Robertson v Barker - [2021] NSWSC 1682

Supreme Court

New South Wales

Medium Neutral Citation: Robertson v Barker [2021] NSWSC 1682
Hearing dates: 23-25 and 30 November 2021 and 1 December 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders that:
(a)   Probate in solemn form of the Will made on 29 October 2016 of Mabel Claire Hogan be granted to the Plaintiff.
(b)   The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
(c)   The Cross-Claim filed on 5 May 2020 be dismissed.
(d)   If the parties are unable to agree on how costs should be borne, the matter is adjourned for directions to 2:00 p.m. on 10 February 2022 or such other date as arranged by the parties and Court.
(e) The Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.

Catchwords:
SUCCESSION — Contested probate – Elderly will-maker - Validity of Wills - The Plaintiff is the executor named in the duly executed Will of the deceased made on 29 October 2016 – Last Will of the deceased in time – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances alleged by the Defendants at the time the deceased made the 2016 Will - Whether onus on the Plaintiff, as propounder of the 2016 Will, has been discharged - Agreement of the parties that if the 2016 Will is not the subject of a grant, Probate in solemn form of a Will made by the deceased on 3 May 2013, the penultimate Will, should be made.

Legislation Cited:
Births Deaths and Marriages Registration Act 1995 (NSW)
Evidence Act 1995 (NSW)
Powers of Attorney Act 2003 (NSW)
Succession Act 2006 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Attwell v Morgan [2019] WASC 182
Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 2 Moo PC 480
Beatson v Perry (1906) 6 SR (NSW) 167
Boughton v Knight (1873) LR 3 P&D 64
Boyce v Bunce [2015] NSWSC 1924
Bridges v Pelly [2001] NSWCA 31
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brown v McEnroe (1890) 11 NSWR Eq 134
Brown v Wade [2010] WASC 367
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Camden v McKenzie [2007] QCA 136
Carr v Homersham [2018] NSWCA 65
Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82
Choy Po Chun v Au Wing Lun [2018] HKCA 403
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Croft v Sanders [2019] NSWCA 303
D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333
Day v Couch [2000] NSWSC 230
Den v Vancleve (1819) 2 Southard 589
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218
Evans v Braddock [2015] NSWSC 249
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98
Frizzo v Frizzo [2011] QCA 308
Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Harrison v Rowan (1820) 3 Washington 585
Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
In re R (dec’d) [1950] 2 All ER 117
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181
Kerr v Badran; Estate of Badran [2004] NSWSC 735
King v Hudson [2009] NSWSC 1013
Kogan v Martin [2019] EWCA Civ 1645
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Kyros v Stavrakis [2009] NSWSC 163
Lewis v Lewis [2021] NSWCA 168
Longman v R (1989) 168 CLR 79; [1989] HCA 60
Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3
Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch)
Manning v Hughes; Estate of Ludewig [2010] NSWSC 226
McNamara v Nagel [2017] NSWSC 91
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Musa v Alzreaiawi [2021] NSWCA 12
Nicholson v Knaggs [2009] VSC 64
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Norris v Tuppen [1999] VSC 228
Parton v Johnson (1868) LR 1 P and D 549
Payne v Parker [1976] 1 NSWLR 191
Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep))
Perrins v Holland [2009] EWHC 1945
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Re Hodgson (1885) 31 Ch D 177
Revie v Druitt [2005] NSWSC 902
Rowe v Sudholz [2019] QSC 306
Ruskey-Fleming v Cook [2013] QSC 142
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964
Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449
Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280
Smith v Tebbitt (No.2) (1867) L.R. 1 P&D 398
Starr v Miller; Starr v Miller [2021] NSWSC 426
State of New South Wales v Hunt [2014] NSWCA 47
Stevens v Vancleve (1822) 4 Washington 267
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
Tu v Tu; Estate of Tu [2008] NSWSC 458
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123
Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064
Wesley v Wesley (1998) 71 SASR 1
Wintle v Nye [1959] 1 WLR 284
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:
G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co)
J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy (2nd ed, 1989, Law Book Co)
Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3
John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell)
P McClellan “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655

Category: Principal judgment
Parties: Janette Ruth Robertson (Plaintiff)
Penelope Jane Barker (first Defendant)
Andrew John Barker (second Defendant)
Representation:
Counsel:
Mr C Birtles (Plaintiff)
Mr G Waugh SC with Mr H Morrison (Defendants)
Solicitors:
Turnbull Hill Lawyers (Plaintiff)
Crowther Sim Lawyers (Defendants)

File Number(s): 2019/371048
Publication restriction: Nil

Judgment

Introduction

These reasons follow a five day trial of a Probate action about the validity of the last Will of Mabel (also known as Margaret) Claire Hogan (the deceased), which Will she executed on 29 October 2016. The original of that Will is Ex P1 in the proceedings and is propounded by the Plaintiff, Janette Ruth Robertson. It is not a case about the validity of the deceased’s penultimate Will, which she executed on 3 May 2013. The original of that Will is Ex D1 and it is propounded as the last valid Will of the deceased by the Defendants, Penelope Jane Barker and Andrew John Barker. The Plaintiff does not dispute that, when made, the 2013 Will was a valid and effective Will, but she asserts that it was revoked by the later Will. (The deceased also made a Will, which she executed on 13 August 2010, but neither party propounded that Will and the original has not been produced to the Court.) I shall refer to each of the Wills by the year of its execution without prejudgment as to its validity.
The deceased died on 25 June 2019, at 96 years of age, leaving property in New South Wales.
Whilst when appropriate, I shall refer to the parties as “the Plaintiff” or “the Defendants”, I also shall refer to family members, after introduction, by his, or her, first name. I do so without intending to convey undue familiarity or disrespect, and for clarity and convenience. I shall return to the relationships of the parties, other persons, and the deceased, later in these reasons.

