparently told:

[Gail] should get her affairs in order as soon as possible. Her falls have become serious and life threatening. It would not be wise for you to take your cruise next month.

Mr Bone then told Gail what Dr Lim had said.

The making and execution of the 2019 Will

This discussion with Dr Lim, and Mr Bone subsequently telling Gail, appears to have been a catalyst for a discussion between Gail and Mr Bone about her estate plan. The discussion appears to also have been in the context of the cruise that Gail and Mr Bone were planning on going on to Antarctica in late December 2019. In cross-examination, Mr Bone said that it was probably him that raised or “implemented” the conversation.
According to Mr Bone, in his affidavit evidence, Gail raised the topic of how her 2018 Will was going to provide for Mr Bone if she did not survive the cruise. She apparently said that she wanted to leave the Clontarf Property to Mr Bone so that he could keep living in Sydney after Gail died but he said he was not emotionally prepared to make Sydney his permanent home without Gail. Mr Bone also said that at that time he did not have a permanent residence visa for Australia. Mr Bone was challenged on this evidence in cross-examination. I deal with this challenge below. I do not accept Mr Bone’s evidence in this regard about not having formed a view as to staying in Sydney.
Mr Bone said in his affidavit evidence he could not recall in detail the entirety of the discussions he had with Gail or their consequence.
The documents and email communications, including with Mr Lakos, provide a fairly reliable guide as to what occurred.
Gail attended the Neurosurgery Clinic at the Royal North Shore Hospital on 18 November 2019. She had a fall when entering the clinic and “face planted but did not lose consciousness”.
On 22 November 2019, Mr Lakos made a handwritten file note of a telephone attendance on Gail recording that she had decided to alter her 2018 Will in two respects. First, “On GT’s death, 100% interest in Clontarf property to Steve B” and “Ensure brother Paul is excluded – (other than his participation in income from Testamentary Trust)”.
On 25 November 2019, an email was sent from Gail’s email account to Mr Lakos, copying Mr Bone referring to a conversation from the previous week. Mr Bone admitted that he drafted the email after a discussion with Gail.
The email stated that Gail wanted to add a specific bequest of the Clontarf Property to Mr Bone to the specific cash bequest she had already given him. In relation to this aspect of Gail’s instructions, Mr Bone said in cross-examination that this was not something he wanted. He said it was never his intention to get a fee simple in the Clontarf Property, because at this time he was not ready to commit to living in Australia at that time. Mr Bone was challenged on this evidence as to whether he had decided to live in Australia by this time. I do not accept Mr Bone’s evidence for the reasons set out below.
The email also indicated that Gail wanted to leave all of her tangible personal property to Mr Bone, save for her Volvo, which was to go to Mr Ransfield and her jewellery, which was to be divided among her sister-in-law and nieces.
The email concluded:

Given that my health has not been good and we are about to leave the country for South America, I’d like to get this taken care of before we leave Sydney on 17 December.

Mr Lakos sent a draft of the 2019 Will on 27 November 2019 to Gail. On 29 November 2019, another email was sent to Mr Lakos, ostensibly from Gail but again drafted by Mr Bone. The email stated that there were a number of misunderstandings and that Mr Bone and Gail had discussed her intention in more detail and she wished to make them clearer.
Two matters were clarified. First, as regards the division of her personal, “womanly” effects, such as her jewellery and clothing. Second, the personal tangible property that was to be given to Mr Bone. In relation to the latter, the email stated:

I wish for him to be able to take possession of and occupy any Sydney residence after my death, indefinitely and without any disruptions regarding house contents.

The email also asked whether a “no contest” clause could be included in the 2019 Will. This was in the context of an apparent concern that Mr Petith may seek to attack Gail’s 2019 Will.
Mr Lakos’ file contains a copy of an article that had appeared in the December 2019 Law Society Journal entitled “Practical tips for dealing with knowledge and approval of a will” suggesting he was alert to the issue of testamentary capacity or undue influence at the time.
Whilst Mr Bone did not have a permanent residence visa for Australia at the time, he was certainly considering applying for one. On 2 December 2019, Mr Lakos emailed Gail with a referral to an immigration lawyer. In cross-examination, Mr Bone admitted that by November 2019 “we were well on our way” to having an application for him to live in Australia on a permanent basis, completed. There was then the following exchange:

Q. So, I suggest to you, sir, that the fact that you had started seeking that visa to enable that to happen meant that you had formed the view, as of November 2019, that you intended to continue living in Australia, particularly in Sydney, particularly in Clontarf, long-term moving forward. Correct?
A. Yes.

This evidence is flatly inconsistent with Mr Bone’s evidence set out above that at the time of the lead up to the making of the 2019 Will, he had not decided to stay in Sydney and that this was a reason he gave to persuade Gail not to leave him the Clontarf Property. It is also inconsistent with Mr Bone’s other evidence in relation to what occurred in 2021 (which I deal with below) that his circumstances had changed between 2019 and 2021 in that it was not until 2021 that he had decided that he wanted to live permanently in Australia. I do not accept Mr Bone’s evidence in this regard. The contemporaneous emails which I set out below are also flatly inconsistent with Mr Bone’s suggestion that the reason why Gail did not leave the Clontarf Property to him was because he had not decided whether he wanted to stay in Sydney. The emails are more reliable.
Mr Lakos sent a revised draft of the 2019 Will to Gail and Mr Bone on 2 December 2019 together with a covering email responding to the matters raised in the 29 November 2019 email.
Mr Bone then responded directly by email to Mr Lakos dated 7 December 2019, copied to Gail. The email is quite significant at several levels and so I set it out in full:

