Re Will of Aubrey Walter Mason (Dec); - [2012] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RE WILL OF AUBREY WALTER MASON (Dec); EX PARTE THE PUBLIC TRUSTEE [2012] WASC 111

CORAM: SIMMONDS J

HEARD: 25 MAY 2011

DELIVERED : 30 MARCH 2012

FILE NO/S: CIV 1816 of 2009

MATTER :Will of AUBREY WALTER MASON (Dec)
EX PARTE
THE PUBLIC TRUSTEE
Plaintiff
AND
AUSTRALIAN RED CROSS SOCIETY WESTERN AUSTRALIAN DIVISION
First Defendant
PETER WILLIAM RYDER
Second Defendant

Catchwords:

Succession - Wills, probate and administration - Proof of will in solemn form - Undefended trial - Presumption the will was the will of a testator who possessed sound mind, memory and understanding at the time of its execution - Raising of a doubt as to testamentary capacity - Whether residual doubt substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution

Legislation:

Evidence Act 1906 (WA), s 79C
Guardianship and Administration Act 1990 (WA), s 123, sch 5
Public Trustees Act 1941 (WA), s 35, s 36C

Result:

Orders for probate of will in solemn form were made

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant            :     Mr C C Forward
Second Defendant        :     Mr M M Solomon

Solicitors:

Plaintiff:     Public Trustee
First Defendant            :     King & Wood Mallesons
Second Defendant        :     Bowen Buchbinder Vilensky

Case(s) referred to in judgment(s):

Banks v Goodfellow (1870) LR5QB 549
Brown v Wade [2010] WASC 367
Martin v Fletcher [2003] WASC 59
Re Estate of Hodges (Dec); Shorter v Hodges (1988) 14 NSWLR 698
Re Levy (Dec) (No 2) [1957] VR 662
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Roebuck v Smoje [2000] WASC 312
Smurthwaite v Stratford [2007] WASC 68
Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785
The Public Trustee of Western Australia v The Parish of Saints Apostles Peter and Paul [2009] WASC 75
The Public Trustee v Stretch [2002] WASC 147
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

SIMMONDS J:

Introduction

These are the reasons for a judgment given following a trial. The trial was of an action commenced by writ of summons with a statement of claim for orders that the court pronounce for the force and validity of a will and there be a grant of probate to the plaintiff of a will in solemn form The only significant issue at the trial was that of the testator's testamentary capacity.
Following case management directions in that regard, the trial was conducted on an undefended basis. At the end of the trial I gave judgment for the plaintiff and made the orders it sought.
The following are my reasons for that judgment.
I first describe the background before describing the proceedings and the evidence in the trial. I then turn to the issues in the trial and the applicable law, before applying that law. The last section of these reasons is my conclusion.