The Proceedings

The Defendants and their mother, Valmai Barker (to whom I shall refer later), filed a general caveat on 13 August 2019 and a Withdrawal of Caveat on 18 October 2019. A letter dated 25 October 2019, enclosing the Withdrawal of Caveat, noted that it was done “without admission and for the purpose of avoiding the ongoing costs of this matter”: Ex TBNM1/226.
Then, on 21 February 2020, the Defendants, alone, filed another general caveat. A general caveat is one filed under Supreme Court Rules 1970 (NSW) Part 78 rule 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167.
The Plaintiff, who is a niece of the deceased, commenced these proceedings by Statement of Claim filed on 22 April 2020. She sought Probate in solemn form of the 2016 Will and consequential orders.
The Defendants, who are described as “step-grandchildren” of the deceased, filed a Defence and a Cross Claim on 5 May 2020. In the Defence, they admitted, relevantly, that the deceased died on 25 June 2019 leaving property in New South Wales; that the deceased signed the 2016 Will; that the Plaintiff is the executor named in the 2016 Will; and that notice of her application was published in the NSW Online Registry on 25 November 2019. They denied, however, that the 2016 Will “is a valid testamentary document” and further asserted that “it is not liable to be admitted to probate”.
In the Cross Claim, the Defendants sought an order that Probate in solemn form of the 2013 Will be granted to Carolyn Joyce Fletcher (now known as Carolyn Joyce Dale), one of the two executors, (with Janette) named in that Will. In the alternative, they sought an order that Letters of Administration, with the 2013 Will annexed in solemn form, be granted “to such other person as the Court sees fit”. No such person was nominated.
The Defendants launched their attack on the 2016 Will in the Cross-Claim, rather than in the Defence, asserting that the deceased lacked testamentary capacity when she made the 2016 Will; that the 2016 Will “was executed in suspicious circumstances”; and that the deceased did not know and approve of the contents of the 2016 Will.
In summary, the particulars of testamentary incapacity were that the deceased was then 93 years old; that she was frail; that she repeated herself in conversations and forgot the subject of the conversations as they took place; that she did not appreciate the nature and extent of her assets; and that she was not able to, and did not, in fact, appreciate the persons who had a claim on her testamentary bounty.
On suspicious circumstances, the Defendants relied upon the second limb of the rule in Barry v Butlin (1838) 2 Moo PC 480. They argued that the Plaintiff had provided the instructions to the solicitor, Mr Wayne Hodgins, who had drafted the 2016 Will; that Mr Hodgins had no direct contact with the deceased prior to preparing the 2016 Will; that the Plaintiff and Stuart Robertson were in the vicinity, and in the company, of the deceased before, partially during, and after, the 2016 Will was executed; that Mr Hodgins came to be retained by reason of his association with the Plaintiff and Stuart Robertson; and that prior to the making of the 2016 Will, Mr Hodgins had not performed any legal work for the deceased. They pointed to what was said to be the abrupt, unnatural, and dramatic, change from the 2013 and 2010 Wills, in relation to the devolution of the deceased’s residuary estate.
The particulars of lack of the knowledge and approval repeated the suspicious circumstances; that the deceased did not articulate any reasons for reducing the entitlement of the Defendants, or of Carolyn; and that the deceased had poor hearing.
In her Defence to the Cross-Claim, the Plaintiff responded to the allegations and set out a summary of material facts surrounding the making, and execution, of the 2016 Will. It will be necessary to refer to the evidence on this topic later in these reasons.
Whilst there was no dispute that the circumstances of the case were such as to require the Plaintiff, as propounder, to prove, affirmatively, that the 2016 Will was executed by the deceased with the requisite testamentary capacity and with knowledge and approval, the Plaintiff contended that she had sufficiently discharged the evidential burden of proof, and had established, affirmatively, the validity of the 2016 Will.
As stated, the parties agreed that if the 2016 Will is not the last valid Will of the deceased, then there should be a grant in solemn form of Probate (or letters of administration) of the 2013 Will. Yet, the Plaintiff did not seek to propound the 2013 Will, in the alternative, even though she is one of the two executors named in it. At the commencement of the proceedings, the Court raised this matter, and counsel for the Plaintiff stated that “I expect that she would wish to take the grant”: Tcpt, 23 November 2011, p 01(43-44). Senior counsel for the Defendants thought that Carolyn would also seek a grant: Tcpt, 23 November 2021, p 02(04-06).
Subsequently, during the hearing, the parties agreed that if there were to be a grant of Probate in solemn form of the 2013 Will, the grant should be made to both Janette and Carolyn, as the executors named in that Will. For reasons that follow, this will not be necessary.
Notice of the intended application for probate of the 2013 Will was published by the Defendants on the NSW Online Registry website on 25 November 2021, that is to say, during the hearing. However, the notice referred to a grant being made to Carolyn only: Ex D4.
It can be seen, from the above, that the legal representatives and the Court, remembered, and proceeded upon the basis of what had been written by Sir J P Wilde in Parton v Johnson (1868) LR 1 P and D 549 at 551:

"When several wills are propounded it would be extremely inconvenient to try the validity of the earlier wills before the validity of the will latest in date is decided. The validity of the latest will should be determined in the first instance".

Summary

The central questions that needed to be determined, and my conclusions, are:

Did the deceased have testamentary capacity when she made the 2016 Will? I conclude that she did.

Did the deceased know and approve the contents of the 2016 Will? I conclude that she did.

Did the conduct of the Plaintiff give rise to the application of the doctrine of suspicious circumstances and, if so, does it displace any presumption of knowledge and approval? I conclude that her conduct did not give rise to the application of that doctrine.

The Hearing

The hearing commenced on 23 November 2021, continued until 25 November 2021, and then resumed on 30 November 2021 and continued until 1 December 2021. Mr C P Birtles of counsel appeared for the Plaintiff whilst Mr G Waugh SC, with Mr H Morrison of counsel, appeared for the Defendants. It was listed for 6 days and was completed within that time.
Prior to the hearing, the parties had discussed, and agreed upon, the order of witnesses. This necessitated some flexibility as witnesses were called to suit his, or her, convenience. Some of the witnesses were unable to attend in person and the oral evidence of these witnesses was given audio-visually, using the Microsoft Teams platform. Whilst audio-visual link technology is imperfect, this part of the hearing, also, was able to be achieved in an orderly manner and with the co-operation of the legal representatives. Since the outbreak of COVID-19, almost 2 years ago, the Court has heard many cases using this technology. There was no suggestion of any prejudice to either party or compromise to the quality of justice.
On the fourth day of the hearing, counsel provided an agreed list of error corrections to the transcript that have been included in it as error corrections.
The co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated, and that the matter proceeded without interruption, is to be commended. The Court was greatly assisted by that approach, and also by the written and oral submissions made by counsel at the hearing.

Some Factual Background

In order to set the dispute in its proper context, it is first necessary to set out an overview of the background which led to the dispute. As with all probate disputes, a proper understanding of the events is critical.
Some of the information referred to below, is taken from a family tree (Ex TBNM1/257) which I do not understand to be controversial. If any facts set out hereunder are controversial, I am satisfied that they have been established by the evidence relied upon in the proceedings.
The deceased was born in September 1922 and was 94 years old when she executed the 2016 Will; she was about 91 years old when she executed the 2013 Will; and about 88 years old when she made the 2010 Will. Clearly, she was an elderly will-maker at the time she executed each of her Wills, although there was no suggestion that she did not have testamentary capacity at the time she made the 2013 Will or when she made the 2010 Will.
Little evidence was given, by either of the parties, about the deceased’s life or about her character. For example, the Court knows nothing about her education, employment history, or her personality traits. There was, however, some information provided about her.
The deceased was married once only. Her husband, John Kennedy Hogan (also known as Ken), died on 28 August 2009. They were married in September 1955. At the date of his death, they had been married for about 54 years. There were no children of their marriage. However, Ken had two children from a previous marriage, being Valmai and Julie McPhee (who predeceased the deceased). Lachlan Xavier McPhee is a child of Julie.
After Ken was admitted into care in 2007, the deceased continued to live in their matrimonial home, in Eleebana, a suburb of the City of Lake Macquarie, in New South Wales, about 18 kilometres from Newcastle's central business district, on her own.
Ken made a Will in which the deceased was the sole executor and universal legatee. This Court granted Probate of his Will to the deceased on 23 August 2010. Following the grant of Probate, title to the Eleebana property was transmitted into the sole name of the deceased.
The deceased had three siblings being Frederick Powell, Joan Powell, and Robert Baden Powell. None of them is alive. Only the date of death of Robert, being 21 September 2017, was the subject of evidence. It appears that he, alone, had children, being Janette and Carolyn.
As stated, Penelope and Andrew are the two children of Valmai. Jago Ray Barker is a child of Andrew; Mia Rose Robertson is a child of Penelope.
The deceased appointed Janette as her enduring Attorney and guardian under a Power of Attorney and Appointment of Enduring Guardian, each dated 21 March 2006 (Ex TBNM1/2-8). Both documents were registered with the office of the Registrar General of NSW on 27 March 2006 and remained valid until they were said to have been “updated” in February 2017.
Although the Power of Attorney is referred to in some transactional documents, there is no evidence that it was actually used by the Plaintiff, as Attorney, to enter into any relevant transactions on the part of the deceased. (It will be necessary to return to the contents of the Power of Attorney later in these reasons.)

