Power v Smart
[2018] WASC 168
•13 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: POWER -v- SMART [2018] WASC 168
CORAM: DERRICK J
HEARD: 9-12 APRIL 2018
WRITTEN CLOSING SUBMISSIONS FILED ON 26 & 27 APRIL 2018
DELIVERED : 13 JUNE 2018
FILE NO/S: CIV 2665 of 2016
BETWEEN: ROBYN LOUISE POWER
First Plaintiff
MICHAEL JOHN PERKUSICH
Second Plaintiff
AND
SUSAN FAYE SMART
AINSLIE JOY PERKUSICH
Defendants
Catchwords:
Wills - Probate - Whether testator had testamentary capacity - Whether testator knew and approved of contents of will - Whether testamentary undue influence
Legislation:
Nil
Result:
Plaintiffs' claim for probate of will in solemn form made out
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr M S Macdonald |
| Second Plaintiff | : | Mr M S MacDonald |
| Defendants | : | Mr G A Rabe |
Solicitors:
| First Plaintiff | : | Macdonald Rudder |
| Second Plaintiff | : | Macdonald Rudder |
| Defendants | : | Summers Legal |
Case(s) referred to in decision(s):
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Brown v Wade [2010] WASC 367
Easter v Griffiths (1995) 217 ALR 284
Fisher v Kay [2010] WASC 160
In the Will of Wilson (1897) 23 VLR 197
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
McKinnon v Voigt [1998] 3 VR 543
Nicholson v Knaggs [2009] VSC 64
Nock v Austen (1918) 25 CLR 519
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Romascu v Manolache [2011] NSWSC 1362
Saunders v The Public Trustee [2015] WASCA 203
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
Veall v Veall [2015] VSCA 60
Vernon v Watson; Estate Clarice Isabel Quigley Dec'd [2002] NSWSC 600
Wingrove v Wingrove (1885) 11 PD 81
DERRICK J:
Introduction
On 23 September 2011 Ms Irene Jean Okle (the deceased) executed a Last Will and Testament (the 2011 Will). The first plaintiff and the second plaintiff (the plaintiffs), who are the Executors under the 2011 Will, seek an order that the court pronounce the force and validity of the 2011 Will in Solemn Form.
The defendants dispute the validity of the 2011 Will. The defendants deny that the 2011 Will was the Last Will and Testament of the deceased on the following grounds:
1.The deceased lacked testamentary capacity at the time of making the 2011 Will; and/or
2.The deceased did not know and approve of the contents of the 2011 Will and its effect; and/or
3.The deceased was prevented by the undue influence of the first plaintiff from exercising her free will when making the 2011 Will.
The defendants claim that the valid will of the deceased is a will executed by the deceased on 14 February 1998 (the 1998 Will). The defendants seek an order that the court pronounce the force and validity of the 1998 Will in Solemn Form.
It follows from the grounds on which the defendants deny the validity of the 2011 Will that the questions for my ultimate determination are as follows:
1.Did the deceased lack testamentary capacity at the time of making the 2011 Will?
2.Did the deceased know and approve of the contents of the 2011 Will and its effect?
3.Was the deceased prevented by the undue influence of the first plaintiff from exercising her free will when making the 2011 Will?
I will return to deal directly with each of these questions in due course. However, before doing so it is necessary to deal with the factual and evidential background in light of which the questions must be addressed.
The deceased and her family
The deceased was born on 4 July 1920. She died on 23 August 2013 at the age of 93.
The deceased left school at the age of 14.
On 28 October 1939, when she was 19, the deceased married Mr Cyril Okle (Cyril).
In 1943 Cyril and the deceased bought a property at 11 Bateman Way in Mt Pleasant. The deceased and Cyril lived at this address together until Cyril died in 1975.
In 1986 the deceased subdivided the land at 11 Bateman Way. From this point on she lived at 11B Bateman Way. She remained at this address for the rest of her life, save for when she was living in aged care homes.
The deceased and Cyril had two daughters, the defendants Ainslie Joy Perkusich (Ainslie) born in 1941, and Susan Faye Smart (Susan) born in 1951.
Ainslie has three children, namely Stevan Perkusich (Stevan), born in 1963, the first plaintiff, Robyn Louise Power (Robin), born in 1965, and the second plaintiff, Michael John Perkusich (Michael), born in 1973.
Stevan, Robyn and Michael all have their own children. Stevan has two children, Robyn has two children and Michael has four children. One of Stevan's children is a daughter called Bethany. Bethany was born in 2003.
Susan has two children, Andrew Smart (Andrew) born in 1973 and Meagan Smart (Meagan) born in 1975. Meagan has one child of her own who was born in 2014, that is, after the death of the deceased.
As is apparent from the above summary of the deceased's family tree, the deceased, at the time of her death, had two children, five grandchildren and eight great grandchildren.
As is also apparent from my above summary of the deceased's family tree, I propose to refer to members of the deceased's family by their first names. I will do the same for some of the non‑family member witnesses called to give evidence in the trial. I propose to adopt this approach solely for ease of reference. No disrespect is intended by my use of the first names of the deceased's family members or witnesses.
The witnesses and closing submissions
At trial Robyn gave evidence as part of her and Michael's case. They also called as witnesses Mr Paul Haynes, solicitor, Ms Natasha Haynes (who is Mr Haynes' daughter), Ms Alyson Haynes (who is Mr Haynes' wife), Dr Rudolf Bohmer, general practitioner, and Dr Olivia Lee, consultant psychiatrist.
Both Susan and Ainslie gave evidence in support of their case. In addition, they called as witnesses Meagan and Dr C Nick De Felice, consultant psychiatrist.
The evidence‑in‑chief of the witnesses was adduced by the tendering of their previously prepared witness statement or report supplemented by some brief oral examination.
The parties' closing submissions were made by way of written submissions.
The making of the 1998 Will, the 2011 Will and the enduring powers of attorney - non‑contentious facts
As I have already stated, on 14 February 1998 the deceased made the 1998 Will. By the 1998 Will the deceased appointed Susan as her Executor and Trustee, and in the event that Susan did not survive her, Meagan as her Executor and Trustee.
Clause 5 of the 1998 Will relevantly provides that upon the deceased's death and after payment of all her debts, funeral and testamentary expenses, she gives the residue of her estate as follows:
My property known as unit B 11 Bateman Road Mount Pleasant … to my daughter Susan Faye Smart of 952 Pinjar Road Pinjarra Western Australia. To my daughter Susan Faye Smart of 952 Pinjar Road Pinjarra WA the proceeds of the AMP Personal Insurance Policy number W4001906‑K.
My furniture, personal effects and money in my Commonwealth Bank Account number 7661025584 to be divided equally between my Daughters Ainslie Joy Perkusich and Susan Faye Smart.
On 28 September 2006 the deceased made an Enduring Power of Attorney by which she appointed Susan and Meagan jointly and severally as her Attorneys.
On 27 September 2007 the deceased revoked the Enduring Power of Attorney previously given to Susan and Meagan.
On 26 August 2010 the deceased made an Enduring Power of Attorney by which she appointed Robyn as her Attorney. On the same date Robyn executed a document by which she recorded her acceptance of the appointment as the deceased's Enduring Power of Attorney.
Some relatively short time after 31 March 2011 the deceased told Robyn that she wanted to make a will. The deceased asked Robyn to find someone who could make a will for her.
On 7 July 2011 Robyn, as a result of the deceased's request, contacted the law firm Haynes Legal. Robyn had never had any prior dealings with Haynes Legal. Robyn arranged for the principal of Haynes Legal, Mr Paul Haynes, to meet with the deceased on 15 July 2011 for the purpose of taking the deceased's instructions for the preparation of her will.
On Friday 15 July 2011 Mr Haynes met with the deceased (who was at the time 91 years old) at Anchorage Aged Care (Anchorage) in Mindarie. Anchorage was the high level aged care facility in which the deceased was living at the time. At the time the deceased was very frail, virtually blind and had a very significant hearing impairment. During the meeting Mr Haynes took instructions from the deceased for the preparation of a will for her. The instructions that the deceased ultimately provided to Mr Haynes were that she wanted her grandchildren Robyn and Michael to be her executors and for her estate to be held on trust for her great grandchildren in equal shares until they reached the age of 21.
At the end of his meeting with the deceased Mr Haynes obtained from the nurse at Anchorage the details of the deceased's doctor. He ascertained that the deceased's general practitioner was Dr Rudolf Bohmer of Brighton Beach Medical Practice in Merriwa.
On 16 July 2011 Mr Haynes sent a letter to Dr Bohmer. In his letter Mr Haynes stated that he had been instructed by the deceased in connection with the preparation of her will. Mr Haynes requested confirmation from Dr Bohmer that in his opinion the deceased had the necessary testamentary capacity to make her will. He informed Dr Bohmer that testamentary capacity consists of:
1.appreciating the effects of will‑making and the consequences thereof;
2.having regard to the extent of the assets being disposed of by the will;
3.having regard to all potential claims that may be made against the estate; and
4.being of sound mind.
By 16 August 2011 Mr Haynes had not heard back from Dr Bohmer. Accordingly on that date his firm sent a follow up facsimile to Dr Bohmer.
On 6 September 2011, as a result of receiving the correspondence from Haynes Legal, Dr Bohmer met with the deceased to undertake a testamentary assessment of her. Having assessed the deceased Dr Bohmer concluded that the deceased did have the necessary testamentary capacity to make a will. Accordingly, on 6 September 2011 he sent a letter to Mr Haynes that was in the following terms:
Thank you for your letter dated, 16/07/2011, requesting a report for the above named patient. My apologies for the delay in the report.
I visited [the deceased] on the 6th of September to determine if she is capable of making a will. I had a long discussion with [the deceased] in the presence of Eva, one of the nursing staff.
[The deceased's] assets included the sale of her house in Mt Pleasant, the contents of that home and funds that she has in her bank account. She has 2 daughters, Susan Smart and Ainslie Perkusich. Her granddaughter Robyn is her power of attorney. Her wish is to leave all her assets to her great granddaughter Bethany Perkusich.