When Gail and I went over the latest draft of her will, it all appeared to be what she thought she wanted and that which she directed. However, that proved not to be the case when she asked me about the ramifications of gifting the Clontarf property (“Clontarf”) to me outright and absolutely. When I explained that Clontarf (or whatever is left of its value, regardless how it’s invested at my death should I decide to sell it) would pass into my living trust, that lead her to question what happens to the remainder of my trust estate when I die. I explained that the remainder at my death will pass to the heirs and the charities I’ve designated to receive it as I’ve directed. Gail responded by making it clear she does not wish for my daughter or any of my other heirs/beneficiaries to receive any interest in Clontarf (or any proceeds from its sale by me in the future) at my death, regardless how I might invest any Clontarf sales proceeds in the future. Until she asked that question, she did not understand the legal ramifications of making an absolute, testamentary gift of Clontarf to me. Now that she understands, I explained that leaving Clontarf to me outright would not be what she intends.
We discussed several possible solutions to address her concern; but only the following one is acceptable to both of us. Rather than giving Clontarf and her tangible personal property to me outright or in a separate sub-trust for my life, the only gift she would be making to me, in addition to my existing $1M cash bequest, is a 1/3 interest in the trust income generated by her testamentary trust for the shorter of its 20-year term or my life. If the trust is still in existence at my death, my 1/3rd income interest would be split as of my death among the surviving income beneficiaries in shares equal to their respective, percentage, income interests as they exist at that time, for the remainder of the trust term.
Also, the draft appears to be lacking a specific instruction as to when/how often trust income distributions are to be made. A provision needs to be added requiring these distributions to be made by the Trustee (in Australian Dollars) each calendar year on a quarter-annual basis.

Any solution more legally-complicated than this appears to be a bit much for her to comprehend at this time. I’ll ask Gail to confirm these changes to you via her own email when she’s ready.

The stated reason for Gail’s change of mind was not wanting Mr Bone’s daughter to receive any interest in the Clontarf Property after he dies. At various times in his evidence, Mr Bone sought to link the change to a concern about US taxes, but I do not accept this evidence. There is also nothing in the email to support Mr Bone’s later assertion that he was not intending to reside permanently in Australia at this point in time. This is also refuted by other contemporaneous documents. I thus reject Mr Bone’s evidence in this regard.
The concluding paragraph also suggests that, at the time, Mr Bone was concerned about Gail’s ability to comprehend certain matters. Mr Bone said that this last paragraph was referring to all of the matters in the email, not just the matters in the penultimate paragraph. The final paragraph refers to a “solution”. The only solution referred to in the body of the email is giving Mr Bone a one third interest in the income of the testamentary trust to deal with Gail’s concern in not wanting to gift the Clontarf Property outright. Mr Bone’s view was that Gail was not able to understand the notion of a life estate in 2019. He also agreed that Gail’s condition, both mentally and physically had deteriorated greatly between 2019 and 2021. This is a matter of some significance in relation to whether the 2021 Will should be admitted to probate, which I deal with later in these reasons.
Mr Lakos responded later that day. His response included:

For completeness I observe that when in due course Gail approves the final draft and attends my office to sign, I will again explain to her in detail the meaning of each provision including potential inheritance claims arising.
Accordingly, before she signs, I will verify that she fully comprehends all provisions and that these accurately reflect her wishes.

By email dated 9 December 2019, Gail asked Mr Lakos to help her make sure that she had signed everything required to make sure all superfund assets will pass into her testamentary trust at her death.
By further email dated 9 December 2019, purportedly from Gail but drafted by Mr Bone, Gail confirmed to Mr Lakos that Mr Bone’s email to Mr Lakos accurately described her concerns about gifting the Clontarf Property to Mr Bone and that she wanted to substitute that proposed gift to him with a one third lifetime income interest in the testamentary trust.
Mr Lakos sent a further draft of the 2019 Will by email to Gail, copying Mr Bone on 10 December 2019. A couple of hours later, Mr Bone responded suggesting a change referable to the lifetime income interest to him. An hour later he sent another email to Mr Lakos in relation to his lifetime income interest.
On 11 December 2019, an email was sent from Gail to Mr Lakos, drafted by Mr Bone, confirming in relation to the lifetime income interests that if one class no longer survives, the remaining classes get half each and so on. It was suggested to Mr Bone that Gail did not understand what was being conveyed by this email. I do not accept this attack. Mr Bone’s evidence was that this role was to suggest changes so that the words were clear and reflected Gail’s intentions. I accept this evidence. There is also Mr Lakos’ file note from 13 December 2019 which supports a finding that Gail understood all of the 2019 Will.
As at this time, Gail and Mr Bone were still going on their cruise. The evidence of Nicky Wessels, Gail’s neighbour suggests that Gail was in a lot of pain at the time and perhaps a little morose. Gail apparently told her that she was planning on going on the cruise and jumping off the back of the boat because she was in so much pain.
Mr Lakos provided a further draft on the afternoon of 12 December 2019. The email concluded:

Subject to your approval of the attached draft, I can meet with you tomorrow… to again explain the final document and witness your execution.

Mr Lakos met with Gail and Mr Bone on 13 December 2019 to execute her will. Mr Bone was present throughout the conference. Mr Lakos’ handwritten file note begins with a series of entries in relation to Gail’s current medical condition. The note then records:

Other than periodic vertigo problems, feels fine – no pain able to enjoy holidays in Qld + cruises.
Gail has followed evolution of latest version of will – has read in detail.
Fully understands & is really pleased [with] structure.
Read to [Gail] each clause – she fully comprehends & approves provisions – keen to sign.
Proceed to execution.

The file note concludes with a signature and “1 ¼ hr” suggesting this was how long the conference lasted.
Gail’s signature was witnessed by Ms Lia Oliver and Ms Sghabi. Ms Sghabi had no recollection of the meeting. Ms Oliver made an affidavit which simply confirmed her signature. Neither was cross-examined.
Ms Sghabi also gave evidence that after the 2019 Will was executed, she removed the original 2018 Will (including the Codicil) from Mr Lakos’ records, and destroyed them, consistent with Mr Lakos’ usual practice.