The Plaintiff gave evidence that the deceased “maintained responsibility for cleaning the home, arranging maintenance with tradespersons and tending the gardens. She arranged, and paid, for someone to regularly mow her lawn… [she] attended to her own laundry and prepared her own meals”. Any suggestion that the deceased lived in “squalor” was rejected by a number of witnesses.
There are numerous copy bills and payment receipts from 2014 and 2015, copy Commonwealth Bank of Australia term deposit statements for the period August 2013 to July 2016, and copy Commonwealth Bank account statements for the period 2 May 2014 and 1 January 2015, of the deceased, in the documentary evidence, which were said to demonstrate her ability to look after her finances in these periods: Ex TBNM1/41-173.
On 5 September 2015, Janette attended the Eleebana property. It was the deceased’s birthday and arrangements had been made by Janette and Carolyn to take her to lunch. However, a short time after her arrival there, the deceased asked Janette to take a look at the top of her right leg. Thereafter, the deceased was taken to John Hunter Hospital.
(There is a dispute about whether Janette took the deceased to the Hospital alone or whether Carolyn went with her. Nothing really turns on the dispute, but it was the subject of cross-examination and was referred to in submissions. I shall return to the dispute of fact later in these reasons.)
Following her arrival, the deceased was immediately admitted to the Infectious Disease Ward of John Hunter Hospital with a diagnosis of an open wound and a necrotic patch located on her upper inner right thigh. She was also noted to have a second smaller closed necrotic patch mid right thigh. She remained in John Hunter Hospital until 29 September 2015 (Ex TBM1/1) when she was transferred to Belmont Hospital, where she remained until 26 October 2015 (Ex TBM1/356).
On 16 September 2015, Janette made an application for the deceased to be admitted to Maroba Nursing Home (Maroba), an aged care facility, in Waratah, a suburb of Newcastle. The application was in writing and is likely to have been signed by Janette. In the “Relationship” section after signature, a tick was placed under “Power of Attorney”, and next to “Other”, the words “Enduring Guardian” appear. In an earlier section of the Application, Janette was identified as the deceased’s niece: Ex D2.
On 26 October 2015, following her treatment at Belmont Hospital, the deceased was admitted to Maroba, at an initial entry cost of $269,000. It was the nursing home in which her brother, Robert, had been a resident since January 2013. Although initially placed in a shared room, when a single room became available in February 2016, the deceased moved into that room, at an additional cost of $130,000.
In about November 2015, Janette obtained a written Valuation Report for the Eleebana property, being one for “Market Valuation for Proposed Sale Purposes”. Subject to certain qualifications and assumptions referred to, the valuation stated that “the range of value would be between $1,500,000 to $1,800,000…”.
Janette gave evidence that the deceased had requested her to sell the Eleebana property, telling her that she did not like the idea of it being rented. It was listed for auction in either late November, or early December, 2015, but it did not sell, having been passed in prior to reaching the reserve price. A sales campaign followed in the months thereafter, and it was listed for sale in September 2016. Ultimately, it was sold for $1,435,000, with the sale being completed on 18 January 2017.
Janette informed some family members of the fact that the deceased wished to sell the Eleebana property. Valmai and Penelope expressed disappointment that it was being listed for sale. There is no evidence that either told the Plaintiff that she did not think that the deceased had capacity to enter into, or understand, the sale transaction. Valmai simply asked “Why is my Dad’s house being sold. Why can’t Margaret just rent it out for a while instead of selling it?”
Following the initial auction, when the Eleebana property was passed in, the Plaintiff and her husband, Andrew, with Carolyn and Rod, all of whom seemed to have attended the auction, went out for coffee together. The only evidence of the discussion whilst at coffee, given by Carolyn, was “our proposed Christmas lunch plans”.
It would appear that Rankin Ellison lawyers were originally retained to act on the sale. However, on 19 January 2016, Wilson & Co Lawyers wrote to that firm with an authority to transfer the sale file to their firm. The deceased signed a general authority dated 17 February 2016 to release the file to the Plaintiff: Ex D3.
Later in 2016, upon instructions from the Plaintiff, Mr Wayne John Hodgins came to act for the deceased, as vendor, on the sale. However, it was the deceased, herself, who signed the Contracts for Sale of the Eleebana property on 25 November 2016 and the Transfer: Ex TBNM1/186-219 and Ex D2/39-70.
On the same date, the deceased also signed a Permanent Resident Agreement with Maroba. The deceased’s signature on this document was witnessed by Janette: Ex TBNM1/175-185.
Mr Hodgins sent a letter dated 18 January 2017 to the deceased “c/- Janette Robertson” confirming the sale of the Eleebana property, attaching a Settlement Statement and an invoice for acting on the sale (noting that his invoice was paid out of the proceeds of sale): Ex D2/73-76. Janette deposited all of the net proceeds of sale in a bank account. It was not suggested that Janette had misused her position, vis-à-vis the deceased, to arrange the sale of the Eleebana property or that she had, in any way, misapplied the proceeds of sale: Tcpt, 24 November 2021, p 193(15-29).
I am satisfied that the sale of the Eleebana property was entered into as a result of the instructions given to Janette, by the deceased, and that the deceased signified her approval of the sale by signing the Contract for Sale and the Transfer when that became necessary.
On 25 February 2017, the deceased appointed Janette, and if she vacated the office, her son, Stuart, under an Enduring Power of Attorney, prepared by Mr Hodgins. On the same day, the deceased appointed Janette, and if she vacated the office, her son, Stuart, under an Appointment of Enduring Guardian(s), also prepared by Mr Hodgins. The deceased, naturally, signed each document: Ex TBNM1/22-30. The Plaintiff and Stuart both accepted the appointment on the same day.
Incorporated in the instrument was a certificate, given under s 19 of the Powers of Attorney Act 2003 (NSW), by Mr Hodgins, as a “prescribed person", certifying, inter alia, that he had explained the effect of the Power of Attorney to the deceased and that she appeared to understand its effect. He also certified, in relation to the Appointment of Enduring Guardian(s), that “the appointor … appeared to understand the effect of this instrument and voluntarily executed the instrument in my presence”. (Section 19 sets out formal requirements for the making of an enduring power of attorney.)
Mr Hodgins was not asked any pertinent questions about either Certificate under s 19 in cross-examination, despite its relative closeness in time to the date on which the 2016 Will was executed. It was not suggested that he had made a false certification under s 19.
The deceased remained a resident at Maroba until her death in June 2019.

The Wills made by the deceased

It is necessary, next, to describe the three testamentary instruments made by the deceased, which were the subject of evidence.
There was no dispute that each of the Wills to which reference has been made satisfied the statutory requirements of s 6 of the Succession Act2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased; (b) the signature was made by the deceased, in the presence of two, or more, witnesses present at the same time; and (c) two of those witnesses attested and signed the Will in the presence of the deceased.
Each Will had an attestation clause. It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80]. In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71].
As will be read, each Will is explicitly testamentary in character. Each appoints an executor, or executors, contains incontrovertibly clear specific gifts, and disposes of the entirety of the estate of the deceased.
The last Will in time made by the deceased is the 2016 Will. Relevantly, it provides for:

the revocation of all wills and testamentary dispositions previously made by the deceased (Clause 1);

the appointment of Janette as the sole executrix and trustee of the Will (Clause 2);

a pecuniary legacy to Penelope ($75,000); to Andrew ($75,000); to Leona (Faye) Letts ($10,000); to Pamela Lockhart ($10,000); to Robert Baden Powell ($200,000); to Carolyn Joyce Dale ($200,000); to Andrew Lawrie Robertson ($200,000); to Stuart Andrew Robertson ($100,000); to Lachlan Andrew Robertson ($100,000) (Clause 3); and

the rest and residue of the deceased’s estate, both real and personal of whatsoever nature and wheresoever situate, to pass to Janette, but in the event that she predeceased the deceased, or failed to survive for 30 days, to be shared between Andrew Lawrie Robertson, Stuart Andrew Robertson and Lachlan Andrew Robertson, as shall survive the deceased, and if more than one, as tenants in common in equal shares (Clause 4).