My opinion is that she appreciates the effects of Will making and the consequences thereof. She seems to have a clear understanding of the extent of her assets. She also have [sic] an understanding of potential claims that may be made against the estate. I am of the opinion that she is of sound mind.
After receiving Dr Bohmer's letter Mr Haynes made an appointment to see the deceased at Anchorage on 22 September 2011 for the purpose of having her sign the will that he had prepared for her.
On 22 September 2011 Mr Haynes met with the deceased at Anchorage. He read to the deceased the will that he had prepared for her which reflected the instructions ultimately given to him during his meeting with the deceased on 15 July 2011. During this process he made one handwritten amendment to the will at the request of the deceased for the purpose of making clear that the beneficiaries under the will were to be the 'biological' great grandchildren. Mr Haynes did not question, or speak to, the deceased about the statement that she had made to Dr Bohmer that she wanted to leave all her assets to her great granddaughter Bethany.
After he had read the will Mr Haynes told the deceased that he would find a witness. However, he was unable to find anyone to be a second witness. He then returned to the deceased and said, in substance, that he could not find a witness, that he or somebody from his office would have to come back, and that he would get the deceased to sign the will now as he was there. He then had the deceased sign the will and the amendment and he signed the document as a witness.
During the meeting Mr Haynes told the deceased that he had received a report from Dr Bohmer in which Dr Bohmer confirmed her capacity to make a will. The deceased responded by saying, 'I knew I hadn't lost my marbles'.
When Mr Haynes returned to his office he prepared a further typed version of the will which incorporated the handwritten amendment that he had made to the will that the deceased had signed earlier that day (that is, which incorporated the words 'who are the biological children of my grandchildren').
The next day, 23 September 2011, Mr Haynes arranged for his wife Ms Alyson Haynes (Alyson), and his daughter Ms Natasha Haynes (Natasha), both of whom worked as assistants in his firm, to attend on the deceased and to have her sign the amended will, that is, the 2011 Will, in their presence.
On 23 September 2011 Alyson and Natasha attended Anchorage and arranged for the deceased to sign the 2011 Will. Natasha and Alyson witnessed the execution of the 2011 Will.
Clause 1 of the 2011 Will is in the following terms:
I REVOKE all former Wills and Codicils made by me AND DECLARE this to be my last Will and Testament.
By cl 2 of the 2011 Will the deceased appoints Robyn and Michael to be the Executors and Trustees (referred to thereafter in the document as 'My Executor') of her estate.
Clause 3 of the 2011 Will provides:
I GIVE all of my real and personal estate, wherever situated (my estate) to my Executor UPON THE FOLLOWING TRUSTS:
(a)to pay from my estate all my just debts, funeral and testamentary expenses, probate, unpaid taxes and other like duties and taxes payable on or in respect of my estate and the costs involved in the execution of the trusts of my will; and
(b)to HOLD the balance then remaining (the residue of my estate) on trust for such of my great grandchildren who are the biological children of my grandchildren who survive me and attain the age of 21 years and if more than one as tenants in common in equal shares.
Clause 4 of the 2011 Will specifies the powers that Robyn and Michael have as Executors and Trustees in addition to powers conferred by law. One of the powers, which is specified in cl 4(f), is as follows:
[T]o apply the whole or any part of the income and capital of the vested or contingent share of any beneficiary toward the maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support of such beneficiary…'
Clause 5 of the 2011 Will, which is headed 'Declaration', is in the following terms:
I have considered my daughters AINSLIE JOY PERKUSICH and SUSAN FAYE SMART. Both daughters have been adequately provided for by me during my lifetime and I feel sure they will both agree to my estate being held in trust as directed for the benefit of their own grandchildren.
Once the 2011 Will had been signed by the deceased Mr Haynes destroyed the will that had been signed by the deceased in his presence on 22 September 2011.
The assessments of the deceased's abilities and mental state from 2006 to 2011
At this point it is convenient to refer to a number of the various assessments of the plaintiff's abilities and mental state that were undertaken during the period from 2006 up until the time that she executed the 2011 Will. The evidence in this regard revealed the following.
On 29 August 2006 the deceased was admitted to St John of God hospital Murdoch (SJGH Murdoch) with back pain which she suffered when she moved a brick paver at her home (exhibit 13). It was ultimately ascertained that she had a compression/crush injury to her lumbar spine (exhibit 16). The deceased remained in SJGH Murdoch until 14 September 2006.
On 14 September 2006 the deceased was, at the instigation of Susan and Meagan, transferred from SJGH Murdoch to the Joondalup Health Campus (JHC) for rehabilitation and ongoing care. JHC was closer to where Susan was living at the time.
On 18 September 2006 the deceased, while a patient at JHC, underwent a standardised Mini Mental State Examination (MMSE) and Geriatrics Depression Scale (GDS) test. The deceased scored 26/30. She lost two points on delayed recalls and a point on each of the day and date. Her GDS was 5/15 which was within normal range.
On 19 September 2006 Susan and Meagan in effect expressed concerns to medical staff at JHC about the deceased's ability to care for herself in her own home (exhibit 15). They told the medical staff that they had in the last six months noticed a decline in the deceased's cognition and that she was suffering from short term memory loss. They expressed the view that it would be unsafe for the deceased to return to live at her home by herself. They requested that the deceased be assessed so that the option of residential care for the deceased could be considered.
During the period 20 September 2006 to 10 October 2006 the deceased, while still a patient at JHC, was assessed by an Aged Care Assessment Team (ACAT) (exhibit 62). The record of the ACAT assessment listed the plaintiff's diseases and disorders to be dementia, macular degeneration, deafness, osteoporosis, shingles and a crush injury to the lumbar spine. In the course of the ACAT assessment the deceased sought approval as a care recipient to access residential aged care.
The conclusion expressed in the record of the ACAT assessment was that it was no longer safe for the deceased to live alone due to her dementia, and that the deceased had been assessed and approved for low level residential care. The deceased had never previously been formerly diagnosed as suffering from dementia. The basis for the identification of dementia as being one of the deceased's disorders is not clear from the record of the ACAT assessment.
During the deceased's time at JHC Susan and Meagan continued to inform medical staff, in substance, that the deceased was not capable of living by herself in her home. They also informed medical staff that the deceased was not capable of managing her own finances.
On 23 November 2006 the deceased was discharged from JHC to Brightwater Kingsley Interim Care (KIC) pending the finding of a suitable low level residential aged care facility for her. At this point in time the deceased was content to be placed in residential care.
In a letter to KIC dated 23 November 2006 Dr Jake Harper, a consultant physician in rehabilitation and aged care who was attached to JHC, listed the deceased's diagnoses to be osteoporosis, an L1 crush fracture, dementia, hypertension, depression, mild liver function abnormalities and hyponatraemia (exhibit 19). Dr Harper stated in his letter that the deceased had some mild paranoia and agitation and had agreed that it would be in her best interests to seek residential care.
On 15 January 2007 Meagan provided further information about the deceased to medical staff at KIC (exhibit 39). She in effect repeated the concerns of her and Susan about the deceased's cognitive decline over the last six months and short term memory loss (STML). She also reported unwarranted and out of character emotional and verbally aggressive outbursts by the deceased directed towards family members. She stated that she and Susan had given consideration to all of these matters before accepting the previously made decision that the deceased should be placed into residential care.
On 15 January 2007 the deceased was, on referral by her general practitioner Dr Daryl Hollingworth, assessed by the Joondalup Older Adult Mental Health Service (JOAMHS) due to her having expressed suicidal thoughts (exhibit 20). The assessment was carried out by Dr Prakriti Gopinathan, a psychiatric registrar attached to the JOAMHS. On assessment it was found that the deceased had expressed the suicidal thoughts out of frustration due to the fact that she did not want to be placed into care and wanted to return home.
During the assessment the deceased obtained a score of 23/27 on MMSE. She lost a point on date and day, a point on calculation, a point on orientation of space and a point on delayed recall. She was found not to exhibit any deficits in attention and concentration and to be orientated to place, time and person. She made clear that although she did initially accept that she would not go home, she did so because she was not fully recovered from her injury, and that she now was recovered and wanted to go home.
On 25 January 2007 the deceased was reviewed by Dr Gopinathan. The review was for a competence assessment (exhibit 39). Dr Gopinathan found that the deceased was orientated, alert and coherent, that she was able to tell him the reasons behind her stay at KIC and that she was able to tell him her next of kin details. There was no evidence of depressive symptoms, psychosis or major cognitive decline. During the assessment the deceased was adamant that she wanted to return home.
On or about 16 February 2007 Dr Gopinathan arranged for the deceased to be reviewed by a consultant psychiatrist, Dr Mathew Samuel (exhibit 74). Dr Samuel decided that due to the deceased's mild dementia she did not have the capacity to decide whether she could go home. At the time of the assessment the deceased was still adamant that she wanted to go home, and Susan and Meagan were still adamant that the deceased needed placement in a residential aged care facility.
On 6 March 2007 Ms Michelle Kay, an occupational therapist at KIC, conducted a full cognitive assessment of the deceased (exhibit 75). During the assessment the deceased obtained a Hierarchic Dementia Scale Score of 107/190 which was well within normal age related limits. A Modified Barthel's Index (MBI) score of 98/100, based on Ms Kay's interview with the deceased, indicated potential and motivation for the deceased to return to community living with support services.
Shortly after the cognitive assessment carried out by Ms Kay, and in any event prior to 14 March 2007, Meagan and Susan sent a relatively lengthy letter (written by Meagan on behalf of both of them) to KIC (although the letter was addressed to 'To whom it may concern') (exhibit 85). In the letter Meagan and Susan, in effect, expressed their strong disagreement with any suggestion that the deceased was capable of returning to live by herself in her home. They set out in considerable detail their account of the deceased's cognitive, emotional and behavioural deterioration from a point in time prior to the deceased's admission to SJGH Murdoch.
On 14 March 2007, as a result of the letter sent by Meagan and Susan, Ms Angela Murphy, a social worker employed at KIC, requested that JOAMHS carry out a further assessment of the deceased.