Late December 2019 and 2020

On 13 December 2019, Gail’s GP, Dr Lim, diagnosed Gail with “vertigo due to cerebellar atrophy”.
On 21 December 2019, Gail was again admitted to NBH where she remained until 30 December 2019. She presented to the emergency department after a fall down two steps, with a fracture of her “vertebra lumbar”. A lumbar spine CT showed “acute L5 burst fracture with 10mm retropulsed fragment, moderate canal stenosis”. By all accounts, it was a very significant fall. The Discharge Summary recorded “chronic ETOH- 2x bottles of wine a day”.
The Occupational Therapy Discharge Referral recorded that Gail had reported “recent new urinal incontinence over the past 3 months”, which had not been investigated and that she had started to wear “pull-ups at home”.
The report also records that “ETOH use impacts decision making” and Mr Bone and Gail concur “3-4 falls per weeks recently, related to ETOH use”.
On Christmas Day 2019, Gail and Mr Bone became engaged to be married. This was confirmed in a telephone conversation between Ms Pizem and Gail, and also between Ms Quintus and Gail.
Gail was discharged to Manly Waters Private Hospital on 30 December 2019 for rehabilitation. The Manly Waters Private Hospital admission and discharge summary notes “ETOH dependence ?up to 2 bottles/D (declines detox)”. The Progress Notes record several occasions where alcohol was found in the possession of Gail and that it had been “brought into patient from friend or partner”. She was discharged on 20 January 2020.
The Medical Admission History dated 30 December 2019 included in the “Admitting Diagnosis” one reference to “Cerebellar Ataxia Atrophy” and against “Cognition”, recorded “confused at times”. Professor Watson agreed that this tells you nothing about the type of confusion, whether it is minor or major.
While at Manly Waters, a Mini-Cog assessment of Gail was performed on 4 January 2020. Gail scored three out of five. A score of less than three has been validated “for dementia screening”. Professor Watson opined that her ability to recall the three words suggests that Gail’s working memory, rather than executive function, appears to be working all right. He would have expected someone who was affected on the more severe end of Korsakoff syndrome to have difficulty with that task. In relation to the clock drawing aspect, Gail scored zero out of two even though she drew all of the hands in roughly the correct position. The test is a blunt instrument with weaknesses. All that can be gathered from it is that there is some level of cognitive dysfunction and extra assessment/precautions may be needed.
On 11 January 2020, the Progress Notes at 1pm record “short term memory ↓” and at 3.20pm “reminded of need of supervision for gym work @ this stage – short term memory decline may be an issue there”. Professor Watson regarded this as an important observation. Gail had to be reminded to be supervised, which implies memory problems.
Gail was re-admitted to Manly Waters on 30 January 2020 after having had spinal surgery at Royal North Shore Private Hospital on 24 January 2020.
A further Mini-Cog assessment was performed on 31 January 2020 and Gail scored two out of five. The assessment contains a handwritten notation “Reported cognition impaired” with a further reference to “pain meds”, which Professor Watson regarded in cross-examination as an important observation as cognition may be impaired “through pain and pain med[ication]”. He accepted that he should have mentioned this in his reports and his failure to do so was an oversight. Notes of a Rehabilitation Case Conference at Manly Waters on 4 February 2020 refer to “? ↓ cognition”.
Gail was transferred to Royal North Shore Private Hospital via ambulance on or around 5 February 2020, then re-admitted to Manly Waters on 7 February 2020. Again, the Progress Notes record alcohol being found in the presence of Gail and that she had at least one fall while at the hospital. She was discharged to home on 19 February 2020.
A further Mini-Cog assessment was performed on 8 February 2020. Gail scored two out of five. She recalled two of the three words asked and made the same error in the clock drawing.
On 11 February 2020, a different cognitive test, known as a Montreal Cognitive Assessment (MOCA) was performed. Gail scored 20 out of 30. A normal score for someone like Gail is at least 24 to 26 out of 30. Professor Watson agreed that this tells you that there is some kind of cognitive problem going on, but not its extent. Professor Watson also accepted that there may be other reasons why a person scores poorly on such a test not related to cognitive dysfunction.
Gail was admitted to Manly Waters Private on 21, 25 and 27 February and 3, 5, 10, 12 and 17 March 2020 for “management of wound breakdown” after “L4/L5 Decompr”, which involved physiotherapist sessions.
Gail was again admitted to NBH on 3 May 2020 and remained there until 7 May 2020. She presented from home via ambulance after recent falls. The Case Description records that Gail is unable to complete activities of daily living (ADLs) with Mr Bone at home.
The social history recorded includes “2-3 bottles of wine per day”. In the Discharge Summary it is noted that:

Ambulance officers handed over concerns regarding self-care at home – during multiple home visits have noted significant tripping hazards, bottles of wine everywhere…
Impression: falls multi-factorial with contributions including peripheral neuropathy, possible NPH, cerebral atrophy secondary to prolonged EtOH use.

Gail’s blood alcohol concentration on admission was 0.354g/100mL, some seven times the legal driving limit.
She was discharged to Manly Waters for rehabilitation.
The Occupational Therapy Discharge Referral Summary prepared by NBH included the following in relation to cognition:

Evident throughout Ax that pts memory and recall was poor, pt reports this is due to ETOH abuse. She reports its better when she is not drinking, but pt declines to give up on ETOH.
Pt performing at baseline function, and was safe and (l) on ward, however pt has not had any ETOH since last friday. Pt reports current function is baseline when she hasn’t been drinking. However pt advises when at home she will be drinking heavily daily and has nil intention of abstaining.

A further MOCA was performed on 3 May 2020 and Gail scored 20 out of 30. The Discharge Summary records “MOCA on admission 20/30 however significant BAC at the time”. Professor Watson admitted that such a significant blood alcohol concentration would have an impact on Gail’s cognition at the time of the test. Professor Watson said that his failure to refer to blood alcohol concentration in his report was an oversight. The Progress Notes in relation to that MOCA include:

Memory impaired, some confabulation during conversation. Does not recall how often she falls.

Professor Watson placed some reliance on the references to confabulation in the records. He did not agree that you could not place significant weight on this record because of the alcohol in Gail’s system at the time. In his opinion, you could place some significance on the record “because [the reporting doctor] speaks about a mode of memory dysfunction in the form of confabulation.”
Under the heading “Impression”, the Progress Notes state:

Not safe at home
Difficult to assess capacity at this time – requires formal assessment of capacity.
NPH is a possibility which may be compounding her ataxia/incontinence. Likely Korsakoff syndrome

A formal capacity assessment was recommended.

Another CT scan of Gail’s head was performed on 3 May 2020. The conclusion includes:

Prominence of ventricular system more pronounced than surface sulci, with a degree of crowding at the vertex suggestive of normal pressure hydrocephalus.