In the events that have happened, Janette is entitled to the whole of the residuary estate under the 2016 Will. However, that estate can only be calculated after the payment of the pecuniary legacies which total $770,000.
(Robert Baden Powell predeceased the deceased. As the disposition of the pecuniary legacy made to him was wholly ineffective, and as there was no named substitute beneficiary, the Will takes effect as if the undisposed part of the property were part of the residuary estate of the deceased: s 31(1) of the Act.)
There is no dispute that the 2016 Will was professionally drawn. The two attesting witnesses to the deceased’s signature were Mr Hodgins, Solicitor, and Alan Denis Creamer, a Law Clerk. Each has filed two affidavits that were read in the proceedings, and each was cross-examined. It was Mr Hodgins who drafted the 2016 Will.
The penultimate Will made by the deceased was the 2013 Will. It provided for:

the revocation of all wills and testamentary dispositions previously made by the deceased (Clause 1);

the appointment of Janette and Carolyn as the joint executors and trustees of the Will (Clause 2);

the payment of all debts, legacies, funeral and testamentary expenses and any death, estate, or succession, duties (Clause 3(a));

a pecuniary legacy to Valmai ($50,000); to Robert ($200,000); to Leona (Faye) Letts ($5,000); to Pamela Lockhart ($5,000) (Clause 3(b));

certain identified chattels to pass to Janette, or to be distributed to other members of the family, as she determined (Clause 4); and

the rest and residue of the estate, including any benefit payable under superannuation or life insurance policies, in equal shares to Janette, to Carolyn, to Penelope and to Andrew, provided each survived by 30 days (Clause 5).

There is no dispute that the 2013 Will was also professionally drawn. The two attesting witnesses to the deceased’s signature are Gregory John Wilson, Solicitor, and Sonia Narelle Bowditch, Secretary. Neither made an affidavit of attesting witness. The Court made reference to this matter, a number of times, during the hearing: Tcpt, 23 November 2021, p 01(27-28), Tcpt, 24 November 2021, p 147(27), Tcpt, 25 November 2021, p 247(07-17), Tcpt, 1 December 2021, p 395(50)-396(02). (In light of the orders to be made, this aspect is no longer relevant.)
The Plaintiff, the Defendants, and Carolyn, were to share the residuary estate, equally, under the 2013 Will. However, that estate can only be calculated after the payment of the pecuniary legacies which total $260,000. Under this Will, even though Robert predeceased the deceased, the pecuniary legacy of $200,000 did not fall into residue, as there are two legatees appointed in substitution, being Janette and Carolyn, named in the Will: Cl 3(b)(ii).
A useful table showing the relevant differences between the 2016 Will and the 2013 Will was provided by counsel for Penelope and Andrew and was not the subject of dispute. I shall not set it out in these reasons but it remains part of the Court papers.
The earliest Will made by the deceased in evidence is the 2010 Will. Since there is no dispute about the validity of the 2013 Will (if the 2016 Will is not a valid Will) the 2010 Will made by the deceased is not really relevant in the proceedings, other than to demonstrate the deceased’s testamentary intentions at the time the 2010 Will was made and executed. Only a copy of that Will was produced to the Court: Ex TBNM1/9-13.
Relevantly, the 2010 Will provides:

the revocation of all wills and testamentary dispositions previously made by the deceased (Clause 1);

the appointment of Janette and Carolyn as joint executors and trustees of the Will (Clause 2);

the payment of all debts, legacies, funeral and testamentary expenses and any death, estate, or succession, duties (Clause 3(a));

a pecuniary legacy to be given to Lachlan Xavier McPhee ($50,000); to Valmai ($50,000); to Jago Ray Barker ($25,000); to Mia Rose Robertson ($25,000); to Joan Powell ($50,000); to Robert ($50,000); to Marie Lilian Powell ($50,000);

certain identified items to pass to Janette (Clause 4); and

the rest and residue of the estate to be given to the Plaintiff, to the Defendants, and to Carolyn in equal shares (Clause 5).

It can be seen from the above, that the contents of each of the Wills made by the deceased between 2010 and 2016 were similar, although, of course, they were not identical, particularly as to the devolution of the deceased’s residuary estate, the amount of some of the pecuniary legacies, and some of the legatees.
As will be read, the deceased’s explanation for making the change to the clause relating to the disposition of the residuary estate appears to be factually accurate, with the evidence given by the Plaintiff, by each of the Defendants, and by a number of the other witnesses.

The estate of the deceased

According to the Inventory of Property, a copy of which was annexed to Janette's affidavit sworn on 13 December 2019, the deceased's estate, at the date of death, comprised two bank accounts with a combined balance of $1,457,766, and the proceeds of an accommodation bond, with an estimated value of $396,874. The gross value of the estate was estimated to be $1,854,640. There were liabilities being income tax ($4,300), fees due to a firm of accountants ($990) and a reimbursement to the Plaintiff for a payment made on account of funeral expenses ($401), leaving an estate with a net value of $1,848,949.
At the date of hearing, the gross value of the estate was estimated to be $1,883,863: Tcpt, 25 November 2021, p 276(23-29).

The costs of the proceedings

There was no evidence given concerning the costs of the proceedings. However, when asked about costs, Mr Birtles informed the Court, from the Bar table, without objection, that Janette’s costs, calculated, on the indemnity basis, were estimated to be $270,000: Tcpt, 25 November 2021, p 210(03-05). Mr Waugh SC informed the Court, from the Bar table, without objection, that the Defendants’ costs, calculated, on the indemnity basis, were estimated to be $189,000: Tcpt, 25 November 2021, p 210(14-15).
Counsel for Janette, without disagreement, stated from the Bar table that the costs of the proceedings should not be dealt with, whatever the result of the proceedings, and the question of how costs should be borne should not be resolved until submissions on costs were made after these reasons are published: Tcpt, 25 November 2021, p 211(23-30).
Naturally, I shall abide the request and not deal with costs in these reasons. However, I commend to the parties that, if possible, further argument, with the obvious increase in costs, and the consequent delay in administering the estate, should be avoided.

Dramatis Personae

The question of the deceased’s testamentary capacity and her knowledge and approval falls to be assessed as at 29 October 2016, when she made the 2016 Will. Naturally, not all of the evidence is limited to that date. Events surrounding the making of the 2016 Will, in that month, in the 12 months before, and the few months after that date, are of some relevance to an evaluation of the deceased’s capacity. It would be wrong to confine the evaluation narrowly to the events of October 2016.
There is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker’s capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.
This does not mean that there is no wisdom in the view that “the vital evidence is very often not given by medical experts, but is given by experienced lay observers … [and] that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes” (Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Young JA)); or that an experienced solicitor’s evidence is capable of being “valuable evidence of testamentary capacity” because an “experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path”: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).
The following persons played a part as a party, or a witness, or have been referred to, otherwise, in the proceedings. First, I shall identify the witnesses who gave evidence in the Plaintiff’s case. Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined.
The Plaintiff is the niece of the deceased. In her affidavit sworn on 10 June 2020, she described her occupation as “Criminal Investigator”. She explained her job as being “in the area of fraud … So we intercept fraudulent behaviour, investigate fraudulent behaviour, prepare briefs of evidence for the Commonwealth Director of Public Prosecutions, and refer briefs of evidence, and take those matters to court. Sometimes we appear in court”: Tcpt, 24 November 2021, p 158(02-09). She attended the hearing in person.
There was no dispute that Janette, for the whole of her life, had known the deceased. They had a close, and loving, relationship, and there can be, and was, no dispute that she had provided the deceased with significant assistance, particularly after the death of Ken.