On 29 March 2007 the requested JOAMHS assessment of the deceased took place. Following the assessment Dr David Brown, consultant psychiatrist, concluded that the deceased was 'quite capable of deciding to return home'. He conveyed this opinion to Dr Hollingworth in a letter dated 29 March 2007 (exhibit 17).
At around the same time Dr Brown prepared an undated and unsigned report to be used in a previously foreshadowed guardianship application to be made by Susan and Meagan with the support of KIC to the State Administrative Tribunal in relation to the deceased (exhibit 86). In his report Dr Brown stated his diagnosis of the deceased to be 'mild cognitive impairment insufficient for a diagnosis of dementia of any type' (exhibit 18). The guardianship application was not proceeded with.
On 3 April 2007 Dr Hollingworth, in a letter addressed to 'To whom it may concern', certified that he considered the deceased to be 'totally sound of mind and quite capable of making her own decisions and returning to live in her own home' (exhibit 25).
On 4 April 2007 the deceased was referred for an assessment by Osborne Park Hospital ACAT. The assessment was completed on that date (exhibit 63). As a result of the assessment it was arranged that the deceased would be discharged to her home on 13 May 2007 with comprehensive community services being put in place (exhibit 23).
On 13 May 2007 the deceased was discharged from KIC to her home. Support services were put in place for the deceased.
On 23 July 2007 the deceased was assessed by Dr Alison Smith, a medical officer attached to the South Metropolitan Area Health Service Fremantle Older Adult Mental Health Service (FOAMHS) (exhibit 27). The assessment occurred at the deceased's home at the request of Susan. At the time of the assessment Dr Smith had been informed by Susan that since the deceased had returned home she had shown verbal aggression and one episode of physical aggression towards her, that is, Susan.
Dr Smith found the deceased to be well presented, pleasant and cooperative. She was deaf. She was reactive and her speech was normal in speed and volume. She described her mood as 'good' with no thoughts of deliberate self‑harm or suicidal ideation. She did recall telling her daughter on one occasion, whilst she was in KIC, that she would kill herself if she was not allowed to go home. However, she had no plans to deliberately self‑harm. There was no formal thought disorder and no hallucinations. She expressed the belief that her daughter had been stealing from her since she gave her daughter an enduring power of attorney. On a MMSE, which was limited by deafness and Senile Macular Degeneration, the deceased's score was 25/28.
Dr Smith concluded that the deceased was an 87‑year‑old woman with possible mild dementia and verbal aggression towards family, notably around financial issues.
Dr Smith reported the results of her assessment of the deceased to the deceased's general practitioner, Dr Leonie Nulsen, in a letter dated 24 July 2007 (exhibit 22).
On 21 August 2007 and again on 10 September 2007 the deceased was, at the request of Dr Smith, assessed by clinical neuropsychologist and special clinical psychologist Dr Michelle Reid (exhibits 28 and 29). The assessment occurred in the deceased's home.
On assessment the deceased's total camcog‑r score was 86/105. This placed her equal to or above the '70th % of her age/education peers'. However, her performance on tasks of executive functioning suggested some difficulties in this area most particularly in her inability to inhibit. Other areas of executive difficulty included 'Borderline Impairment' in deductive reasoning with some mild stimulus bound tendencies. Her 'Low Average' performance on an inductive reasoning task also suggested that she had some mild difficulties with abstract reasoning. The deceased demonstrated adequate conceptual reasoning.
Dr Reid concluded that the deceased had the capacity to make a decision to remain at home and that 'past occupational therapy assessment confirmed her ability to use her conceptual reasoning ability in a practical sense'.
During the period 17 October 2007 to 24 October 2007 the deceased was assessed by FOAMHS. As part of this assessment Dr Smith attended on the deceased on 17 October 2007 (exhibit 26). During this attendance the deceased provided to Dr Smith what was, in effect, a description of her family tree, and her account of her family situation and her relationships with her family members including Susan, Ainslie and Meagan. She described in some detail how she had in the past assisted various members of her family (including Susan and Meagan) financially. She said, in effect, that she had made a will in which she had left most of her property to Susan but that she was going to make a new will, and that she did not want to leave all of her property to Susan because Susan's partner was a 'parasite'.
On the basis of the FOAMHS assessment Dr Smith formed the view that the deceased was competent to deal with her financial affairs, and that there was no evidence of an affective or psychotic disorder.
Dr Smith reported the results of the FOAMHS assessment to Dr Nulsen in a letter dated 29 October 2007 (exhibit 30). In her letter Dr Smith advised that FOAMHS had offered the deceased's family the opportunity to discuss the assessment at a family meeting although it was at that stage unclear whether they would accept this option.
On 14 November 2007 the FOAMHS discharged the deceased from its service to the care of Dr Nulsen (exhibit 31).
On 12 May 2008 Dr Nulsen requested the Fremantle Hospital ACAT to carry out an assessment of the deceased (exhibit 33).
On 28 May 2008 the deceased was, as a result of Dr Nulsen's above referred to request, assessed by Dr Mark Wilson, geriatrician, from the Fremantle Hospital and Health Services Department of Community and Geriatric Medicine (exhibit 34). The assessment was carried out by way of a home visit. During the assessment the deceased did demonstrate some paranoid ideation towards some family members by stating that she believed that one of her daughters had 'sabotaged' her Webster medication pack, and also that they were not actually concerned for her safety but were rather concerned about how she was dealing with her money and how she would distribute her assets when she died. The deceased demonstrated no obvious hallucinations. Dr Wilson found that although the deceased's opinions regarding her family members' motives were quite intense it was difficult to conclude that they were in fact of a delusional character. His impression was that the deceased was not in fact psychotic.
On examination of the deceased there were no focal neurological signs. Her MMSE score was 26/30. She lost two points for short term memory, a point for being unable to read the written instruction and a point for being unable to see the intercepting pentagons well enough to copy them. She was fully orientated to time and place and scored 5/5 on a spelling exercise. She would not attempt the maths exercise.
It appeared to Dr Wilson that the deceased did have some short term memory loss although she was good on most details. She appeared to have negative ideations about some family members although it was not clear that these ideations were of delusional strength.
On 23 June 2009 the deceased was assessed by a Ms Laura Johnson, social worker, attached to the Fremantle Hospital ACAT on the referral of her general practitioners Dr Nulsen and Dr Yin Wee (exhibit 37). During the assessment the deceased presented as alert, orientated and conversant. She answered most questions appropriately, demonstrating insight, good long term memory and an ability to describe events with dates in detail. There was evidence of fixation on issues surrounding family conflict and her previous institutionalisation at KIC. Some mild paranoia or negative ideation towards her daughter Susan and her granddaughter Meagan was demonstrated but this did not appear to be of delusional strength. The deceased also demonstrated a high degree of negativity in regards to her home services and reported lack of consistency.
The deceased scored 28/29 on a MMSE for both calculation and spelling. One question was omitted due to visual impairment and one point was lost for recall.
Functionally the deceased presented as alert and orientated, demonstrating insight into risk factors and cognitive function within normal range. The deceased was continuing to participate in personal care but required increased supervision due to visual impairment and declining confidence. She continued to ambulate and transfer independently with a walking stick or trolley, although osteoarthritis impacted upon her ease of movement. Most of her domestic duties were being completed via formal services due to her visual impairment.
With respect to her continued care the deceased expressed the belief that her progressive loss of vision was impacting upon her ability to continue safely residing at home. She described experiencing social isolation and no longer felt confident completing her activities of daily living. She felt that a residential environment would provide companionship and safety while ensuring that her ongoing care needs were appropriately met.
On the basis of her assessment Ms Johnson concluded that the deceased was suitable, and should be approved, for low level residential care.
On 19 November 2009 the deceased was admitted into full‑time care at a residential facility in Salters Point.
On 5 March 2010 the deceased was admitted to the Frederick Guest Hostel aged care facility (FGH).
On 11 March 2010 the deceased underwent an Aged Care Funding Instrument Psychogeriatric Assessment Scales (PAS) Cognitive Impairment Scale assessment (exhibit 69). She obtained a score of 13 with the normal score being between 16 and 21.
On 13 July 2010 the deceased was assessed by Dr Peter McCarrey, a doctor associated with FGH (exhibit 38). The assessment was carried out in response to a request from a firm of solicitors who had been instructed by the deceased to deal with the sale of her house at 11B Bateman Road Mount Pleasant. Dr McCarrey assessed the deceased as having full legal decision making capacity.
On 1 February 2011 the Case Manager at FGH requested an ACAT review of the deceased. The request was made on the basis that the hostel's assessment of the deceased was that she now required a high level of care.
On 14 February 2011 the deceased was assessed by the Bentley ACAT (exhibit 42). The assessment revealed that since the deceased had been residing at the FGH she had become very frail, her eyesight and mobility had deteriorated and she was now requiring two people to assist with transfers out of bed and chairs, as well as the use of a hoist occasionally. There had been numerous falls. It was concluded that given the deceased's increase care needs the deceased was approved for high level residential permanent care.
On 14 February 2011 a delegate of the secretary of the Department of Health and Ageing approved the deceased as eligible to receive permanent residential care at a high level (exhibit 42).
On 31 March 2011 the deceased was admitted to Anchorage.
On 15 April 2011 the deceased underwent an occupational therapy assessment (exhibit 44). The assessment was carried out by Ms Belinda Ryan. During the assessment the deceased was quietly spoken but able to maintain appropriate conversation with some initiation. She had good comprehension but could become confused due to her hearing loss. She demonstrated a mild impairment in cognition, although a full assessment was not completed due to visual impairment. She had impaired short term memory and orientation. She was orientated to person only not to time or place. She was able to recall two of three objects after one minute and was able to recall four of five objects after three minutes. She was able to recall information in relation to the past and family, although she demonstrated some confusion in relation to the number of her grandchildren and great grandchildren.
On 31 May 2011 the deceased was assessed for aged care funding by a clinical nurse manager at Anchorage (exhibit 45). On assessment the deceased obtained a PAS Cognitive Impairment Scale score of 6.8 which equated to a moderate cognitive impairment. The assessment revealed the deceased to have significant problems in the performance of everyday activities, that she required supervision and some assistance with personal care, that she rapidly lost her memory of new material and retained only highly learned material, that disorientation to time and place was likely, and that she would possibly communicate with only fragments of sentences. The clinical nurse manager assessed the deceased as having a moderate cognitive impairment.