The Progress Notes for 4 May 2020 report a “Lateral nystagmus”. According to Professor Watson in cross-examination, this was an important observation. It is possible that it could be the nystagmus that is associated with the classic triad of Wernicke encephalopathy, where a nystagmus is generally only present in the early stages.
A spinal tap was undertaken whereby 33mL of spinal fluid was drained from Gail’s spine, which is noted as being a “high volume CSF drainage”. There is a dispute in the evidence as to whether this led to any obvious improvements. The Discharge Summary records that Gail’s gait was assessed prior to the procedure and two hours after, with “nil obvious improvements noted”. Mr Bone gave evidence that he observed some improvement. Professor Watson agreed that Mr Bone’s observations of some improvement makes the diagnosis of normal pressure hydrocephalus more likely or stronger.
The Progress Notes in relation to a neurological consultation on 4 May 2020 record a history given of poor nutrition:

-nil breakfast (has wine instead)
-lunch
-dinner (eg lamb chops, 2-3 bites)

Mr Bone is also recorded as saying:

Steve reports worsening walking since september [sic] post operation
balance has been poor prior to that, had falls in US with hospital admissions
last time walking normal AUgust [sic] 2019, however reports some issues with balance since hes [sic] known her
report she cannot remember what happens 2 hours ago sometimes
-explains she sent him to groceries with a shopping list, and when he returned did not know where he went
has fluctuations in personality
reports cerebellar atrophy well knowon [sic]

On 5 May 2020, the Progress Notes record that Gail gave a different history for her diet to that which she gave on 4 May 2020, suggesting she has breakfast, “‘not much’” lunch due to having breakfast late, and a hot meal for dinner.
The nutrition diagnosis was in the following terms:

Suspected malnutrition (mild-moderate) related to predicted impact of EtOH on appetite and displacing oral intake as evidenced by report of improved appetite during admission, diet history demonstrating inadequate oral intake, suspected unintentional weight loss with evidence of mild-moderate subcutaneous fat loss and muscle wasting on physical examination (SGA B).
Patient is likely at high risk of refeeding syndrome given Hx of EtOH excess, deranged electrolytes, suspected inadequate nutritional intake and recent weight loss.

Professor Watson accepted that if Gail was to be accepted as to her diet, it suggests she was not receiving all of her calorie intake from alcohol. He said however, he was circumspect about whether Gail was telling the truth because of her long term alcoholism. He did not give it significant weight.
An Occupational Therapy Initial Assessment dated 7 May 2020 records, under the heading “Previous Function”, “Cognition- ETOH cognitive deficits evident, pt reports poor memory and recall”. Under the heading “Current Function”, the notes record “Cognition- Evident throughout Ax that pts memory and recall was poor, pt reports this is due to ETOH abuse. She reports its [sic] better when she is not drinking, but pt declines to give up on ETOH.”
Gail was transferred to Manly Waters Private Hospital and admitted on 7 May 2020. The Medical Admission History and Discharge Summary states as the Admitting Diagnosis: “Cerebral & Cerebellar Atrophy”. The secondary diagnosis included “Normal Pressure Hydrocephalus” and “Malnutrition due to ETOH abuse”.
On 8 May 2020, a further Mini-Cog assessment was performed at Manly Waters Private Hospital. Gail scored one out of five.
Gail was discharged on 21 May 2020.
On 16 September 2020, Gail, Mr Bone and Ms Turner had lunch at Clonny’s at Clontarf. According to Ms Turner, she observed that Gail needed assistance walking, but mentally she did not appear to be affected. Ms Turner also observed that Gail appeared to be in pain and “frustrated with it”. Regardless, they were able to have a normal conversation.
Gail was re-admitted to NBH on 9 October 2020 and remained there until 13 October 2020. Again, she presented after a fall at home. The ambulance record refers to five falls in the past 24 hours and “Fluid on the brain with neuro interventions and hx alcohol related dementia”. Having regard to the Progress Notes dated 9 October 2020, Mr Bone likely told the ambulance officers of a concern of a buildup of fluid on the brain again. He told hospital staff of the previous spinal tap “with some improvement in symptoms”. No further detail was provided as to the nature of the improvement.
The Progress Notes for 10 October 2020 state “Admitted due to ETOH excess related to Dementia, however, patient not scoring in AWS.” There are also various references to Mr Bone not coping at home in the background of Gail’s alcohol excess. The 11 October 2020 Progress Notes report “Admitted due to ETOH excess related to dementia”, which Professor Watson interpreted as meaning “alcohol-related dementia”, a term which has “fallen out of favour”, but refers to the loss of cognition over at least two domains of cognition.
A report of a Social Worker at NBH dated 12 October 2020 includes a reference to “discussion with MO who advised unclear re Ms Thelen’s capacity for decision making.” The Medical Progress Notes for 12 October 2020 contain the following entries – apparently based on a discussion when both Gail and Mr Bone (wrongly referred to as Simon) were present:

Still drinking daily now down to one bottle of wine per day
Simon reports no admission to hospital since May this year when presented with fall
At this time admitted under Dr Iyer
Falls deemed to be likely multifactorial longstanding alcohol related peripheral neuropathy, alcohol intoxication
There was a thought that perhaps NPH could be a contributing factor given prominent ventricles CSF drainage performed 33ml no improvement in symptoms
Was discharge to rehab improved significantly following this however then deteriorated once discharged and outpatient rehab ceased

She was discharged to Manly Waters Private on 13 October 2020. The Admission History records frequent falls, five falls in four hours, chronic alcohol abuse and cerebellar degeneration due to alcohol, and normal pressure hydrocephalus. She was discharged home on 26 October 2020.
A Mini-Cog assessment was performed on 13 October 2020 – Gail scored two out of five. She was able to recall two of the words and was able to do the numbers on the clock but not the hands.
Anne Petith gave evidence that during 2020, Gail often rang her on her mobile phone. Her speech was often slurred, indicating she was intoxicated. There were, however, occasions during 2020 when Anne had a conversation with Gail and Gail would ask about Anne’s family and seemed caring. Her speech seemed more normal in these conversations.