Background

As I have indicated, the trial was undefended. Although appearances were filed for both defendants, neither was represented at the trial, as provided for in the case management orders of Registrar C Boyle made 19 August 2010.
What follows is drawn from the evidence before me that counsel for the plaintiff referred me to.
Aubrey Walter Mason (the deceased) was born on 21 June 1910. He died on 30 March 2007. His death certificate shows he was a business owner and he was unmarried. The cause of death was shown as 'Pneumonia (2 days), Stroke (2 months)' and '(Contributing Cause) Vascular dementia (1 year)'.
By certificate dated 8 May 1992 under Public Trustee Act 1941 (WA) as then in force, s 35 (the s 35 certificate of 8 May 1992), the Deputy Public Trustee stated that the deceased was 'an infirm person for the purposes of the Public Trustee Act 1941', having been 'satisfied by production to [him] of certificates in the form in the Third Schedule to the Public Trustee Act 1941' by two named legally qualified medical practitioners that the deceased was 'incapable of managing his affairs'.
At the trial I was provided with a copy of what I was told by counsel for the plaintiff were the certificates in the form in the third schedule to the Public Trustee Act so referred to (the Third Schedule certificates). The Third Schedule certificates were marked for identification. I consider that, having regard to the identifying detail for the certificates in the s 35 certificate of 8 May 1992, and the form of the Third Schedule certificates, I can readily infer that the Third Schedule certificates are the ones so referred to. At the conclusion of the trial, counsel filed an affidavit formally putting those certificates into evidence as an exhibit.
The Third Schedule certificates are by two persons identifying themselves as legally qualified medical practitioners who independently examined the deceased and state their opinion that he was 'by reason of senility (or disease, or illness, or physical infirmity, or mental infirmity) incapable of managing his affairs' upon the grounds each such person describes, under two headings, '[f]acts observed by myself' and '[o]ther facts (if any) communicated to me by others'. One of the Third Schedule certificates was signed by a medical practitioner (the first person) on 16 April 1992. The other Third Schedule certificate was signed by the second medical practitioner (the second person) on 29 April 1992.
Under the first heading, '[f]acts observed by myself', the first person says:
He has considerable mental infirmity related to longstanding anxiety neurosis and personality problems. He is physically infirm due to osteoarthritis with chronic faecal and urinary incontinence which exacerbate his neuroses and create emotional dependency.
Under that first heading, the second person says:
Has chronic anxiety and longstanding personality problems. At times appears mildly confused. Also physically infirm due to age, osteoarthritis. Also chronic problems with urinary and faecal incontinence.
Under the second heading, '[o]ther facts (if any) communicated to me by others', the first person says:
Previously supported for many years by the community psychiatry service.
Under that second heading, the second person says:
Has been under the care of RPH extended care dept and also psychiatric services.
The effect of the s 35 certificate of 8 May 1992 under Public Trustee Act s 36C(1) was that the plaintiff was to undertake 'the care and management of the estates' of the deceased.
On 6 May 1994 the deceased executed a will (the 1994 will) in the presence of Shayne Douglas Hills and Richard Edgar Sievel at the deceased's residence, in the Homes of Peace, Walter Road in Inglewood. Mr Hills was then employed in the office of the plaintiff, and was the responsible trust officer for the deceased. Mr Hills had taken instructions for the 1994 will from the deceased on 15 April 1994. Mr Sievel was then a clerk at the office of the plaintiff.
By the date of the 1994 will Public Trustee Act s 35 and s 36C had been repealed by Guardianship and Administration Act 1990 (WA) s 123 (in force 20 October 1992). However, by the latter Act, sch 5, cl 1(1), the effect of Public Trustee Act s 36C in conferring functions on the plaintiff in relation to infirm persons of whose estates the plaintiff had had care and management under that provision continued. This was subject to cl 1(4) of sch 5, providing for the cessation of the functions of the plaintiff so continued if an administrative order had been made in respect of the person concerned. There is no evidence of any such order having been made in respect of the deceased.
The 1994 will revokes all previous wills and testamentary writings. There is no evidence of any other documents executed before or after the 1994 will, except for a will dated 7 November 1986 (the 1986 will). The 1986 will was the subject of an application for probate made by the second defendant in uncontested proceedings in P2244 of 2008.
The 1986 will, after revoking all former wills and codicils and appointing the second defendant as the executor in the circumstances that occurred, gives all of the deceased's property to the deceased's de facto wife Doris Eliza James if she should survive him for 30 days. If she should not, the 1986 will gives all of the deceased's property to the second defendant.
The 1994 will appoints the plaintiff as the executor and bequeaths $2,000 each to Ms James and to the deceased's cousin, Ethel Sutton. Subject to the payment of debts and testamentary expenses the 1994 will gives the residue of the deceased's estate to his sister Catherine Gill if she should survive him, and if she should predecease him to Ms Sutton. If Ms Sutton should also predecease him, then the residue goes to the first defendant. The plaintiff had made application for probate of the 1994 will in then uncontested proceedings P205 of 2008.
Ms James died on 3 November 1977. Ms Gill died on 28 March 1999. Ms Sutton died on 1 September 2001. Thus, under the 1986 will the second defendant is the sole beneficiary of the deceased's estate. Under the 1994 will the first defendant is that beneficiary.
The present proceedings were commenced by the filing on 5 May 2009 of a writ of summons in respect of the 1994 will. Subsequently a statement of claim was filed.