The lay witnesses
I turn now to the evidence given by the lay witnesses that bears upon the previously identified questions for determination.
The first plaintiff - Robyn Power
Evidence
Robyn made two statements, one dated 31 July 2017 (exhibit 78) and the other dated 27 September 2017 which was prepared in response to the statements of Susan, Meagan and Ainslie (exhibit 79).
Robyn's relevant evidence‑in‑chief was as follows.
Her mother Ainslie and her father Stevan Gledich split up when she was a baby. Her mother married John Perkusich in about 1970.
When her parents split up her mother, her older brother Mick (Michael) and her moved in with her grandparents and lived with her grandparents until her mother married John Perkusich. After this her family would visit her grandparents regularly. She used to spend some of her school holidays with her grandparents.
After her grandfather died she visited the deceased regularly with her family.
The deceased often said to her that Michael would be alright because he would inherit his father's property.
Her mother stopped seeing the deceased. She does not know when her mother stopped seeing the deceased. She does not know why her mother stopped seeing the deceased. Her mother and the deceased were still talking when her parents moved to Dongara in about 1988. She was about 23 at the time.
Aunty Sue (Susan) visited the deceased on the weekends until Aunty Sue started to see a man called Harvey. She thinks this was in the early 2000s. Aunty Sue took Harvey to visit the deceased occasionally until the deceased told her that she had told Aunty Sue that she did not want Harvey in her home.
She knows that Aunty Sue visited the deceased on weekends because she also visited the deceased about once a week and would call the deceased to organise the day. The deceased would tell her the day Aunty Sue was visiting and they would fix another day for her to visit.
The deceased did not like Harvey. The deceased called him the 'Sniffer Dog'. The deceased said something to her like:
I don't want him in the house. Now [Aunty Sue's] got Sniffer Dog she doesn't want anything to do with me. She said she was going to look after me.
For the same reasons that she knew that Aunty Sue called on the deceased, she knows that after Aunty Sue had met Harvey Aunty Sue would rarely visit the deceased.
The deceased was very active until her eyesight started to fail in the early 2000s. Until then the deceased was very active and independent.
In around 2002 she noticed that the deceased did not like using the stove. The deceased told her that she was afraid that she might not see that it was still on. The deceased also told her that her eyesight was failing.
The deceased received two fortnightly payments. One was from GESB, a superannuation fund. The other was a war widow's pension. In total the deceased received about $1,300 per fortnight.
The deceased kept cash in the house to pay for things she needed or work that had to be done around the house. She knows this because from time to time the deceased asked her to take cash from an envelope that the deceased would keep in a pocket of a jacket in her wardrobe to pay workmen or to give as a Christmas present. She observed the deceased with money. The deceased was always very careful with her money. The deceased would never leave money lying around the house.
When the deceased was in JHC in 2006 the deceased told her that Aunty Sue and Meagan were telling the hospital staff that she was 'demented'. At this time Aunty Sue was managing the deceased's money. The deceased said that she was angry with Aunty Sue and Meagan for saying these things.
In or around early to mid‑2007 the deceased moved back into her own home. At some point the deceased asked her to find out if the defendant and Meagan still held her Enduring Power of Attorney.
The deceased liked her (that is, Robyn's) brother Stevan. Soon after the deceased returned home the deceased gave Stevan and his then wife Samantha the job of paying her bills.
In early 2009 Aunty Sue called her and said something like, 'Nanna's bills are not being paid will you talk to Nan to find out why?' She then spoke to the deceased. The deceased did not know why the bills were not being paid. She took the deceased to the Commonwealth Bank. She found out that all the money that the deceased was receiving from her superannuation and her pension was being withdrawn from the deceased's account on the same day that the payments were being deposited into the account. She helped the deceased open a new bank account and arranged for the payments to be deposited into the new account. She did this to stop Stevan and Samantha taking the deceased's money.
The new account was opened on 30 March 2009 (exhibit 80). She took the deceased straight to the bank without first discussing the matter with Stevan because she knew that the deceased had already given Stevan about $40,000 from an AMP insurance policy account. She knows this because it was discussed at a family meeting between her, the deceased, Aunty Sue, Meagan, Stevan and Samantha that was held at the deceased's home.
She contacted the deceased's service providers who required money to be paid immediately to continue the deceased's services as nobody had yet arranged payment. She paid this money herself as the deceased had literally no money left. The deceased later reimbursed her what she had paid and caught up on the overdue payments very quickly as the deceased's payments were no longer being siphoned by Stevan.
On the day or the day after the payments were due to be paid into the deceased's old account (the one that was being closed), the deceased told her that Stevan had called her and abused her for stopping the money. The deceased said that she told Stevan that he had not paid her bills. She then took over the payment of the deceased's bills.
At the deceased's request she arranged for the deceased to give her an Enduring Power of Attorney. She does not remember when the deceased made this request. She used the Enduring Power of Attorney to apply for placements in care facilities for the deceased.
When the deceased first moved into FGH she was able to walk with the aid of a walking frame from her room to the sitting area albeit very slowly. The deceased's loss of mobility was part of the reason the deceased was required to move to a high care facility.
When the deceased was at FGH she visited the deceased at least three times a week. Since 2007 she had been working at Harvey Norman and City West which was not that far from FGH. She was the contact for the deceased for the deceased's entire time at FGH.
The deceased was moved to Anchorage because it was a high care facility and 'because Aunty Sue told her that she wanted the deceased to be close' to Aunty Sue.
On a date that she no longer remembers, but not long after the deceased was admitted to Anchorage, the deceased said to her that she wanted to make a will. The deceased said something like, 'Can you get someone to make a will for me?'
She googled 'mobile wills service' or something similar. She selected a site that read 'Wills at Home'. This brought up information about Haynes Legal.
She does not remember ringing Haynes Legal and making an appointment. However, she must have done because she met Mr Paul Haynes with the deceased not long afterwards. She had never had any dealings with Haynes Legal or Mr Haynes before this time.
She remembers the conversation that she had with the deceased and Mr Haynes on the day that she met Mr Haynes. She thinks both she and Mr Haynes were seated either side of the foot of the deceased's bed.
Mr Haynes went up to the deceased and introduced himself to the deceased. She does not remember if Mr Haynes and the deceased shook hands.
Mr Haynes had a pad and was writing things down. She does not remember the exact words used. The thrust of the meeting was as follows:
1.The deceased said to her that she wanted to leave everything to her. She said that she did not want it. The deceased said that she trusted her to decide 'who gets it'. She said that she did not want that responsibility. The deceased then said that she would leave 'it' to Bethany. She said that she did not think that was fair on the other kids 'but that if that is what you want to do'. By using the word 'kids' she meant the deceased's great grandchildren;
2.Mr Haynes said to the deceased that it would not be unusual for her (Robyn) to get something because she had been responsible for the deceased. She said, 'No, then they'll be saying you're ok', meaning that she had looked after herself;
3.The deceased paused and looked like she was thinking. The deceased then said, 'Alright, I'll leave it to all great grandchildren; my blood related great grandchildren';
4.At some point Mr Haynes suggested that the great grandchildren share on the basis of an equal distribution to the grandchildren. Mr Haynes gave as an example that if the estate was worth 'say $300,000 [t]his would mean that my two children would receive $150,000 and that Mick's four children would each receive $75,000'. The deceased rejected this idea. The deceased wanted each great grandchild to take an equal amount;
5.At one point Mr Haynes asked what age the great grandchildren would get funds. The deceased said '21'. She said, '25 would be a good age'. The deceased disagreed and said, '21, that is the age';
6.Mr Haynes then asked the deceased about her assets. The deceased said she had money from the sale of her house;
7.At some point Mr Haynes said, 'Why are you not leaving anything to your children? The deceased responded that she had given her children her property in Dunsborough in equal shares. The deceased said that Susan had given her share to Meagan and that Ainslie had sold her share to Meagan for only $50,000 when the property was worth over $300,000. The deceased said that she had already given her children enough. The deceased said that she wanted the great grandchildren to use the money as a deposit on a house. She recalls Mr Haynes saying that it could not be stipulated in the will what the great grandchildren could use the money for; and
8.At this point she left the meeting. She does not recall whether or not Mr Haynes asked her to leave.
She thinks that Mr Haynes mentioned at the meeting that he would arrange for the deceased to see the deceased's doctor prior to completing the will.
She did not discuss the will or its contents with either Mr Haynes or the deceased after this meeting.
She received a letter from Mr Haynes dated 9 November 2011 with the attachments specified in the letter, namely the original will (that is, the 2011 Will), a copy of a letter from Dr Bohmer and an invoice from Haynes Legal. She read the will, the letter from Dr Bohmer and the invoice which she paid. The original version of the will was the only version of the will that she ever saw. She did not see any drafts. She did not arrange the appointment with Dr Bohmer and was not present when Dr Bohmer saw the deceased.
She kept the original will at her home. She told the deceased that the will had arrived.
She does not recall calling Mr Haynes after she had met him at Anchorage or receiving a call from his office.
The deceased always spoke to her normally. The deceased never got upset with her in anyway.
At no stage during the deceased's life did she get the impression that the deceased had any memory or other mental problems. The deceased's eyesight and hearing became quite bad towards the end of her life but she was always able to deal with this in order to communicate with the deceased. She talked louder and made sure that she was facing the deceased. On one to one the deceased could hear. The deceased had hearing aids but told her that she did not like wearing them because they sometimes made a buzzing noise in her ear. This was mainly caused by an issue with the battery. The deceased rarely used the hearing aids in her presence and they were always able to communicate fine.
The deceased loved listening to the football on the radio and watching the football on the television. She noticed when the deceased was in Anchorage that the deceased could not distinguish the players. She would therefore sit by the deceased and give her a commentary of who had the ball and who scored which the deceased enjoyed.
She did not try to apply for a grant of probate of the deceased's will for a while because she wanted to delay the time the older great grandchildren received the money. She thought 21 was too young. The money in the deceased's estate could just earn interest while the children waited.