Stuart, who is now a solicitor, gave evidence of having known the deceased for the whole of his life, and of the closeness of their relationship. He also gave evidence of his observations of the deceased between 2015 and November 2017. He attended the hearing in person.
Mr Hodgins is a legal practitioner, holding an unrestricted practising certificate with the Law Society of New South Wales. He was admitted to practice in April 1997, having completed a Diploma of Law in July 1996. He also holds a Bachelor of Economics, as well as Financial Planning qualifications (Diploma of Financial Planning). Prior to being admitted as a legal practitioner, he had worked for a number of legal firms, on a full-time basis, whilst he was studying through the Law Extension Committee. He is admitted to practice in New South Wales and in the High Court of Australia. He has practised, principally, in the areas of conveyancing, general and commercial litigation, wills, probate and estates. He stated that, at the date of his affidavit, he had been “drafting Wills and other such documents for some 30 years”. He gave his oral evidence remotely.
Mr Creamer was an administrative assistant in the employ of Mr Hodgins from early 2014 until June 2017. He assisted Mr Hodgins “with the administrative tasks in his law practice and had, on several occasions, attended with Wayne to witness Wills both in the office and outside of the office”. His was a part-time position. He, also, gave his oral evidence remotely.
Leona Faye Letts was a neighbour of the deceased from about July 2003. She and her partner lived directly opposite the Eleebana property. She, too, gave evidence of her observations of the deceased over many years. She gave her oral evidence remotely.
Mr Adrian Corbould is a solicitor practising at Charlestown New South Wales. He gave formal evidence of the persons adversely affected if an order were made as sought by Janette, and the persons who are interested in the estate of the deceased, who have been served with notice of the proceedings. He was not required for cross-examination.
Mr Mark Sloan is a Process server, who gave evidence that he had personally served a Notice of Proceedings on 23 March 2020 on Lachlan Xavier MacPhee. Mr Sloan was not required for cross-examination.
Dr Milton Sales is a registered medical practitioner. He has held the Fellowship of the Royal Australian College of General Practitioners since 1993. He was a Visiting Medical Practitioner at Maroba from 2008 to 2017, where the deceased had been a resident. She continued to attend his rooms at Brunker Road General Practice, Adamstown, up until her death. He gave his oral evidence remotely.
Dr Ben Seckold is a registered medical practitioner. On 3 September 2020, he prepared a letter in which he stated that he had treated the deceased from 10 October 2017 until her death. He was not required for cross-examination, as he did not know the deceased at, or about, the time, she made any of the Wills to which reference has been made.
The affidavit evidence read by the Defendants was, to say the least, limited. Each gave evidence, amongst other things, that she, and he, respectively, did not see the deceased, at any time, during 2016. Each attended the hearing.
Carolyn Joyce Dale (formerly known as Carolyn Joyce Fletcher) is a niece of the deceased. She is Janette’s sister. She gave her evidence orally in Court. Evidence was tendered, without objection, that since 2003, Carolyn has suffered from very substantial white matter demylination, which causes explosive onset headaches and neurological symptoms, including some word finding difficulty and significant anxiety. Due to this injury she has had to take medical retirement from her work: Ex TBNM1/ 31-35. A letter dated 5 November 2021 from Dr Geoffrey K Herkes, Senior Staff Specialist of Neurology at North Shore Hospital, was provided to the Defendants’ solicitor, requesting that Carolyn not be called to give evidence in Court and “especially not be subject to cross-examination due to her neurological disorder”: Ex TBNM1/234.
Carolyn was able to give evidence without any apparent difficulty. The Court, and counsel were aware of her condition, and her cross-examination was not prolonged.
Debbie Jane McArthur is a registered nurse who is now retired. She commenced working as a registered nurse at Maroba in 2001. She retired in 2016. She gave evidence of the meaning of the cognitive impairment scale, to which reference will be made. She annexed a copy of a document headed “Interpretive Cognitive Score” dated 9 November 2015, which she had signed, relating to the deceased.
The parties' single expert, being an expert engaged pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 31.37, who gave evidence, was Dr Shelley Simpson, a highly experienced Senior Clinical Neuropsychologist. She was clearly an “expert witness” within the definition of that expression in UCPR r 31.18. A copy of her report was tendered: Ex JER1.
Dr Simpson gave evidence of the medical conditions from which the deceased was said to have suffered at the time of making the 2016 Will; how, if at all, the medical conditions affected the deceased’s appreciation of the act of making a Will, her appreciation of the nature and value, in general terms, of her estate, her ability to identify the natural objects of her testamentary affection, and her ability to comprehend and appreciate the claims to which she ought to give effect. Her report was grounded, principally, on the medical records concerning the deceased whilst she was being treated at John Hunter Hospital, at Belmont Hospital, and whist the deceased was a resident at Maroba. She did not examine, or otherwise, treat, the deceased in life.

Persons who did not give evidence and documents that were not produced

Because of submissions that were made, it is necessary, next, to identify some persons who did not give evidence and refer to documents that were not produced.
As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.
In Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, Kitto J observed, at 308, that:

“… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. …”

Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.
In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.
Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party’s case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.
These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [78] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).
In relation to the non-production of evidence, in Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181, Barwick CJ elaborated upon the drawing of inferences in circumstances where an item of potential evidence (in that case, a pick) was destroyed in advance of civil proceedings. Although his Honour dissented in the outcome, the principles referred to by him remain applicable. At 197, his Honour wrote:

“Ordinarily, though a case is normally better tried on the evidence which is produced than on that which is not, it can properly be said that the failure of a party to give or produce evidence which, in the circumstances of the case, that party in its own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support that party's case. Indeed, in some circumstances it might be inferred that it would support the opponent's case; but, if so, it must depend very much on the circumstances. But, in any case, the inference would depend upon some element of conscious repression or withholding of the evidence. The warrant for the inference must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of its significance in the case. In my opinion, these propositions are in accord with the decided cases which I have taken occasion to examine.”

In Bridges v Pelly [2001] NSWCA 31, Giles JA (Sheller JA and Brownie AJA agreeing) applied the statement made by Barwick CJ in considering a submission arising from the unavailability of certain notes in a medical negligence case. Giles JA wrote at [52]:

“Contrary to the submission which appears to have been made to the trial judge, unavailability of Mr Pelly's notes did not lead to an inference adverse to the respondent unless the respondent provided ‘an innocent explanation for not providing such notes’. Before such an inference was drawn it was necessary to conclude that there had been some element of conscious repression or withholding, a conclusion to be addressed with regard to relevant evidence with common sense appreciation of the circumstances (in Katsilis v Broken Hill Pty Co Ltd, that the pick may well have fallen unidentified into the employer's general stock of hand tools without design or neglect).”

In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]:

“…it is important to have regard to the abilities of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so...”