By email dated 23 May 2019, Mr Bone advised Mr Lakos, copied to Gail, his correct address. Mr Lakos then sent a revised draft to Gail, copied to Mr Bone dated 23 May 2019, in which he requested that Gail schedule a conference to meet so that she could execute the Codicil.
Gail met with Mr Lakos on 30 May 2019 and executed the Codicil. Mr Bone was not present at that conference. It also appears that Gail paid Mr Lakos for his services on 30 May 2019.
This chronology demonstrates, quite clearly, that Gail had capacity in the relevant sense. She obviously reviewed the draft and corrected an error. I also do not regard anything in the Codicil as inefficacious. It cannot be said to be irrational for someone in Gail’s position to want to make provision for Mr Bone in circumstances where she had not previously made any provision for him, and they had been in a relationship for some four and a half years. There is also the evidence that Gail subsequently told Nicky Wessels that she had left $1 million to Mr Bone in her will.
There is nothing in the opinions expressed by Professor Watson to lead to a different outcome. The lay and other evidence is more powerful than the educated assumptions made by Professor Watson.
Given that Gail had capacity and again there is no suggestion that the Codicil was not duly executed, a presumption of knowledge and approval arises. Whilst Mr Bone was obviously in attendance at the initial conference with Mr Lakos and Gail on 17 May 2019, he thereafter was overseas. His early involvement and obvious gain from the Codicil may be said to displace the presumption. In any event, I am comfortably satisfied on the evidence that Gail knew and approved of the contents of the Codicil. No other conclusion is reasonably open on the evidence, particularly Gail’s email of 22 May 2019 where she picked up on the error in relation to Mr Bone’s address and asked for him to correct it. The Codicil is also only half a page in length, consisting of three clauses. The subsequent statement by Gail to Nicky Wessels that she had left $1 million to Mr Bone in her will also evidences knowledge and approval.
I am therefore satisfied that Gail had capacity and knew and approved of the contents of the Codicil.

2018 Will

Again, putting to one side the retrospective medical opinion of Professor Watson, there is little in the evidence to suggest that Gail did not have capacity to make a will prior to 2018. There is nothing in the medical records identifying concerns as to memory prior to then.
On the evidence, the suggestion of amending her will was raised first by Gail. It was Gail that raised with Mr Bone the possibility of her providing for him in the will, which he declined. Gail then decided to gift $100,000 to Mr Bone’s daughter.
The initial conference with Mr Lakos was on 17 May 2018 and was attended by both Gail and Mr Bone. It is clear that Gail was actively engaged and following what was required of her, because on 19 May 2018 she sent an email to Mr Lakos providing further details of addresses of the beneficiaries in her will. This suggests that she was obviously aware of what was occurring as she needed to provide details of the beneficiaries of her will. It also demonstrates that she was able to call to mind her beneficiaries.
The inescapable inference from this email is that Gail had provided instructions to Mr Lakos two days’ earlier as to who were to be her beneficiaries. Relevantly, Mr Lakos sent a further draft of the will to Gail on 30 May 2018. He then had a telephone discussion with Gail on 1 June 2018. Further drafts were then sent on 1 June 2018 and 13 June 2018.
An appointment was then made for Gail to execute her will at Mr Lakos’ offices on 15 June 2018. One of the witnesses was an independent solicitor, Jessica Swain. She gave unchallenged evidence of her usual practice in relation to satisfying herself that the testator had capacity. She gave unchallenged evidence that she had no concern as to Gail’s capacity at the time of the meeting. There is nothing to cast doubt on this evidence.
There is considerable other evidence from around this time of Gail interacting with others in a way which suggested that she was aware, for example, of her asset position and was otherwise in complete control of her faculties. One example is evidence given by her sister-in-law, Anne Petith of a conversation that she had with Gail in around 2018 in which Gail referred to her ownership of a 7-11 store, that she had purchased for $5.2 million.
A further important indicator of Gail’s capacity at the time is that shortly after executing the 2018 Will, she went to join Mr Bone in Santa Fe. On 26 June 2018, Mr Lakos sent an email to Gail reporting on the outcome of the meeting of 15 June 2018, and attaching his tax invoice for the legal work that he had carried out. Gail responded to that email on 1 July 2018, stating that she was overseas and would not be able to pay his tax invoice until her return. On her return to Sydney Gail paid that invoice on 21 September 2018. This conduct demonstrates that Gail understood what was being asked of her by Mr Lakos, understood the way in which bills were being paid while she was away and as such, that it would not be possible to pay Mr Lakos’ invoice until her return. She was acting in a coherent and logical way.
Turning now to whether Gail knew and approved of the contents of the 2018 Will, in circumstances where I am satisfied that Gail had capacity at the relevant time and the will was duly executed, a presumption of knowledge and approval arises. There is little in the circumstances, surrounding the lead-up to and making of the will to arouse suspicion. It appears that the idea of changing her will was first raised by Gail. The only change of any substance from the earlier 2014 Will was a gift of $100,000 to Mr Bone’s daughter. There is nothing unusual in the evidence as to how this came about. By this time, Gail and Mr Bone had been a couple for approximately three and a half years.
Mr Bone was not present in Australia at the time that the 2018 Will was executed. Further, the evidence of Ms Swain as to her usual practice and the fact that she followed that practice on 15 June 2018, also strongly supports a finding that Gail knew and approved of the contents of the 2018 Will.
I am satisfied on the evidence that she did.

The Undue Influence Case

Relevant principles

The applicable legal principles were, understandably, not in dispute. They were summarised for example in Petrovski v Nasev at [263]-[277] per Hallen AsJ.
Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. It requires actual coercion, not simply the influence of affection and attachment or the desire to gratify the wishes of another. The coercion must overpower the volition of the deceased. It is to be distinguished from mere persuasion, appeals to the ties of affection or pity for future destitution, all of which are legitimate.
In Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136, Ipp JA observed at [63] that the circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix and that the volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will.

Application to the Facts

In closing submissions, senior counsel for Mr Petith, made it clear that the allegations of undue influence were not pursued in respect of the 2018 Will or the May 2019 Codicil. The allegations were maintained in respect of the 2019 Will and the 2021 Will, to which I now turn.