She did not tell her mother or Aunty Sue about the will because they were not in it.
From dealing with the deceased's finances when she had held the deceased's Enduring Power of Attorney she knows that the deceased has funds of about $800,000, made up of a $300,000 bond with Anchorage and $500,000 with the Commonwealth Bank.
Her memories of the deceased were of an independent woman who cared for her family. She was generous and always willing to help all of them.
The deceased never held a driver's licence but this never stopped her getting around by walking or public transport. The deceased's loss of mobility was her loss of independence.
Her mother, Ainslie, only visited the deceased four or five times in the year that the deceased was at FGH. On one occasion her mother said to her words to the effect that she did not visit the deceased on her own.
On one occasion she picked up her mother to take her to visit the deceased at Anchorage. On the way she said to her mother words to the effect of, 'why do you only visit Nanna with other people?' Her mother said something like she was not comfortable visiting the deceased on her own.
When she took over managing the deceased's money she explained to the deceased that as she was a single working mum it would be simpler to make payments via the internet as that was how she paid her own bills. She explained to the deceased that she and the deceased would both have a card for this new account and that she would print out statements to show the deceased that her bills were being paid and so she could see where her money was going. The deceased said something like, 'that is good' or words that made it clear to her that she wanted the internet account.
She and Meagan were not with the deceased when the deceased passed away. Meagan left early in the evening and she left very late. She had just got home and into bed when Aunty Sue called to say that the deceased had passed. She drove back and stayed with the deceased until the deceased was taken away.
The deceased never mentioned to her that someone was going through her house and stealing.
The family meeting in late 2007 was called to discuss the money taken by Stevan. However, the deceased did say at this meeting words to the effect that she intended to leave her property to her great grandchildren. She recalls saying something like, 'What about Meagan?' because as that time Meagan did not have any children.
At no time while she was at the meeting did the deceased demand or request that everyone go into the spare room to see the spare bed. Stevan and Samantha arrived at the meeting after her and left before her. She was sitting near the deceased during this meeting and did not hear the deceased mention anything about the mattress or the spare room at any time.
During the time that she was at the meeting the deceased did not make any statement to the effect that she was going to get a lawyer and have a will drafted leaving everything to Bethany. However, she (Robyn) had a big argument with Stevan over an unrelated matter and she left the meeting shortly after Stevan and Samantha left, and before Susan and Meagan left.
She never found the deceased to be 'spaced out' or not being aware of what was happening around her. She would knock on the door and the deceased would answer the door. They would sit and chat. She would make the deceased a cup of tea. The deceased told her about Samantha visiting and taking her shopping.
She took the deceased to see FGH prior to accepting the placement. The deceased said words to the effect that she liked that she was still in the area she had spent so much of her life in, and that she liked the large open activities room. From observing the deceased at FGH the deceased enjoyed the walk to and from her room to the activity room, as when she was at Salters Point she never liked that she was on the first floor and rarely left her room.
At Anchorage the deceased did not require help to the dining room because she was disorientated. She required the assistance due to her mobility issues.
The deceased knew she was at Anchorage and never said anything to her about being anywhere else. At one point when the deceased first moved to Anchorage she thought that the deceased might like to go for a drive to see the new area she had moved to. The deceased said that she did not because the beach was too windy.
The deceased was a very proud woman and had always been so strong and independent. Therefore, for the deceased not to want to participate in activities in which she was not able to excel due to her mobility and sight deterioration could hardly come as a shock to anyone who understood her.
In cross‑examination Robyn gave the following additional evidence.
She remembers parts of the conversation that occurred in the deceased's room with Mr Haynes.
She does not remember whether she arrived before or after Mr Haynes. She does not remember whether she was already in the room with the deceased when Mr Haynes arrived. She can just remember Mr Haynes going up to the deceased and introducing himself and shaking her hand. It is possible that she introduced Mr Haynes to the deceased.
She does not know if Stevan, when he took the money out of the deceased's bank account, stole the money or took the money with the deceased's permission. The deceased wanted her to change the bank account because her bills were not being paid. The deceased did not want Stevan to have the responsibility of paying her bills.
She knows that at the meeting that took place at the deceased's house the deceased said that she had given the AMP insurance policy money to Stevan. She is 100% sure that the deceased said at the meeting that she had agreed to Stevan cashing in the AMP insurance policy. Aunty Sue and Meagan were at the meeting.
She could not say how often the deceased had said to her that 'Mick will be alright because he will inherit his father's property'. The deceased said this to her when she was younger. The last time the deceased said this to her was many years ago, prior to the time that she took over responsibility for looking after things for the deceased and probably prior to 2006. The deceased said this in general conversations when she was visiting the deceased at home and when the deceased was still living at home.
The only time she remembers having any discussion during the period 2006 to 2011 with the deceased about who she was going to leave her estate to was at the family meeting that Meagan and Aunty Sue were at.
She agrees that she was the closest grandchild to the deceased before the deceased signed the 2011 Will. She was looking after the deceased's finances at that time. After the deceased had been put into a facility in 2006, Susan and Meagan were trying to keep the deceased in the facility. They were unsuccessful. Up until the time that the deceased was allowed to go back home Susan and Meagan had been looking after the deceased's bank account.
During the meeting with Mr Haynes she knows that she left and that she definitely did not go back into the deceased's room.
She was in the room when the deceased said that she wanted to leave everything to her. She said to the deceased that she did not want that responsibility. She believes that the deceased then said something about leaving her estate to Bethany. When the deceased said this, she said, 'well that's up to you but I didn't think it was fair'. It is not her memory that the deceased then persisted with her expressed intention of leaving the estate to Bethany.
She does not remember there being any discussion with the deceased about secret trusts when she was in the room.
She does not know if the deceased agreed with her that she should not leave the estate to Bethany. The deceased did not agree or disagree. She does not know if the deceased agreed or disagreed. However, the deceased then changed her mind from Bethany to the great grandchildren.
She had not told Mr Haynes anything about her relationship with the deceased. She does not know how Mr Haynes knew about her relationship with the deceased. However, it would have come from that meeting because she had not met Mr Haynes before. Her relationship with the deceased may have come up in the conversation while they were all in the room but she does not remember.
After she had said to the deceased that she did not think that it would be fair for all of the estate to be left to Bethany, Mr Haynes did say to the deceased that it would not be unreasonable for the deceased to leave her (Robyn) money because she had been responsible for the deceased. It was at this point that she (Robyn) said, 'No. Then they will be saying "you're ok"', meaning that she had looked after herself.
She thinks that the correct sequence was first the deceased said she wanted to leave all her the estate to her, secondly all of the estate to Bethany, and thirdly to her 'blood great grandchildren'.
From what the deceased said, she was going to leave her estate equally to her great grandchildren. She does not know if there was a mention of how many great grandchildren there were. The deceased thought that the estate was going to be distributed into equal parts to her great grandchildren.
She does not accept that during the meeting she was in a very controlling position over the deceased. Nobody controlled the deceased. She did not instruct the deceased to do something different. She said that she would not accept the estate. What the deceased chose to do after that was up to the deceased. She does not accept that the deceased regarded her views on what she should do with her estate as very important. The deceased was a strong woman. She knew her own mind.
She does not recall there being any discussion about her and Michael being co‑executors. However, the deceased must have said that she and Michael were going to be co‑executors because she feels that she knew that she and Michael were going to be co‑executors when she left the room. This makes her think that the conversation about this occurred although she does not actually remember it.
It may have been the deceased or it may have been Mr Haynes who suggested that she and Michael were to be the executors. She knows that it was not her who suggested it.
She does not know what the deceased said during the meeting about how many great grandchildren she had. She does not have any recollection of the deceased telling Mr Haynes that she had eight great grandchildren.
As to her recollection of the questions that Mr Haynes asked during the meeting, she thinks that Mr Haynes asked the deceased what assets the deceased had to leave. She does not recall telling Mr Haynes what the deceased's assets were but it could have been either her or the deceased. She does not know. It was just a conversation.
The deceased did tell Mr Haynes that she had given the Dunsborough property to her daughters. She remembers this because Mr Haynes asked the deceased why she was not leaving money to her children and the deceased told Mr Haynes that she had given the Dunsborough block to her children and that they were taken care of. The deceased told Mr Haynes this while she was in the room. She definitely recalls this.
She knows that Mr Haynes asked the deceased about why she was not leaving anything to her grandchildren and that the deceased answered this question although she cannot recall 'anything sort of specific'.
She does not recall the specifics of the deceased explaining what she had left to her grandchildren or how she had dealt with her grandchildren over the years because it was a conversation that the deceased and Mr Haynes were having. She was just there. If she had realised what was going to happen she would have paid a lot more attention. But to her it was pretty straight forward. She just sat with the deceased because the deceased did not know Mr Haynes. She sat with the deceased and when the deceased was comfortable and Mr Haynes seemed good and could communicate with the deceased she left the room.
She cannot remember how long she was in the room for. She knows that she left before anything was finalised.
While she was in the room she would be 'in and out' in the sense that she was not focussing on the conversation. If she was asked something then she would obviously answer, but she was not sitting there having a conversation.
She was in the room to look after the deceased. She was not in the room to make sure the deceased did not do anything which would not be appropriate.
Before she went into the meeting with the deceased and Mr Haynes, she had no idea that she might be a beneficiary of the deceased's estate. It made no difference to her. The only thing that she probably would not have been particularly happy about is that if the deceased had left her property to Stevan.
She did not tell the deceased what to do. The deceased did not get told what to do.
When she left the meeting she did not understand that there had been a discussion about her being a trustee. She does not actually know what a trustee is.
When she left the deceased in her room with Mr Haynes, all that she remembers is going out to have a cigarette. She does not know if she spoke to Mr Haynes again. She does not recall if she went back into the room.
She was not in the room when the deceased made final decisions on anything. She did not know what was in the will until it was sent out. She was just there for a conversation that covered things, but she does not know what was finally decided because she was not there.
She did not discuss with Susan, Ainslie and Meagan the existence of the 2011 Will. She waited until they raised it with her. She did not notify them of the 2011 Will because they were not in the will. She does not understand why she would tell them.