The proceedings and the evidence in the trial

By case management directions made on 19 August 2010 Registrar C Boyle ordered among other things that the action in these proceedings be heard on an undefended basis. Evidence‑in‑chief was to be by affidavit and evidence in files P205 of 2008 and P2244 of 2008 (the two Probate files) was to be evidence in these proceedings.
At trial I admitted into evidence as exhibits a number of affidavits and other documents from the two Probate files. I also admitted into evidence, as I have indicated, a document marked for identification at the hearing. Submissions were made to me both in writing before the hearing and at the hearing only with respect to that body of evidence. Notwithstanding anything that might be drawn from the case management orders to which I referred, I do not consider I am then in a position to consider any other material, including any other documentary material from the two Probate files. I note in this respect Re Levy (Dec) (No 2) [1957] VR 662, 665 (Sholl J), quoted with approval in Wheatley v Edgar [2003] WASC 118 (EM Heenan J):
[It is not] the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought [21].
At the commencement of the trial before me the plaintiff sought leave on its previous application by chamber summons to correct an error in the reference to the 1994 will in the writ and statement of claim. A letter from the instructing solicitor for counsel for the plaintiff was handed up to me in which the instructing solicitor confirmed service of the summons, supporting affidavit and memorandum of conferral. I was satisfied that the error to be corrected was merely a clerical one, and I granted the leave sought, at the same time stipulating for an affidavit of service of the documents referred to be filed. One was filed.
I turn now to the issues in this action and the applicable principles of law.

The issues and the applicable principles of law

The fundamental matter in the trial was whether the proponent of the 1994 will, the plaintiff, had discharged its burden of proof that the 1994 will was that of the deceased. See Re Estate of Hodges (Dec); Shorter v Hodges (1988) 14 NSWLR 698, 704 (Powell J). That burden included showing testamentary capacity. See ThePublic Trustee of Western Australia v The Parish of Saints Apostles Peter and Paul [2009] WASC 75 [33] ‑ [39] (Simmonds J) (reasons for judgment on an undefended trial of an action for probate of a will in solemn form). The issue of testamentary capacity was in fact the only significant issue in the trial, as I have indicated.
I note that, while the trial was undefended, there was no deed of compromise or other evidence of agreement between the parties. However, even if there had been such a deed or other evidence a court must still be satisfied the will was that of the testator: Smurthwaite v Stratford [2007] WASC 68 [5] (Jenkins J).
I recently set out what is entailed in showing an instrument to be the will of a testator in a (defended) case where the principal issue was that of testamentary capacity. In Brown v Wade [2010] WASC 367 [84] ‑ [85] (Simmonds J) I said this:
To be admitted to probate as the last will of an alleged testator, an instrument must be shown to be the will of the alleged testator. This entails the party propounding the instrument as the alleged testator's will establishing that the alleged testator had capacity at the relevant time to make a will, that the alleged testator had the intention by the instrument to make a will, and that the alleged testator knew and approved of the contents of the instrument. See Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2^nd ed) (1989) [301]; Bailey v Bailey [1924] VLR 294; (1924) 34 CLR 558, 570 (Isaacs J); Le Cras v Perpetual Trustee Co Ltd; sub nom Re Resch's Will Trusts [1969] 1 AC 514; [1967] 3 All ER 915; [1968] 3 WLR 1153, 547 (PC NSW); and Fisher v Kay [2010] WASCA 160.
Presumptions that there was such capacity, such intention and such knowledge and approval, arise from due execution of the instrument as a will: Fisher [85] (Owen JA, Buss and Murphy JJA agreeing) and authorities there cited. There is a presumption of due execution if a will, regular on its face, bears the signature of a testator and two witnesses: Fisher [83].
As to the time at which testamentary capacity needs to be established (the relevant time), see Brown [99], referring to Roebuck v Smoje [2000] WASC 312 (Hasluck J):
As to the date as at which testamentary capacity must have existed it is established that if the testator had capacity at the time he gave instructions for his will to the solicitor, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see Hardingham, Neave & Ford (2^nd ed) [308]; and Roebuck [86].
I have evidence in the form of the 1994 will (exhibit 7) and in the affidavit of Mr Hills sworn 23 July 2008 (exhibit 1) that the 1994 will was regular on its face and duly executed. Accordingly the presumptions referred to would arise.
However, Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475 [52] (EM Heenan J; Anderson, Steytler, Miller & McLure JJ agreeing), referring to Symes v Green (1859) 1 Sw & Tr 401, 402; (1859) 164 ER 785 among other authorities, says this:
A will of a deceased person will only be admitted to probate, or be the subject of a grant of letters of administration with the will annexed, if it is proved that at the time of its execution the testator had testamentary capacity. This issue is always one of fact: Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671; Earl of Longford v Purdon (1877) 1 LR Ir 75 at 79 and Timbury v Coffee (1941) 66 CLR 277 at 280. The question for the tribunal of fact is whether the testator was of sound disposing mind and understanding when he made his will: 'That is the question which the wisdom of ages has framed, and, which as often as the question arises in courts of justice, and is put into form, in those words it is put into form' - Timbury v Coffee (supra). The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that were then within the objects of his bounty - Frere v Peacocke (1846) 1 Rob Eccl 442 at 452 - 454; 163 ER 1095 at 1099. In addressing these issues in Timbury v Coffee (supra) and a finding of the jury that the last will of the testator should not be upheld because of the effect of his insane delusions interspersed with drinking bouts, which resulted in unreasoning prejudice towards his wife, Dixon J said, at 283, quoting other authority:
'"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with; and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (Per Hood J, In the Will of Wilson (1897) 23 VLR 197 at 199). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counter‑balance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (Per Cresswell J; Symes v Green (1859) 1 Sw & Tr 401 at 402; 164 ER 785 - Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. "In the end the tribunal - the court or the jury - must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Sutton v Sadler (1857) 3 CB (NS) 87 at 97; 140 ER 671 at 675)" (per Rich J in Landers v Landers (1914) 19 CLR 222 at 235-6.'
As to the matter of sound mind, I note the following from The Public Trustee v Stretch [2002] WASC 147 (Murray J):
It can be seen that, firstly, what is being spoken of is a capacity rather than the exercise of it. The question is whether the testator had the capacity of sound judgment rather than that he or she in fact made the judgment about the disposition of the estate by will soundly and for reasons which might appear to the observer to be good [8].
In Full Board EM Heenan J said this, referring to the Guardianship and Administration Act:
No will of a deceased person who was under administration at the time when the will was made and which is later propounded for probate can escape the need for proof of testamentary capacity to be established according to these principles. If such capacity is not established, then the testament will not be admitted to proof [54].
The administration to which the affairs of the person was subject in Full Board was not that under Public Trustee Act s 36C. However, I consider that the principles his Honour referred to apply in that context also.
In Full Board [52] and [54] I must be satisfied on the evidence as a whole that the deceased, who had been made subject to a certificate of infirmity under Public Trustee Act s 35 and of whose estate the Public Trustee continued to have care and management under Public Trustee Act s 36C, was of sound mind at the relevant time. The relevant time appears to me to have been the date on which the deceased gave Mr Hills the instructions for the 1994 will. On the evidence of Mr Hills in his affidavit of 23 July 2008 (exhibit 1), that date being 15 April 1994.
As to attaining such satisfaction where 'there are circumstances in evidence which counter‑balance that presumption [of testamentary capacity]' (Symes (402)), the position is described in Worth v Clasohm (1952) 86 CLR 439 (Dixon CJ, Webb & Kitto JJ) as follows:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution (453).