I have already identified the witnesses called by each party. There were a number of witnesses not called.
Andrew Robertson is Janette’s husband. Their sons are Stuart, who was born in December 1991 and Lachlan, who was born in September 1993. Each is a great-nephew of the deceased. Neither Andrew Robertson, nor Lachlan, played any part in the proceedings.
The mother of Penelope and Andrew, Valmai, who is said to have been present when Andrew, in particular, went to visit the deceased, in 2015, was not called to give evidence of her observations of the deceased, or of her relationship with the deceased. Even though it was open to the Defendants to call her as a witness to deny the representation made by the deceased, of the reason why Valmai was removed as a beneficiary, if the representation was untrue, they did not do so.
Carolyn’s husband, Rod, did not give evidence. He was identified as having attended Court with her when she gave her evidence and was cross-examined, and who, she stated, had attended with her on all, but one, occasion when she had visited the deceased at the Eleebana home, and also when she visited the deceased at Maroba: Tcpt, 30 November 2021, p 311(33-37).
No explanation was provided for the absence of each of these persons.
The solicitor, Mr Wilson, was not called by either party. However, as will be read, some emails from, and to, him were tendered at the hearing.
Although I have noted the absence of each of these persons, the ultimate conclusions will not be reached upon the basis that these persons were not called to give evidence. There is sufficient evidence, otherwise, for the Court to determine the issues in the proceedings.

Documentary evidence

In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material tendered, particularly going to the deceased’s medical condition. There were hospital records, some records from Maroba, and some contemporaneous documentary material produced by Mr Hodgins, that was relied upon, and which go to events leading to the execution of the 2016 Will.
There was no dispute as to the authenticity of any of the documents, and all but one, were tendered without objection: Ex TBM (the bundle containing the medical documents) and Ex TBNM1 (the bundle containing the non-medical documents). Other than on one matter, to which Dr Simpson referred, neither party suggested the underlying records were incorrect or unreliable.

Documents that were not produced

There is one issue relating to the failure to produce documents that requires detailed consideration.
A subpoena to produce documents was served on Mr Hodgins on 26 March 2020. It required various documents to be produced, including any will or testamentary instrument, of the deceased; documents being, or purported to be, documents relating to the preparation, or execution, of a will or other testamentary instrument, by, or on behalf of, the deceased; and documents relating to fees charged for services provided in connection with the preparation or execution of a will or other testamentary instrument on behalf of the deceased.
Initially, the only document Mr Hodgins produced, in answer to the subpoena, (other than the original of the 2016 Will), was a tax invoice dated 28 October 2016. He had responded to the subpoena by sending it to the Registrar: Ex TBNM1/238-239. The tax invoice was included in Subpoena Packet S1.
Later, there were some other documents produced by Mr Hodgins to which reference will be made later in these reasons.
Evidence was given by Mr Hodgins, and otherwise, that Janette had attended his office in October 2016 and that she had given him “two sets of - of written notes which were contained in separate sealed envelopes and she also gave me some email correspondence from Greg Wilson, solicitor, together with a copy of a draft will that - that Wilson had prepared for - for Mabel”: Tcpt, 23 November 2021, p 31(30-33).
Mr Hodgins has been unable to locate, and produce, the instructions, said to be in the handwriting of the deceased, provided to him by Janette. He stated that these handwritten instructions had been clipped together, with his own handwritten file note from the day the 2016 Will was executed, but none of these documents have been able to be found either: Tcpt, 23 November 2021, p 38(40)-(42). He gave evidence that the documents were then taken back to his office, on the following Monday, and were put with the file with written instructions for his assistant, Mr Creamer, on what to do with the documents and the Will: Tcpt, 23 November 2021, p 39(04-09). (There was unchallenged evidence given that he had taken notes on the day the 2016 Will was executed.).
Two separate files were opened at his office for the deceased’s matter: Tcpt, 23 November 2021, p 33(25-26). Mr Hodgins explained that there should only have been one file opened, but for some reason, two files had been opened in the matter and given the same file number. The documents were not able to be found in either of the two files: Tcpt, 23 November 2021, p 39(26-30).
Mr Hodgins also stated that he had conducted, what appears to have been, a rigorous and thorough search of the archive files from prior to the date when the 2016 Will was prepared to the present, including files not yet archived, and other files that were being worked on around the same time as the 2016 Will was being prepared. He had been unable to locate the handwritten instructions or his own handwritten notes: Tcpt, 23 November 2021, p 31(39-42).
The absence of knowledge of precisely what had happened to the documents, despite a thorough search of his files, had led Mr Hodgins to conclude that the documents had either been misfiled, lost, or unintentionally destroyed: Tcpt, 23 November 2021, p 39(33-36). Otherwise, he was unable to explain why he no longer had them: Tcpt, 23 November 2021, p 38(45-46).
At the time the 2016 Will was prepared, Mr Hodgins had no process of digitising completed matters and hard copy files were simply stored to be archived in the future: Tcpt, 23 November 2021, p 32(25-28).
It was not suggested to Mr Hodgins that the documents had not existed, or that they had been intentionally destroyed, or suppressed, by him, for the purpose of defeating the Defendants’ defence and the Cross-Claim, or to make proof of the Defendants’ case more arduous. Nor was the Court asked to apply a presumption of mala fides (and I would not, in any event, be prepared to do so).
Senior counsel for the Defendants was critical of Mr Hodgins’ evidence. He emphasised that Mr Hodgins was not able to locate the notes he took when assisting the deceased to execute her 2016 Will and so was unable to rely on contemporaneous records to refresh his memory when giving evidence: Tcpt, 1 December 2021, p 376(07-08). However, as I pointed out, that submission simply means that the evidence given by Mr Hodgins must be looked at with greater care: Tcpt, 1 December 2021, p 376(46-47).
In reaching my conclusion, which follows, I have not forgotten that in addition to the ordinary caution that should accompany a solicitor who acts for an elderly client, there is always the prospect that there might be a challenge to the deceased’s capacity and knowledge and approval of a new Will. However, I am satisfied that Mr Hodgins made a meaningful attempt to document the steps he undertook, with the deceased, to ensure that she knew the meaning and effect of the 2016 Will. Mr Creamer acknowledged that there was a notepad and that Mr Hodgins had written “intermittently” on it.
In my view, there is no reason to disbelieve Mr Hodgins’ evidence on this topic, even though the evidence does not establish precisely how the documents not produced came to be missing, mislaid, or destroyed. He is a solicitor and would understand the serious consequences of deliberately destroying, or suppressing, evidence. He gave evidence of the searches made to find the documents, which searches I am satisfied were reasonable. I consider his evidence on the topic to be reliable.
I have not been persuaded that the loss, or destruction, of the documents was other than accidental. I am unable to find any element of design, conscious repression, or withholding. In those circumstances, there is no reason to draw an adverse inference from the failure to produce the documents. However, I shall remember that, in some respects, Mr Hodgins is without the corroboration which might have been expected in the circumstances of the case. It will be necessary to consider his evidence in association with a forensic analysis of the other available evidence.

The Principles regarding Evidence

I next turn to some legal principles that I have remembered in my assessment of the witnesses who gave evidence.
As in most probate disputes, the personality, state of mind, desires, and prejudices, of the central person, namely the deceased; the relationship with persons for whom she, or he, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).

It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]:

“… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. ‘Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough’: John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66:
‘Our duty is limited to this, to take care that that, and that only, which is the true expression of a man’s real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.’

Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will.”

It will be necessary to repeat some of the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence. For the most part, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state, of the deceased at various times.
It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly confirm or deny statements made. That need may even be greater where the person giving evidence of the conversations has a self-interest.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

Also, I refer to what was written in Wesley v Wesley (1998) 71 SASR 1, by Debelle J at 5:

“Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.”