She did not think that she should notify people who may be interested in knowing about the 2011 Will. She only notified people who were in the 2011 Will because that is what she thought she was meant to do. She was not at all concerned that if she notified Susan, Ainslie and Meagan about the 2011 Will and that they were not in it they would challenge it. Susan had specifically said to her that she would not contest the will unless the deceased's property was left to Stevan. Susan said this to her at the family meeting at the end of 2007.
General observations on Robyn's evidence
Although I do have some reservations about the credibility of Robyn's evidence as to her reasons for not informing Susan and Ainslie about the details of the 2011 Will at an earlier point in time than she did (an issue to which I will return later in these reasons), my overall general assessment of Robyn was that she was an honest and reliable, that is, credible witness.
There were, as will become apparent, some discrepancies between aspects of Robyn's evidence and aspects of the evidence given by other witnesses, specifically Mr Haynes, Susan and Meagan. However, where in the case of the discrepancies I state my preference for the evidence of the other witness or witnesses to the evidence of Robyn, I do so on the basis that Robyn's evidence on the matter in question was the result of an honest mistake in recollection or perception.
The defendants make a number of criticisms of Robyn's evidence in support of their contention that on important issues of fact she was not a credible witness, and that as a consequence her evidence does not support a finding that the deceased had testamentary capacity or knew and approved of the contents of the 2011 Will. Despite my above expressed view as to the credibility of Robyn's evidence I will, for purposes of completeness, at this point deal with the defendants' principal criticisms of her evidence and explain why I do not accept that they provide a basis for finding Robyn to be a witness lacking in credibility.
First, it is argued by the defendants that Robyn deliberately down played in her evidence, and more specifically in her witness statements, the deteriorating physical and mental condition of the deceased after 2006. Having watched Robyn give evidence I do not accept this to be the case. As I have said, to the extent that Robyn's evidence in relation to the deceased's physical and mental state in the last few years leading up to the deceased's death differs to the evidence of other witnesses, most particularly Susan and Meagan, to which I will refer in due course, my view is that the differences arise from honest mistakes on the part of Robyn in her recollection and/or perception. I note in this context that Robyn was clearly devoted to the deceased, and towards the end of the deceased's life was the relative who was closest to the deceased, and who spent most time with the deceased and most time looking after the deceased. In these circumstances I do not find it surprising that Robyn's recollection of the deceased's abilities and personality is perhaps more favourable to the deceased than the recollections of witnesses such as Susan, Meagan and Ainslie. Further, given the companionship and assistance that Robyn was providing to the deceased in the later part of the deceased's life, and the fact that Robyn was not involved in attempting to keep the deceased in residential care following her initial admission to hospital in 2006, I think it probable that the deceased would have been more favourably disposed to Robyn than to Susan, Meagan and Ainslie and hence would have been far less likely to expose Robyn to some of the 'less endearing' aspects of her personality to which others were exposed.
Second, it is said by the defendants that the evidence that Robyn gave during examination‑in‑chief by way of clarification of a paragraph in the first of her witness statements reflected adversely on her credibility. In the relevant paragraph of her witness statement Robyn, in stating that Mr Haynes during his meeting with the deceased suggested to the deceased that the great grandchildren share on the basis of an equal distribution to the grandchildren, went on to say that Mr Haynes gave an example that if the estate was worth 'say $300,000' this would mean that her two children would receive $150,000 and Mick's four children would each receive $75,000. When questioned about this paragraph in examination‑in‑chief Robyn said that she had not explained the situation clearly. She said that Mr Haynes did give an example but that she did not know if the example she had referred to was the 'exact example'. She said, in effect, that what she was intending to convey was that if the estate was worth $300,000 and there were two grandchildren, the $300,000 would be split between the two grandchildren so that her two children would get $75,000 and her brother's four children would get $37,500.
The defendants contend that the 'arithmetic involved in [Robyn's] change of position is not the point' and that what is relevant is the late change of position by Robyn which is 'strongly suggestive of intervention by the plaintiffs' legal advisers to invite a reconsideration by [Robyn] of her sworn testimony': defendants' closing submissions, [32(a)].
I do not accept the defendants' contention. In my view all that Robyn was doing in this aspect of her evidence was correcting the arithmetical error that was apparent on the face of the paragraph in the statement. She was not changing her evidence as to the substance of the suggestion that she said Mr Haynes made to the deceased, namely that the great grandchildren share on the basis of an equal distribution to the grandchildren.
Third, it is said by the defendants that Robyn's evidence given in cross‑examination after she was shown a letter (exhibit 81) written by Haynes Legal to a firm of solicitors called Summers Legal dated 18 May 2016 (which was written not by Mr Haynes but by a solicitor employed in his firm at the time) in which it was stated that Robyn's recollection of the meeting between Mr Haynes and the deceased was that she introduced Mr Haynes to the deceased, she was present for a short period thereafter, she left Mr Haynes with the deceased and left the building, she was not present when instructions in relation to the will were taken, and she did not attend at the execution of the will was inconsistent with her evidence‑in‑chief and reflected an attempt on her part to bring her evidence more into line with what she had said to the solicitor who had written the letter. The evidence given by Robyn after being shown the letter was the evidence referred to above that when she left the deceased with Mr Haynes all that she remembers is going out to have a cigarette, that she does not know if she spoke to Mr Haynes again, that she does not know if she went back into the room, and that she was not present in the room when the deceased made final decisions. Robyn's evidence was that the reference in the letter to her having told the solicitor that she was not present when instructions in relation to the will were taken was a reference to the fact that she was not present when the final decisions concerning the content of the will were made. Robyn's evidence was also that although she did not dispute what she is recorded in the letter as having said to the solicitor, she could not recall providing the information.
I accept that after Robyn was shown the letter her evidence did change in that whereas before being shown the letter she had said in her evidence that she did not go back into the deceased's room, after being shown the letter she said that she did not know if she had gone back into the room. However, I do not consider this change in her evidence to be of such significance as to warrant the conclusion that she was making a dishonest attempt to bring her evidence more into line with what had been said in the letter. Further, I do not find it inherently implausible (or to use the term put forward by the defendants 'transparently devious': defendants' closing submissions, [32(c)]) that Robyn's statement apparently made to the solicitor employed by Haynes Legal that she was not present when instructions in relation to the will were taken was a reference to the fact that she was not present when the final decisions concerning the content of the will were made. This is particularly so given that a little earlier in her cross‑examination, before she was shown the letter, Robyn had said that she did not know for how long she was in the room for and that she left the room before 'anything was finalised'. In short, Robyn may in her evidence have been mistaken as to the extent to which she was present at the meeting, and indeed based on Mr Haynes' evidence to which I will shortly refer I am satisfied that she was so mistaken. However, I am not persuaded that she deliberately attempted in cross‑examination to tailor her evidence so as to attempt to make it more consistent with the terms of the letter from Haynes Legal to Summers Legal.
In summary, and for the reasons I have stated, I do not accept that the criticisms made by the defendants about Robyn's evidence warrant the conclusion that she was not a generally honest and reliable witness. Nor do I accept that the defendants criticisms levied at Robyn provide a basis for concluding that her evidence does not support a finding that the deceased had testamentary capacity or knew and approved of the contents of the 2011 Will.
Paul Haynes
Evidence
Mr Haynes made his statement on 19 July 2017 (exhibit 56).
Although Mr Haynes did, during his evidence, indicate that he had some independent recollection of his dealings with the deceased, he gave much of his evidence of his meeting with the deceased on 15 July 2011 by reference to his handwritten notes of the meeting and a typed 'attendance note' which he dictated after the meeting. Similarly, Mr Haynes gave the majority of his evidence of his meeting with the deceased on 22 September 2011 by reference to a typed 'attendance note' which he dictated after the meeting.
Mr Haynes' evidence‑in‑chief (omitting those portions to which I have already referred above in setting out the non‑contentious facts) was as follows.
He started his firm Haynes Legal in 2006. He has worked as a sole practitioner in the firm since that time. He has, since his establishment of the firm, practised almost exclusively in wills, inheritance and probate matters.
He made his handwritten notes of the meeting on 15 July 2011 during the meeting. He dictated his attendance note of the meeting on 15 July 2011 either on the day of the meeting or on the day after the meeting. Similarly, he dictated his attendance note of his meeting with the deceased on 22 September 2011 on the day of the meeting or on the day after the meeting.
His handwritten note of his meeting with the deceased on 15 July 2011, his attendance note of his meeting with the deceased on 15 July 2011 and his attendance note of his meeting with the deceased on 22 September 2011 are a 'faithful and true' record of his meetings with the deceased. His attendance note of his meeting with the deceased on 15 July 2011 has a little more detail than his handwritten notes of the meeting because in his attendance note he supplemented his handwritten notes with his recollection of what happened.
When he arrived at Anchorage to meet with the deceased on 15 July 2011 he was met by Robyn who showed him to the deceased's room. He had not previously met Robyn or the deceased.
After being taken to the deceased's room he took instructions from the deceased alone in the absence of Robyn. During the meeting the deceased told him, among other things, the following:
1.Over the years she had helped both her daughters and all of her grandchildren;
2.She had given her half acre block of land in Dunsborough to her daughters Ainslie and Susan, that Susan had transferred her half of the block to Meagan and that Ainslie had sold her half of the block to Meagan;
3.Meagan is one of the children of Susan;
4.The grandchildren are Stevan, Robyn, Michael, Andrew and Meagan;
5. She does not know where Stevan is. She let Stevan look after her money at one point and bought him a car. He used her money to pay debts and to get himself out of bankruptcy;
6.Robyn is the daughter of Ainslie and the one who in the main comes to see her and looks after her. She gave Robyn $5,000 20 years ago for a deposit on a house and $3,000 for a carport;
7.Michael is the third child of Ainslie. He is a 'nice man'. She does not see him much. He lives in Dongara and she gave him money for a car;
8.She cannot remember giving Andrew money but she did buy him a ride‑on lawnmower. Andrew has gone 'off the rails'. She does not know where Andrew is;
9.Meagan, Ainslie and Susan do come to see her sometimes. Robyn comes and sees her more;
7.She knows that she has about $450,000 or probably more in the bank and that she has bond money from where she is living which is about $290,000 but this will reduce; and
8.She wanted to leave her entire estate to Robyn and Robyn could then do what she liked with the money.