As to what it means for a testator to be of 'sound mind' for testamentary capacity purposes where the testator was at the relevant time suffering from an illness affecting mental capacity, I take the law to be as stated in Martin v Fletcher [2003] WASC 59 (Commissioner Johnson QC), quoted in Public Trustee v Parish of Saints Apostles Peter and Paul [33] as follows:
A very useful review of the principles in relation to the way the burden of proof may be discharged in a case such as this one is in my view to be found in Martin v Fletcher [2003] WASC 59 [6] - [10] (Commissioner Johnson QC, as she then was), referring to the leading authorities of Bailey v Bailey (1924) 34 CLR 558, Worth v Clasohm (1952) 86 CLR 439, In the Estate of Griffith (1995) 217 ALR 284 (CA NSW), Banks v Goodfellow (1870) LR 5 QB 549 and Shaw v Crichton (Unreported, NSWSC, Library No 113127/92, 22 July 1994) (Bryson J) as follows:
'The standard of proof required of the proponent of a will is the ordinary civil standard of proof: see Bailey … per Isaacs JA at 570 ‑ 571. A residual doubt is not enough to defeat the plaintiff's claim for probate unless it is thought by the Court to be substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: see Worth …at 453.
A duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see Griffith … per Gleeson CJ, Kirby P and Handley JA at 5 [(1995) 217 ALR 284 at 295]. In this case, there is evidence that the deceased was suffering from dementia, a medical condition affecting mental capacity. However, to displace a prima facie case of capacity and due execution, mere proof of serious illness is not sufficient. There must be clear evidence that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property: see Bailey …, above, at 571 - 572.'
Finally, I note as to evidence of testamentary capacity in conclusory or opinion form the following, from Public Trustee v Parish of Saints Apostles Peter and Paul:
In evaluating the evidence of the medical practitioners, I note that the authorities indicate that the opinion of witnesses stated as an assessment of testamentary capacity is usually given little weight in deciding the issue: Kinleside v Harrison (1818) 2 Phill Ecc 449, 457 - 459; 161 ER 1196; referred to in Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996) (Anderson J). What is of significance to the court is the basis for any such opinion [66].
I turn now to apply those principles of law.