In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that:

“... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”

His Honour’s observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State ofNew South Wales v Hunt [2014] NSWCA 47 at [56].
I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at [107]; [1989] HCA 60:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling.”

Because of submissions of the Defendants as to the evidence of Mr Hodgins in particular, I should also mention an article by the former the Chief Judge at Common Law, P McClellan, entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

More recently, in Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch), Chief ICC Judge Briggs wrote, at [49] – [50]:

“When assessing the reliability of the six witnesses seen and heard, I have in mind the researches and findings of the cognitive psychologist and expert on human memory Dr Elizabeth Loftus, and the criminal psychologist and researcher at University College London, Dr Julia Shaw. Human memory is not stable. It has a strong propensity to change over time, to provide false accounts and be susceptible to suggestion. In short, memory is malleable. A confident witness may be mistaken. Contemporary documents may provide a valuable guide to the truth… In Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) Leggatt J (as he was) explained that the litigation process itself may lead to a witness's memory of events being based on documents and later interpretation rather than the original experience; all remembering of distant events involves reconstructive processes:
‘[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.’

Leggatt J set out the best approach to evidence [22]:
‘[T]he best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’"

(Although there is a reference to “a commercial case”, the propositions which were stated are relevant to most cases, including Probate cases.)
Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645.
Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).
I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter ofKit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).
In Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is said:

“Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills.”

If a duly executed will has been professionally prepared and then explained to the maker by an independent, and experienced, solicitor, it may be markedly more difficult to challenge its validity on the grounds of lack of capacity than in a case where those prudent procedures have not been followed.
Mummery LJ (with whom Patten LJ agreed) concluded in Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74, at [57], that it would be “a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational”.
Mummery LJ continued at [60]:

"My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property."

In Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA, with whom Beach and Kyrou JJA agreed, wrote:

“A solicitor who prepares a will comes under professional duties to exercise proper care and attention. In the United Kingdom, there are several decisions that inform the duty of a solicitor when taking instructions from an infirm testator. In Kenward v Adams, and Re Simpson, Templeman J said that, where a solicitor is making a will for an old or infirm testator, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Needless to say, this is a counsel of prudence that must be subject to the circumstances of the case. The exigencies of the situation may make it impracticable; nor would it need to be followed where, despite the age of the testator, he is obviously well and is proposing to make a will that distributes his estate in a manner which is uncontroversial. Where it is evident that a will may be controversial and a solicitor does not take elementary precautions, the court will have to look elsewhere if it is asked to determine capacity and knowledge and approval. In Ashkettle v Gwinnett, Christopher Pymont QC, sitting as a Deputy Judge in the Chancery Division, referred to the judgments of Mummery LJ and Sir Scott Baker in Hawes v Burgess to the effect that ‘it is ‘a very strong thing’ for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational’. Nonetheless, he said:
I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based.” (Citations omitted)

In Rowe v Sudholz [2019] QSC 306, at [149], Applegarth J did not go as far as Santamaria JA in Veall v Veall, but preferred to say “if the solicitor’s view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little”.
However, even in cases where a solicitor may genuinely believe that the testator had testamentary capacity at the time he, or she, executed the will, that opinion does not displace the Court’s role in deciding whether in fact the testator had testamentary capacity: Ruskey-Fleming v Cook [2013] QSC 142 at [63] and [71]. The weight to be given to the solicitor’s evidence will depend on his, or her, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker’s presentation to the solicitor, and whether there are any “red flags” suggesting a possible challenge to capacity. It will also depend on “the level of enquiry and discussion on the part of the lawyer of, and with, the deceased”: Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [51].

Knowledge and approval

In addition to showing that the deceased had testamentary capacity, the Plaintiff, as the propounder of the 2016 Will, must also show that she knew and approved its contents. This means no more than that the relevant Will represented the deceased’s testamentary intention.
The requirement for knowledge and approval is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. The requirement of knowledge and approval only arises for consideration if the Court is satisfied that the will-maker had testamentary capacity.
Chadwick LJ in Hoff v Atherton continued:

"A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.
…
Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."

In Starr v Miller, at [472]-[474], I discussed the development in the law’s approach in situations where knowledge and approval is in issue:

“Traditionally, a two-stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to “excite suspicion” on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not “excite suspicion”, then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.
More recently, however, the single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [22], is considered more appropriate:
‘Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix’s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in the unreported case of Crerar v. Crerar, cited and followed by Latey J in Morris [1971] P 62, 78E-G, namely that the court should “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.”’

In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana, at [165] (Leeming JA).”

The principles governing knowledge and approval were authoritatively stated in Tobin v Ezekiel. Meagher JA, with whom Basten and Campbell JJA agreed, wrote, at [46] – [48]:

“Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. ... Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case ... Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator.
… prescribing ‘vigilance’ and ‘careful scrutiny’ and referring to the court being ‘affirmatively satisfied’ as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw … or, now, s 140(2) of the Evidence Act 1995”.

In Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879, Chadwick LJ wrote at [65]:

“The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator’s testamentary intentions. That is not, of course, to suggest that the circumstances of execution or the contents may not, in the particular case, be of the greatest materiality in reaching a conclusion whether or not the testator did know and approve of the contents of the document – and did intend that they should have testamentary effect. But their importance is evidential. There is no over-riding requirement of morality. If Lord Hatherley’s reference to ‘the righteousness of the transaction’ in a speech delivered in the late 19th century [in Fulton v Andrew [1875] UKLawRpHL 3; (1875) LR 7 HL 448 at 471] leads to misunderstanding at the beginning of the 21st century, then the time has come to consider whether that phrase is still helpful. For my part, I think it is better to avoid it.”

This passage was quoted with approval by Leeming JA (with whom Meagher and Payne JJA agreed) in Lewis v Lewis [2021] NSWCA 168 at [19]. His Honour also noted, at [20] that “Peter Gibson LJ made the same point at [36] concerning the inappropriateness of rejecting part or all of a will merely because of the court’s disapproval of its propounder”.

Suspicious circumstances

The principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement reference to authorities. His Honour said (at 528):

“(1)   In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)   Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)   If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)   The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator’s appreciation and approval of the contents of the will.
(5)   But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)   Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7)   The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.”

I have also found the following passage in Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017, A Cheung J, at [71] – [74] to be useful:

“Before I move on to deal with the facts, it is necessary to observe that the whole point of the second rule in Barry v Butlin, when properly understood, is to ensure that the testator did know and approve of the contents of the will. That is the ultimate aim. The rule is a rule of evidence and indeed a rule of good common sense. … All circumstances that are relevant to the issue of knowledge and approval must be examined with vigilance and jealousy. But the standard of proof remains the civil standard, rather than proof beyond reasonable doubt.
It is important to remember that what brings the second rule in Barry v Butlin into operation must be circumstances attending, or at least relevant to, the preparation and execution of the will itself: Re R, deceased [1951] P 10, 17. However, once the suspicion of the court is aroused, the court would look at the entire evidence with the appropriate degree of vigilance and jealousy, in order to determine whether, on the balance of probabilities, the testator did know and approve of the contents of the will. The entire evidence must, by definition, include matters and circumstances not attending, or even relevant to, the preparation and execution of the will itself. Sometimes, those extraneous matters and circumstances are also referred to as “suspicions” or “suspicious” circumstances. Indeed, in the present case, counsel on both sides have used those expressions rather liberally. I have no objection to the usage of such expressions so long as it is remembered that the “triggering” circumstances are those attending, or at least relevant to, the preparation and execution of the will itself.
Once such triggering circumstances are present and the court’s suspicion as to whether the testator really knew and approved of the contents of the will is aroused, the court must examine the entire circumstances of the case. Some of these circumstances may give rise to “suspicions” in the very general sense of the word regarding whether the testator did know and approve of the contents of the will. But whether they do have such an effect or not, it is really a question of weight to be attached to all the relevant circumstances in determining where the balance of probabilities lies in terms of the issue of knowledge and approval.
One must not be misled by the requirement that the court’s “suspicion” be dispelled into thinking that unless each and every relevant or “suspicious” circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will. To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will. Relevant or “suspicious” circumstances are pointers. They are not the end in themselves. For the court’s ultimate task is to see whether the court’s “suspicion” can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will. Its task is not to see to it that each and every “suspicious” circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related. One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents. In those cases, the court’s duty is to pronounce in favour of the will.”