He gave the deceased advice in relation to making an outright gift to Robyn, making a gift to Robyn into a half secret trust and making a gift to Robyn under a secret trust.
He made clear to the deceased that in his opinion if she gave all her money to Robyn she was in all probability going to cause discontent in the family, and with an estate of over $700,000 her daughters may very well be put out by this and may look at pursuing a claim under the 'Inheritance Act'. He said to the deceased that he was not saying that her daughters would be able to succeed in any such claim, but they would have the right to consider making such a claim.
At this point during his meeting with the deceased Robyn came and spoke with him and the deceased. The deceased told Robyn that she wanted her whole estate to go to Robyn. Robyn made absolutely clear that she did not wish to have the whole estate. Robyn said that it would not be fair on all the others and she was also equally concerned that she should not have the responsibility of deciding how to distribute the estate.
After Robyn had expressed her views on the matter the deceased stated that she felt that her daughters and her grandchildren had all benefited from her one way or another, and that she therefore wanted to secure her estate to help her great grandchildren.
He then spoke to the deceased again alone. He told her that her daughters would not necessarily be happy about her leaving her estate to her great grandchildren. He advised the deceased that her grandchildren have no right to be unhappy and they only have rights to pursue any claim should their parents predecease her. The deceased stated that her daughters would not, or should not, be unhappy with her securing money for their own grandchildren and therefore they would no doubt be quite happy with what she was proposing to do.
The deceased made it absolutely clear to him that she wanted Robyn and Michael to be the executors of her will, and that she wanted all of the estate to be left in trust for her great grandchildren until the age of 21.
He then discussed with the deceased whether she wanted the estate split into fifths so that the great grandchildren would share equally the one‑fifth that their parent as a grandchild might have had. The deceased stated that she just wanted all of the grandchildren to have exactly the same and the estate was therefore to be divided equally between all of the eight great grandchildren. The deceased instructed him to make clear in the will that the great grandchildren were to be the biological children of her own grandchildren.
The deceased instructed him to incorporate in the will a declaration of her reason for not leaving the estate to her daughters, namely that her daughters had always been looked after and that she is sure that they will agree to the estate being divided between their own grandchildren.
At this point Robyn re‑joined him and the deceased. He advised Robyn what the deceased wanted to do. Robyn stated that she was happy to be the executor of the deceased's will.
He discussed the possibility of instructing a trust company because it was going to be quite a responsibility for Robyn and Michael to be the executors. However, Robyn indicated that she and her brother could look at this once they had commenced the administration of the deceased's estate. The deceased was happy with this and indicated that she would rather have Robyn and Michael as executors than a trust company being formally instructed. The deceased said that she understood that it would be wise for Robyn and Michael to instruct a trust company such as Perpetual Trustees to manage the trust as it is clearly quite a responsibility to hold all the money for several years for the children until they are 21.
During his meeting with the deceased he formed the view that the deceased, although an elderly lady, was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him. He formed the view that the deceased clearly had full testamentary capacity. However, despite being left in no doubt that the deceased was competent to make a will, he regarded her decision to leave her estate to her great grandchildren as unusual because in doing so she was not only cutting out her children, but also her grandchildren. For this reason he thought that it was best to have the deceased's doctor confirm her capacity to make a will. It was against this background that he arranged for Dr Bohmer to provide his opinion as to the deceased's testamentary capacity.
The next alleged fact which the defendants point to as supporting the conclusion that the deceased did not know and approve of the contents of the 2011 Will is that the principal beneficiaries in the 2011 Will are different to the principal beneficiary who the deceased told Dr Bohmer she wished to leave all her assets to, namely Bethany. For reasons that are apparent from what I have said in dealing with the question of whether the deceased was able to comprehend and appreciate the claims to which she ought to give effect, I do not consider that the fact that the deceased told Dr Bohmer that she wanted to leave her estate to Bethany provides a basis for concluding that she did not know and approve of the contents of the 2011 Will at the time that she signed it. Again, I consider that the evidence of Mr Haynes as to what occurred at his meeting with the deceased on 22 September 2011 to be of particular significance in this regard. As I have already pointed out, when Mr Haynes attended on the deceased on 22 September 2011 he read the document that became the 2011 Will to the deceased in stages and the deceased indicated her understanding of the clauses of the document. In these circumstances, and given my finding that the deceased had testamentary capacity, there is no basis for concluding from what the deceased said to Dr Bohmer that the deceased did not know of and approve of the contents of the 2011 Will at the time that she signed it.
Another of the alleged facts which the defendants put forward in support of their contention that the deceased did not know and approve of the contents of the 2011 Will is that Robyn did not disclose the details of the 2011 Will to Susan, Ainslie or Meagan for over two years after the deceased's death. This is the position and I have already referred to Robyn's explanation for her conduct in this regard, namely that she did not tell Susan, Ainslie and Meagan about the 2011 Will because they were not named in the will.
I note that as part of contending that Robyn's failure to disclose the details of the 2011 Will to Susan, Ainslie and Meagan for a significant period of time after the deceased's death justifies the conclusion that the deceased did not know and approve of the contents of the 2011 Will, the defendants point to the failure of the second plaintiff Michael to give evidence. The defendants assert that Michael could have given evidence as to why he and Robyn did not inform Susan, Ainslie and Meagan of the terms of the 2011 Will earlier than they did, and that the unexplained failure of Michael to give evidence on this issue justifies the drawing of the inference that his evidence would not have assisted his and Robyn's case in relation to this issue: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321 ‑ 322.
The decision in Jones v Dunkel is authority for the proposition that the unexplained failure by a party to call a witness may, not must, in appropriate circumstances lead to an inference that the evidence of the uncalled witness would not have assisted the party's case. The rule only applies where a party is 'required to explain or contradict something': Jones v Dunkel (321 ‑ 322); Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 [51] ‑ [53]. Whether a party is required to explain or contradict something depends on the issues in the case as thrown up in the pleadings and by the course of the evidence. If there is no issue between the parties on the matter there is nothing to answer.
I accept that Michael could have given evidence in relation to why he and Robyn did not inform Susan, Ainslie and Meagan of the terms of the 2011 Will at an earlier point in time than they did. Moreover, no evidence was adduced at trial explaining why Michael was not called to give evidence. The issue of why Robyn delayed in informing Susan, Ainslie and Meagan of the terms of the 2011 Will and the inference to be drawn from her conduct in this regard was one that was 'thrown up' by the pleadings and the evidence adduced at trial. In these circumstances I accept that the inference to be drawn from the failure of Michael to give evidence on this point is that his evidence would not have assisted his and Robyn's case, or more specifically, would not have provided any positive support to Robyn's evidence about her reasons for not notifying Ainslie, Susan and Meagan about the 2011 Will until approximately two years after the deceased's death.
Despite my generally favourable view of Robyn as a witness, I am not satisfied that the reason given by Robyn in her evidence for not disclosing the details of the 2011 Will to Susan, Ainslie and Meagan for a significant period of time was the only reason for her failure to do so. I did not find Robyn's evidence on this discrete issue to be persuasive. Rather, I am satisfied, particularly when I take into account the inference that I draw from Michael's failure to give evidence, that another motivating factor for Robyn's conduct in this regard was that she believed that Susan, Ainslie and Meagan would be upset about being overlooked by the deceased in the 2011 Will. Indeed, it would, in my view, be somewhat odd if Robyn did not hold such concerns given that Susan, Ainslie and Meagan were her auntie, mother and cousin respectively. In short, I find that the reasons for Robyn not disclosing the details of the 2011 Will to Susan, Ainslie and Meagan earlier than she did were that she did not believe that she was required to notify them of the 2011 Will given that they were not named as beneficiaries, and also that she believed that they would be upset about being omitted as beneficiaries under the 2011 Will.
The fact that I have found that Robyn was not as candid as she could have been about her motivation for not disclosing the contents of the 2011 Will to Susan, Ainslie and Meagan at some point prior to the time at which she ultimately did so does not, however, support a finding that the deceased did not know and approve of the contents of the 2011 Will. To the contrary, it necessarily follows from my finding as to the reasons for Robyn's conduct in not disclosing the details of the 2011 Will to Susan, Ainslie and Meagan earlier than she did, that I am also satisfied that Robyn's conduct in this regard was not motivated by, and is not indicative of, some suspicion on Robyn's part that the deceased did not know and approve of the contents of the 2011 Will. Consequently, I am also satisfied that Robyn's conduct in not disclosing the details of the 2011 Will to Susan, Ainslie and Meagan for a significant period of time does not provide a basis for concluding that the deceased did not know and approve of the contents of the 2011 Will.
So far as the other facts relied upon by the defendants are concerned, that is the facts which the defendants advance in support of their assertion that the deceased was not able to comprehend and appreciate the claims to which she ought to give effect, the remarks that I have already made in relation to each of these facts in dealing with the issue of the deceased's testamentary capacity apply equally to the assertion that they provide a basis for finding that the deceased did not know and approve of the contents of the 2011 Will. In particular, given my finding that the deceased did have the capacity to, and did in fact, comprehend and appreciate the claims to which she ought to give effect at the time of signing the 2011 Will, I do not consider that any of the facts put forward by the defendants in support of their contention that the deceased did not have this capacity, individually or collectively, provide a basis for concluding that she did not know and approve of the contents of the 2011 Will. In making this statement I am not overlooking the fact that testamentary capacity on the one hand, and knowledge and approval of the contents of a will on the other, are distinct concepts.
There are two further issues that I need to deal with before leaving the question of the deceased's knowledge and approval of the contents of the 2011 Will.