2021 Will

I deal first with the 2021 Will.
The alleged undue influence, as I understand the closing submissions of senior counsel for Mr Petith, centres on two matters. First, that Gail was misled by a Mr Bone in entering into the 2021 Will. Second, that central to the 2021 Will was the fact that in return for Mr Bone receiving the life estate in relation to the Clontarf Property, the entirety of the balance of Gail’s self-managed superannuation fund was to be paid to her estate, with a Binding Death Benefit Nomination being executed by Gail to give effect to this, with Mr Bone being responsible for ensuring that the wishes of Gail were given effect to in this regard. In circumstances where the Nomination that was executed is not effective, Mr Bone has therefore failed in the task that he was responsible for yet he still seeks to retain all, or now part of the self-managed superannuation monies.
It is strictly not necessary and somewhat artificial to consider whether Gail’s will was overborne in circumstances where I have found that Gail did not have capacity at the time of making the 2021 Will and did not know and approve of its contents. I consider the contention briefly on the assumption that Gail did have capacity.
For the reasons set out above, I am satisfied that if the 12 April 2021 conversation that Mr Bone deposes to having had with Gail occurred in the manner in which he contends it did, it contained at least two errors. First, as to Mr Bone having recently decided to remain permanently in Australia. He had decided this already in 2019. Second, as to the reasons why Gail decided not to leave the Clontarf Property to Mr Bone outright. It had nothing to do, as Mr Bone contended, with any issue in relation to taxes. Rather, as the contemporaneous emails at the time make clear, Gail did not want the Clontarf Property to pass under Mr Bone’s will.
Notwithstanding these errors, I am far from satisfied that Gail’s will was overborne in the relevant sense. Mr Lakos and Jessie Xu conferred with Gail in the absence of Mr Bone on 15 April 2021. Mr Lakos confirmed Gail’s instructions. He was clearly acting for Gail. Thereafter, there were communications between Mr Bone and Mr Lakos where it was clear that, at least in part, Mr Bone was seeking to advance his own interests as to the nature of the life estate to be left to him. Those changes requested by Mr Bone were considered by Mr Lakos (acting for Gail) and were very briefly dealt with in the conference with Gail on 20 April 2021. In these circumstances, there is no basis to conclude that Gail’s will was overborne by Mr Bone. Assuming she had capacity, Gail’s actions are readily explainable by reason of a desire to provide more for Mr Bone.
The second of the two matters relied upon also does not lead to a conclusion of any undue influence. Whilst it is clear that Mr Bone understood the key aspects of Gail’s apparent testamentary intentions – namely a life estate to Mr Bone in circumstances where the entirety of her self-managed superannuation would be paid to the estate – and that Mr Bone admitted that, because of Gail’s incapacity, it was he that was driving the execution of the Nomination, there is nothing to suggest that Mr Bone was in any way, shape or form, aware that the Binding Death Benefit Nomination that Mr Lakos had prepared was likely to be ineffective. Mr Bone’s evidence was that he could not recall the Nomination being executed on 20 April 2021. There is nothing in these circumstances to conclude, again, that Gail’s will was somehow overborne by Mr Bone.
All that could be said is that Mr Bone was now seeking to take advantage of the ineffective Nomination by not only maintaining the claim to the life estate, but also making a claim on the self-managed superannuation. That, however, is not undue influence.
I am thus not satisfied that there was any undue influence exerted by Mr Bone in relation to the 2021 Will.

2019 Will

In relation to the 2019 Will, senior counsel for Mr Petith’s argument centred on Mr Bone’s involvement in the preparation of the 2019 Will. It was contended that Mr Bone provided all the instructions to Mr Lakos under Gail’s name, that he was the instigator of the will in circumstances where Gail did not clearly understand fundamental aspects of what was being discussed.
I have set out above my findings in relation to Gail’s capacity and knowledge and approval of the 2019 Will. I have concluded that Gail had capacity at the time and further that she knew and understood the contents of the will. The contentions advanced by senior counsel for Mr Petith do not, as I understand it, raise any different factual allegations. There is nothing in the circumstances of the dealings between Gail, Mr Bone and Mr Lakos leading up to the making of the 2019 Will, to suggest that Gail’s will was in fact overborne by Mr Bone. Whilst Mr Bone was heavily involved, the changes that occurred after the initial instructions were provided by Gail to Mr Lakos, were to the detriment of Mr Bone. He was no longer to receive the Clontarf Property outright but rather was to receive a one third interest in the income of the testamentary trust. Gail’s actions are, again, readily explainable by reason of a desire to provide more for Mr Bone having regard to the development of their relationship.

Mr Bone’s claim for further provision

Mr Bone’s claim for further provision under the Act was only advanced if the 2021 Will is not admitted to probate. I have found above that the 2021 Will should not be admitted to probate because Gail did not have capacity at the time and did not know and approve of the contents of the 2021 Will. The claim for further provision therefore arises for consideration.
It is important to appreciate at the outset that the claim for further provision arises in circumstances where I have determined that the 2019 Will should be admitted to probate, or more accurately, given that the original will was destroyed, a copy of it. Under the 2019 Will, Mr Bone receives not only the $1 million legacy introduced by the Codicil but also one third of the income of the testamentary trust.
In circumstances where the Clontarf Property will not be subject to a life estate in favour of Mr Bone, there is no reason why the Clontarf Property should not be sold and the proceeds form part of the residue. It seems to be clear that the market value of the Clontarf Property is in the order of $12 million. The income earnt by the testamentary trust would be significantly increased by the addition of approximately $12 million to it and Mr Bone would benefit accordingly by virtue of his one third share of the annual income.
In addition, Mr Bone will receive in the order of $2 million from the self-managed superannuation fund with the remaining $4 plus million (after tax is taken out) forming part of the residuary estate. The annual income of the testamentary trust will be correspondingly increased as a result with Mr Bone receiving a third of that income.
Mr Bone also has substantial assets in the United States. I have set these out above.
Mr Bone was cross-examined by counsel for the NSWTAG in relation to his asset position and his likely annual income. Ignoring the value of his property in Santa Fe, Mr Bone’s assets, including the $1 million legacy under the 2019 Will and the $2 million likely to be received from Gail’s self-managed superannuation fund, are in the order of $7.3 million. If these assets earn a five percent return annually, Mr Bone will earn approximately $365,000 per annum. Mr Bone’s expected return was in fact higher – in the order of eight to ten percent.
A rough estimate of the value of the testamentary trust, assuming the Clontarf Property is sold, and its proceeds invested, is in the order of $19 million. If this earns a five percent return, the annual income will be approximately $960,000 and Mr Bone’s share in the order of $320,000. These figures do not take account of the $4 million injection into the testamentary trust from Gail’s self-managed super fund.
It was put to Mr Bone in these circumstances that he would be well able to buy a suitable property in Sydney or alternatively rent one. A number of properties were identified to Mr Bone in cross-examination. He did not agree that any of the properties would be suitable. As set out above, this was an example of Mr Bone’s intransigence.
Mr Bone’s claim for further provision is also to be considered in circumstances where he is now 74 years old. His relationship with Gail began in late 2014 and obviously ended when Gail died in April 2021 – a period of a little over six years. At least during the period from September 2019 until Gail passed away in April 2021 when the couple were living in Australia due to COVID restrictions, Mr Bone admitted that Gail paid for almost the entirety of his living expenses and as such, his wealth was otherwise not depleted and grew. Allied to this, it is clear that Mr Bone does not claim to have made any financial contribution to Gail’s estate. They kept their respective estates separate.
Mr Bone put his claim this way in answer to a question in cross-examination from counsel for the NSWTAG:

Q. Mr Bone, I’ll put it to you as a proposition. You can’t make any realistic case that you need more than $4.3 million for those purposes, can you?
A. You know, it all depends on how you wish to live, sir. You know, I mean, yeah, the way that Gail and I have been living is - is not living in a two-bedroom, one-car garage house that only has about 1,400 square feet in it. I mean, that’s not been our lifestyle. And as her surviving spouse, without any kids or what have you, I would expect that - of course, I understand the law here is different, but I would - would expect here that it’s not so much a question of what can I afford, but what should I be entitled to as a result of living the way I’ve lived with my wife, being as wealthy as she was, and the lifestyle that we had. And, you know, I would hope to be able to continue that, and she would wish for me to be able to continue that as well.
So, anybody can live on $4 million. I mean, let’s face it, okay, I - I can’t really say no to that. The question is how, your Honour, how are you going to live? And, I mean, if you want to confiscate most of my wife’s estate and distribute it elsewhere, well I guess I can’t keep you from doing that, but I think basically, as a matter of - of fairness, and - and when you consider the way that we have been living, that I’m entitled, you know, to at least a four to $5 million sum that I can go out and find on my own a property that I like to be able to buy and live in without debt and have enough left over to be able to - to live the way we - we were living our lives before she got sick and died.
And I don’t know how else to describe that, but I’m - I’m completely at your mercy there. You know, I can’t - most people in Australia don’t - aren’t worth what I’m worth. Okay, when you look at what - my portfolio, I mean, most people in the United States don’t have three - a $3 million dollar portfolio, especially now the way things are going. So, you know, what can I say? Yeah, I can - I can - I don’t want to say “Live like a pauper,” but live a heck of a lot with - with a heck of a lot less, but that’s not how I - that’s not what I would expect. And that’s not how I would be living if Gail hadn’t gotten cancer and died. So I don’t know what else to say.

Counsel for Mr Bone emphasised that the relevant question under the statue is not just whether the provision is “adequate”, but whether adequate provision for the “proper” maintenance, support and advancement of the applicant has been made. Proper maintenance is not limited to the bare sustenance of a claimant’s position in life including age, status, relationship with the deceased financial circumstances, the environs to which he or she is accustomed, and mobility: see Alexander v Jansson [2010] NSWCA 176 at [18] per Brereton J. Reliance was also placed on what Callinan and Heydon JJ wrote in Vigolo v Bostin (2005) 221 CLR 191 at 228 [114] to the effect that regard must be had to how the parties have lived and might reasonably expect to have lived in the future.

In circumstances where the estate is large and there are no other beneficiaries who present competing moral claims on Gail’s estate, and considering Mr Bone’s position as a loving, dutiful and dependant spouse to Gail, it was contended that the Court should make provision for Mr Bone which provides him with secure accommodation in a way that does not require him to realise his own assets (and thereby reduce his available income). The primary submission was that provision in terms of what was provided for in the 2021 Will should be ordered. Alternatively, a capital sum should be ordered and the Court would have the flexibility under the Act to in effect capitalise the whole trust now to enable this to occur.
The NSWTAG’s primary position was that no order for further provision should be made in favour of Mr Bone. He could purchase suitable accommodation from his own resources, including those legacies left to him under the 2019 Will. Reference was also made to the cases that each claim for provision must be determined on its merits regardless of the relationship between the claimant and the deceased eg Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [170] per Ward CJ in Eq (as her Honour then was).
The relevant principles are well understood. Having regard to all relevant circumstances at the present time, did Gail make inadequate provision for Mr Bone’s proper maintenance or advancement in life: s 59(1) of the Act; Dighton v Norwood [2024] NSWSC 318 at [87]ff.
Having regard to all of the circumstances, I am not satisfied that inadequate provision was made by Gail in the 2019 Will for Mr Bone’s proper maintenance or advancement in life.
I am conscious that the question is whether adequate provision is made for Mr Bone’s proper maintenance, education or advancement in life and that these are relative concepts which must have regard to the size and nature of Gail’s estate and the lifestyle Gail allowed Mr Bone to live. Gail’s estate is large and for the two and half years before Gail died, the two of them lived in a large waterfront home in Clontarf or at Gail’s apartment on the Gold Coast. Gail in effect funded Mr Bone’s lifestyle. The fact that the estate is large does not provide a basis for some kind of blank cheque exercise: see Soulos v Pagones (2023) 416 ALR 181 at [682] per Ward P.
A surviving spouse does not have a right, in effect, to be maintained in the manner to which they were accustomed when living with the now deceased. An evaluative assessment is required having regard to the relevant circumstances.
In the present case, those circumstances as at the present time include:

Gail and Mr Bone’s relationship lasted for a little over six years. It was no doubt a loving and caring one which included each caring for the other in their times of need (Mr Bone being more needy in the earlier stages of their relationship and Gail in more recent times);

there was no intermingling of finances and Gail largely supported Mr Bone financially, particularly in the latter period of their relationship whilst they were locked down in Australia;

Mr Bone came into the relationship with substantial assets in the U.S, including real estate. Mr Bone has largely not needed to draw on those assets particularly during the latter part of his relationship with Gail because of her financial support of him. Gail’s financial support has enabled Mr Bone’s assets to grow;

in addition to being financially supported by Gail during her lifetime, Mr Bone will also benefit substantially under Gail’s 2019 Will – a $1 million legacy and one third of the income of the testamentary trust. Mr Bone will also benefit, somewhat fortuitously, from the fact that the Nomination is not effective – a $2 million windfall for Mr Bone. The value of the testamentary trust will increase by approximately $4 million and the income from the trust will increase accordingly, with Mr Bone receiving one third of the increased income;

he can readily afford, out of his own existing and to be received assets, to buy or rent suitable accommodation on Sydney’s north shore befitting his station in life, if that is what he wants to do.