The application of the principles of law

I consider that the doubt as to the existence of testamentary capacity arose from the circumstances of the s 35 certificate of 8 May 1992, referring to the Third Schedule certificates; the contents of those certificates; and the continuing care and management of the deceased's affairs on 15 April 1994. That doubt is in the form of a reason to believe the deceased was suffering from a serious illness which so affected his mental capacities as to counter‑balance the presumption of testamentary capacity. See Martin v Fletcher [7].
It is not necessary for me to decide whether simply being subject to such care and management would be sufficient to raise that doubt, without reference to the basis for such care and management. However, it is clear from Full Board [52], [54] that being subject to such care and management is not determinative of the issue of testamentary capacity.
On that basis, I have undertaken a vigilant examination of the whole of the evidence placed before me, to determine whether or not the doubt that I consider has arisen is substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution. See Worth (453).
For that purpose, as counsel for the plaintiff put to me, I have considered each of the three elements of soundness of mind referred to in Full Board [52] which I repeat here, adding numbering of my own in parentheses for convenience:
(1) the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, (2) knowledge of what his property was, and (3) who those persons were that were then within the objects of his bounty.
See also Banks v Goodfellow (1870) LR5QB 549, 565, quoted in Hardingham IJ, Neave MA & Ford HAJ, Wills and Intestacy in Australia and New Zealand 2nd ed (1989) [306].
I note in passing that there is a further aspect to element (3) above, as follows, from Banks v Goodfellow that
with a view to the latter object [identified here as (3) from Full Board], that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made (565).
I note the evidence I have referred to as giving rise to the doubt I described does not, in my view, go to that aspect. Nor is there any other evidence suggesting that aspect might be engaged. I leave it aside.
As to (1), the knowledge the testator must possess, I note the evidence of Mr Hills in his affidavit of 23 July 2008 (exhibit 1) [3] and the annexure SDH 1 being the Will Instruction form. That evidence indicates that Mr Hills observed the testator stating to him the testator wished to 'change [his] current will held by Peter Ryder'. I consider this to have been a reference to the 1986 will, of which the second defendant was the executor. I consider that this is strong evidence that the deceased knew what he was about in the sense explained in Full Board [52].
As to (2), the deceased's knowledge of what his property was, I note the evidence of Mr Hills in exhibit 1 [4], that the '[t]he information [the deceased] gave on the Will Instruction form as to his assets and relatives tallied with the details held on the Public Trust Office file'. I consider this to be strong evidence that the deceased knew what his property was.
As to (3), who the persons were who were within the objects of his bounty, I note the evidence of Mr Hills in exhibit 1 [4] (above) read with annexure SDH 1, the Will Instruction form, which identifies all the persons who might benefit from his will, including Ms Gill, Ms Sutton and Ms James, and correctly identifies the relationships of the three persons named to him. I also note that Ms James is also so identified in the 1986 will. I evaluate this evidence in the light of my concern to identify a capacity for sound judgment, rather than whether or not the deceased made his dispositions soundly: Public Trustee v Stretch [8]. I consider this body of evidence to be strong evidence that the deceased knew who those persons were who were within the objects of his bounty.
I further note the evidence of James Andrew Beel in an affidavit sworn 22 November 2007 (exhibit 3). Dr Beel deposes he is a medical practitioner who attended the deceased over two periods, 21 December 1992 to 25 May 1993, and 23 March 1999 to 18 November 1999. He was in contact with the deceased monthly over that period. Dr Beel deposes he believes Mr Mason 'was capable of making [the 1994 will]' and he also believes 'at the time he signed the will, [the deceased] would have understood the nature of a will and would have had the capacity to comprehend and appreciate the claims of those for whom he ought to provide'. However, I consider this evidence, given its form, should receive little weight: Public Trustee v Parish of Saints Apostles Peter and Paul [66]. Of significance for my purposes, however, is Dr Beel's further evidence that the deceased 'had an obsessive personality and it is possible that he was suffering a very mild dementia, but I have no evidence in my records that this was so'.
On the entirety of the evidence before me with particular reference to the evidence with respect to Full Board elements (1), (2) and (3), I conclude that the 1994 will was the will of a testator who possessed sound mind, memory and understanding at the time of its execution.

Conclusion

It is for those reasons that I gave judgment for the plaintiff and made orders pronouncing for the validity of the 1994 will in solemn form.