The first of these issues again relates to the failure of Michael to give evidence. The defendants submit that in accordance with the principles in Jones v Dunkel I should draw an inference that Michael's evidence would not have assisted his and Robyn's case in relation to the following matters (defendants' closing submissions, [59]):
1.His observations of the deceased's health between 2006 and 2011;
2.Whether he agreed to be one of the executors;
3.What he received from the deceased during her lifetime;
4.When and how he found out about the terms of the 2011 Will;
5.What his involvement was in the preparation of the 2011 Will that by its terms has his four children as beneficiaries;
6.What he knows or knew about money allegedly being stolen from the deceased; and
7.What he knows about the present whereabouts of Stevan's two children who between them have an entitlement as beneficiaries under the 2011 Will.
The defendants submit that if the contended for inference is drawn this adds yet 'another suspicious circumstance' surrounding the issue whether the deceased knew and approved of the contents of the 2011 Will: defendants' closing submissions, [60].
The plaintiffs' brief submission in response to the defendants' contention is that they accept that the failure to call Michael is unexplained and that the evidence would not have assisted their case, but not that the failure to call Michael creates a suspicious circumstance.
I turn to deal with each of the matters in respect of which the defendants assert I should draw the inference that Michael's evidence would not have assisted his and Robyn's case.
As to the first of these matters, I accept that Michael could have given evidence of his observations of the deceased's health between 2006 and 2011. I also accept that I should infer from Michael's failure to give evidence that his evidence on this point would not have assisted his and Robyn's case. However, given that I have made findings on the evidence in relation to the deceased's health during this period which are broadly consistent with the defendants' contentions in this regard, I do not consider that the inference that Michael's evidence would not have assisted his and Robyn's case adds anything to the defendants' case on the issue of the deceased's knowledge and approval of the contents of the 2011 Will.
As to whether or not Michael agreed to be one of the executors under the 2011 Will, I do not consider that this is a matter which has any material bearing on the question whether the deceased knew and approved of the contents of the 2011 Will. Accordingly, I do not consider that the failure to call Michael to give evidence on this issue is of any significance.
With respect to the issue of what Michael received from the deceased during his life, the defendants did not dispute that Michael did receive at least what the deceased told Mr Haynes that she had given to him, namely money for a car. There was therefore nothing for the plaintiffs to contradict in this regard. This being the case, I do not consider that the failure to call Michael to give evidence in relation to what he received from the deceased justifies the drawing of the inference contended for by the defendants. I do not consider that the failure to call Michael to give evidence on this point adds anything to the defendants' case on the question of the deceased's knowledge and approval of the contents of the 2011 Will.
As to the issue when and how Michael found out about the terms of the 2011 Will, clearly Michael could have given evidence about this matter. However, I do not see how any evidence he could have given on the issue would have any bearing upon the question whether the deceased knew and approved of the contents of the 2011 Will. I therefore do not see the failure to call Michael to give evidence on this issue to be of any significance.
As to the issue of what involvement Michael had in the preparation of the 2011 Will, it is clear on the evidence to which I have referred that Michael did not have any involvement in the preparation of the 2011 Will. I therefore do not consider that the failure to call Michael to give evidence on this issue to be of any moment.
With respect to the issue of the money allegedly stolen from the deceased, I have made findings on the evidence that the $45,000 obtained from the AMP policy was given by the deceased to Stevan as opposed to having been stolen from the deceased. I do not see, in light of the evidence that was adduced on this issue, how any evidence given by Michael could have had any material bearing on this issue. Moreover, I have also found, in accordance with the plaintiffs' case, that neither Susan nor Meagan stole any money from the deceased and that the deceased's beliefs in this regard were unfounded. Therefore, the failure to call Michael to give evidence in relation to the issue of the 'stolen' money is in my view of no significance.
As to the last of the matters pointed to by the defendants in this context, the question of where Stevan's children are is of no relevance to the question whether the deceased knew and approved of the contents of the 2011 Will. Accordingly, once again the failure to call Michael to give evidence on this point is in my view of no significance.
In summary, I am not persuaded that the non‑calling of Michael to give evidence on the above identified matters provides any support for the defendants' case that the deceased did not know and approve of the contents of the 2011 Will.
The second additional issue that I need to deal with relates to the defendants' passing reference in their closing submissions to the 'Noddy Syndrome' as discussed in Nicholson v Knaggs [382] ‑ [387]. The defendants submit that the 'whole of the evidence' points strongly to the operation of the syndrome in the present case: defendants' closing submissions, [34].
The defendants did not adduce any medical evidence dealing with the concept of the 'Noddy Syndrome', let alone evidence suggesting that it operated in the present case. In these circumstances I do not accept the submission that I should find that the Noddy Syndrome operated in the present case and/or that it in any way provides a basis for finding that the deceased did not know and approve of the contents of the 2011 Will.
For the reasons I have stated I am satisfied that the deceased did, at the time of executing the 2011 Will, know and approve of its contents.
Was the deceased prevented by the undue influence of Robyn from exercising her free will when making the 2011 Will?
Undue influence - applicable legal principles
If a will is executed as a result of undue influence it will not be admitted to probate.
The party alleging undue influence must prove the claim: Veale v Veale [166].
To prove undue influence the party making the allegation must prove that the testator's mind was overborne by undue pressure or coercion: Wingrove v Wingrove (1885) 11 PD 81; Re The Full Board of the Guardianship and Administration Board [53]. The party alleging the undue influence must prove that there has been such undue pressure or coercion brought to bear on the testator that the will cannot be said to be the product of his or her conduct: Nicholson v Knaggs [111].
Analysis and decision
The defendants allege that given a number of circumstances surrounding the execution of the 2011 Will it is more probable than not that the only reason the deceased made the 2011 Will (and thereby in effect changed the 1998 Will) was because she was 'easily influenced by [Robyn] and did what [Robyn] told her to do for the sake of quietness': Defence and Counterclaim, [5(b)]. The circumstances surrounding the execution of the 2011 Will that the defendants point to in this regard are, in essence, as follows:
1.The deceased was 91 years of age, significantly cognitively impaired, and extremely physically debilitated and vulnerable;
2. The role that Robyn played during the meeting between the deceased and Mr Haynes on 15 July 2011; and
3.Robyn, 'by securing a benefit for her own children by the terms of the 2011 Will herself derived an indirect benefit given the terms of the testamentary trust in the 2011 Will given that she was also a co‑trustee of that testamentary trust' (Defence and Counterclaim, [5(a)]).
As I have already indicated, there is no question that at the time of signing the 2011 Will the deceased was 91 years old, suffering from dementia, extremely physically debilitated and vulnerable. Despite these circumstances however, I do not accept the defendants' assertion that the deceased was prevented by the undue influence of Robyn from exercising her free will when making the 2011 Will. The evidence to which I have referred simply does not in my view provide any support for the suggestion that Robyn brought undue pressure or coercion to bear on the deceased to the extent that the 2011 Will cannot be said to have been the product of the deceased's conduct. In this regard I particularly note the following matters.
First, the deceased had in the past, well prior to Robyn assuming the role as her primary carer, spoken about changing her 1998 Will.
Second, it was the deceased who requested Robyn to contact a lawyer for her so that she could make a new will. Any decision about a new will being made was not instigated by Robyn.
Third, and as I have already explained in dealing with the assertion made by the defendants that the 2011 Will is irrational, the evidence reveals that there were reasons for the deceased to have wanted to make a new will, and in particular for wanting to make a new will which excluded Susan and Ainslie as beneficiaries. The deceased's reasons may have been harsh, but that is not to the point. The point is that the evidence demonstrates that the deceased did have reasons for changing her will so as to exclude Susan and Ainslie (and for that matter her grandchildren also).
Fourth, the evidence of Robyn, Susan and Meagan was that the deceased was a strong willed woman.
Fifth, there is simply nothing in the evidence of Robyn or Mr Haynes which supports the proposition that Robyn was during the meeting on 15 July 2011 acting in any sort of overbearing way. It was certainly not Mr Haynes' evidence that Robyn appeared to have any undue influence over the deceased during the meeting. To the contrary, and as I have found, Robyn was not present for a significant part of the meeting. In addition, when the deceased initially indicated an intention to leave all her estate to Robyn, Robyn expressly stated that she did not want that to occur. This conduct of Robyn is, in my view, inconsistent with the suggestion that she was bringing undue pressure or coercion to bear on the deceased.
It is of course the case that the deceased would appear to have taken on board Robyn's statements that she did not want the estate left to her, that she did not want the estate left to her on the basis that she could decide who to distribute it to, and that she did not think it was fair to the other great grandchildren for the deceased to leave all of her estate to Bethany. However, the fact that the deceased took on board these suggestions in my view falls well short of establishing undue influence on the part of Robyn. I do not accept the submission made on behalf of the defendants that the evidence reveals that the deceased was 'railroaded' by Robyn into deciding to leave her estate to her great grandchildren.
Seventh, on Robyn's evidence, which was not contradicted, once the deceased had met with Mr Haynes on 15 July 2011 she had no further involvement in the events leading to the preparation and signing of the 2011 Will. She did not discuss it further with the deceased.
Eighth, and following on from the previous point, Robyn was not present during the meeting between Mr Haynes and the deceased on 22 September 2011.
Ninth, the only real potential benefit that Robyn might derive under the 2011 Will is if she decides to exercise the advancement power under cl 4(e) in favour of one of her own children. However, the exercise of this power will always be subject to Robyn's overriding obligations as executor and trustee, and will also only be able to be exercised in conjunction with Michael, the other executor. In any event, the potential benefit is not one that came about as a result of any suggestion on Robyn's part. She did not ask to be the executor and trustee under the 2011 Will. This was the deceased's decision. Nor did Robyn have any knowledge of, or input into, the insertion of the advancement power into the terms of the 2011 Will. As she said when she gave her evidence, she does not really know what a trustee is.
For all of the above reasons, and despite the deceased's age, frailty, physical health issues, vulnerability and dementia at the relevant time, I am not satisfied that Robyn brought undue pressure or coercion to bear on the deceased such that it can be said that the 2011 Will was not the product of the deceased's own conduct. I am satisfied that the deceased's execution of the 2011 Will was not the result of undue influence on the part of Robyn.
Conclusion
For the reasons I have given I would make orders pronouncing the force and validity of the 2011 Will in Solemn Form.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK
13 JUNE 2018
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