Having regard to all of these matters, it is my view that the community would not expect for Gail to provide any more for Mr Bone.
Mr Bone’s claim for further provision should be dismissed.

Conclusion and orders

For the reasons set out above, a copy of the 2019 Will should be admitted to probate. Mr Bone’s claim for further provision should be dismissed. At the request of the parties, I will hear them as to costs if they are unable to reach agreement. Any remaining issues, including as to costs, will be determined on the papers.
The orders of the Court are:

Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs.

Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 10 December 2024.

In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 10 December 2024 any submissions and supporting material, such submissions not to exceed 3 pages.

Direct the parties to provide to my Associate by no later than 5pm on 17 December 2024 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers.

**********

Amendments

02 December 2024 - correct typographical error in [474(e)]

Decision last updated: 02 December 2024

Medium Neutral Citation:	Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian [2024] NSWSC 1503
Hearing dates:	9 – 13, 16 – 17, 19, 20 September 2024
Date of orders:	28 November 2024
Decision date:	28 November 2024
Jurisdiction:	Equity
Before:	Pike J
Decision:	(1) Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs. (2) Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 10 December 2024. (3) In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 10 December 2024 any submissions and supporting material, such submissions not to exceed 3 pages. (4) Direct the parties to provide to my Associate by no later than 5pm on 17 December 2024 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers.
Catchwords:	SUCCESSION – testamentary capacity – knowledge and approval – deceased made wills in 2021, 2019, 2018 and 2014 and a codicil in 2019 – where deceased’s brother challenges 2021, 2019 and 2018 testamentary instruments and seeks a grant of probate for the 2014 will – where deceased’s de facto partner’s interest in deceased’s estate increased under each testamentary instrument – whether deceased had testamentary capacity – where deceased was a long term alcoholic, suffering the effects of frequent falls, and was undergoing chemotherapy treatment – suggestion of issues with cognition related to Wernicke Korsakoff encephalopathy syndrome by eminent neurologist – onus on propounder of will to prove the deceased had testamentary capacity – where deceased did not have capacity to make the 2021 will – where a copy of the 2019 will should be admitted to probate SUCCESSION – undue influence – whether 2021 or 2019 wills were made as a consequence of undue influence by de facto partner – requirement of actual coercion which must overpower the volition of the deceased – not necessary to consider undue influence in relation to 2021 will where it was found that deceased did not have testamentary capacity - no undue influence found in relation to 2019 will SUCCESSION – claim for further provision by de facto partner – whether deceased adequately provided for the proper maintenance, support and advancement in life of claimant – where claimant has substantial personal assets – whether claimant is entitled to be maintained in the manner to which they were accustomed and expected had the deceased “not gotten cancer and died” – a large estate does not provide a basis for a blank cheque exercise EVIDENCE – where deceased’s long term general practitioner is deceased – where deceased’s long term lawyer and drafter of testamentary instruments is deceased – where the propounder of will is an interested person – reliance placed on contemporaneous materials including medical history notes, legal file notes, email communications and lay evidence of friends and family of deceased – Court to assess the evidence as a whole to determine testamentary capacity
Legislation Cited:	Succession Act 2006 (NSW) s 59 Trustee Act 1963 (NSW) s 63
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Anderson v Yongpairojwong [2024] NSWCA 220 Banks v Goodfellow (1871) LR 5 QB 549 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Briton v Kipritidis [2015] NSWSC 1499 Chant v Curcuruto [2021] NSWSC 751 Dedakis v Deligiannis; The Estate of Rebecca Deligiannis [2024] NSWSC 1018 Dighton v Norwood [2024] NSWSC 318 Egginsv Robinson [2000] NSWCA 61 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 In the matter of Gainer Associates Pty Ltd [2024] NSWSC 1138 Lim v Lim [2023] NSWCA 84 Mekhail v Hana [2019] NSWCA 197 Nicholson v Knaggs [2009] VSC 64 Parker v Felgate (1883) 8 PD 171 Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported) Petrovski v Nasev; The Estate of Janakievksa [2011] NSWSC 1275 Soulos v Pagones (2023) 416 ALR 181 Tobin v Ezekial (2012) 83 NSWLR 757 Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 Van Rensburg v Adilinis [2024] NSWSC 1146 Veall v Veall (2015) 46 VR 123 Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197
Texts Cited:	Nil
Category:	Principal judgment
Parties:	In proceedings 2021/00364938: Paul Petith (Plaintiff) New South Wales Trustee & Guardian (First Defendant) Steven Rundle Bone (Second Defendant) In proceedings 2022/00118624: Steven Rundle Bone (Plaintiff) New South Wales Trustee & Guardian (Defendant)
Representation:	Counsel: In proceedings 2021/00364938 A Fernon SC with A Bulley (Plaintiff) C Birtles (First Defendant) S Chapple SC with H Morrison (Second Defendant) In proceedings 2022/00118624 S Chapple SC with H Morrison (Plaintiff) C Birtles (Defendant) Solicitors: In proceedings 2021/00364938 Shakenovsky & Associates (Plaintiff) Keypoint Law (First Defendant) Glass Goodwin Solicitors (Second Defendant) In proceedings 2022/00118624 Glass Goodwin Solicitors (Plaintiff) Keypoint Law (Defendant)
File Number(s):	2021/00364938 and 2022/00118624
Publication restriction:	Nil