When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face: In re R (dec’d) [1950] 2 All ER 117 at 121.
A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 at [2] – [9]. It is not necessary to repeat what is written there.
In Wintle v Nye [1959] 1 WLR 284, at 291, Viscount Simonds described the need fully to assess the extent of the suspicious circumstances where a will had been prepared by a beneficiary:

“It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”

The Court of Appeal confirmed in Tobin v Ezekiel, at [47]-[48] (Meagher JA with whom Basten and Campbell JJA agreed):

“Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case... the relevant circumstances were described... as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator...”

The authorities were referred to in Mekhail v Hana; Mekail v Hana at [139] – [147].

Conclusions

I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.
The starting point is that the burden of proving testamentary capacity and the deceased’s knowledge and approval lies on the Plaintiff, who seeks to propound the 2016 Will. Due execution of the 2016 Will was established. There was no dispute, then, that the evidence, as a whole, raised a doubt as to the deceased’s testamentary capacity. It was conceded that the Plaintiff then had to affirmatively establish that the deceased had testamentary capacity and that she knew and approved the 2016 Will. The question argued was whether she had discharged that burden.
I have closely considered, and reviewed, the evidence of each of the parties. The Plaintiff gave detailed evidence, which for the most part, was not successfully challenged. The Defendants, on the other hand, gave evidence that was extremely limited, and appeared to relate, significantly, to periods some years before the 2016 Will was made. Even if the deceased’s conversations were repetitive, and the range of topics limited, perhaps that reflects more the narrow circumstances in which she was living, both before, and after her move to Maroba, rather than her mental or cognitive state.
Another matter of some relevance is that when the Plaintiff told the family members that the deceased wished to sell the Eleebana property, and when it was sold, apparently, no one questioned the deceased's capacity to enter into the transaction. That no one who was told did so, is relevant to the question of whether the deceased had the requisite testamentary capacity to make the 2016 Will, just a few months before the Contract for Sale and then the Transfer were signed.

Even if the Plaintiff was not immune to factual errors in recall, or not immune to having her recall subconsciously coloured by the delay in making her affidavits, I have accepted her evidence overall. I have also earlier referred to the evidence of Ms Letts, who had known the deceased for many years and who was truly independent. Her evidence does not demonstrate any lack of capacity.
In the present case, there was also direct evidence from both the solicitor who took instructions from the deceased, who drafted the 2016 Will, and who was one of the attesting witnesses, and also from the other attesting witness. They were best placed to give evidence about the events in dispute between the parties. The solicitor was well aware of the capacity issues which could arise particularly with an older will-maker and he asked the attesting witness to be attuned to this issue. Any reservations about Mr Hodgins as a witness three or four years after the events do not cause me to consider that he did not know the fundamental requirements of obtaining proper instructions for the making of a Will.
It is most regrettable that there is an absence of informative contemporary records, which was not available at the hearing, but I am satisfied that the contemporary records in the possession of Mr Hodgins were lost, mislaid, or were unintentionally destroyed. I have treated what Mr Hodgins wrote, and said, with some caution because of this, but I am satisfied that the evidence that he gave was his best, and genuine, recollection, of the events that occurred. The recollection was also corroborated, at least in part, by Mr Creamer, whose evidence made the evidence of Mr Hodgins more compelling.
I am satisfied that Mr Hodgins took instructions from the deceased as to the terms of the 2016 Will, rather than from the Plaintiff; that the deceased explained why she had made no provision for Valmai, and indirectly less provision for Carolyn; and the reasons why she wished to change the 2013 Will in other respects, so as to benefit the Plaintiff. His conversation with the deceased, in regard to the 2016 Will, was not simply perfunctory. He asked her a number of questions in open ended form, rather than in a leading form, to which questions he received appropriate answers. Only he and Mr Creamer were present in the meeting room, with the deceased, during the discussion about the 2016 Will. I am also satisfied that Mr Hodgins read the 2016 Will out loud to the deceased before it was executed by her.
Following the time spent with the deceased, it appears that neither had concerns about her capacity. Whilst it may have been helpful, now, had formal assessment of the deceased’s capacity been done by a medical practitioner, it was not, because of Mr Hodgins’ firm, and expressed, belief, based on his observations and experience, that it was not necessary.
In this regard, Mr Creamer, at least inferentially, came to the same view, as he did not raise any concerns with Mr Hodgins and acted as the second attesting witness.
Both of the attesting witnesses, who were present throughout the discussion, have given evidence that the deceased followed the discussion well and that she gave appropriate responses. In addition, she appears to have remained attentive and focussed. Then, after execution of the 2016 Will, without prompting, the deceased noted that the name of the name of the Plaintiff was spelt incorrectly on the Power of Attorney.
In addition, the contents of the 2016 Will were consistent with the draft Will prepared by Mr Wilson following instructions given to him by the deceased. I am satisfied that, in its expression, each, when prepared, represented what the deceased wanted. This demonstrates also, that the deceased had been thinking about her testamentary intentions some months before she conferred with Mr Hodgins on 29 October 2016. Her decision to change her 2013 Will does not appear to have been an abrupt, or a rashly made, one.
Nor did the terms of the 2016 Will immediately bespeak a concern for the deceased’s capacity, as the 2016 Will appeared to be inofficious. The terms of the Will were straightforward making a number of legacies and then dealing with the residue, a term which the deceased appeared to understand.
Furthermore, this is not a case in which the nature of the deceased’s estate, or the terms of the 2016 Will, were particularly complex. Nor were the terms of the 2016 Will, apart from the residue clause, significantly different to each of her prior Wills, which were in a similar form, with a mixture of family and non-family beneficiaries.
I do not see any basis for doubt that the deceased knew that those with claims on her bounty were the persons for whom she made provision in the 2016 Will. She was also made aware of the contents of her 2013 Will and that she had, then, divided her residuary estate, equally, between the Plaintiff, the Defendants and Carolyn.
Therefore, at the time she executed the 2016 Will, the deceased considered for whom provision ought to be made. In my view, her decision to leave the residue of her estate to the Plaintiff, who had been a loving and caring niece to her throughout their joint lives, and who, for about 7 years prior to the making of the 2016 Will, had been the person primarily involved in the life of the deceased, was understandable.
The other changes were also not inexplicable. That the deceased made less provision, by way of residue, for each of the Defendants, was unsurprising, as acknowledged, at least, by Penelope, who did not expect any provision to be made for her. That the deceased omitted Carolyn as an executor and made less provision for Carolyn, who had been unwell, were also unsurprising and explicable, even though they had maintained a relationship. Carolyn clearly did not play the same role in the life of the deceased as that played by the Plaintiff.
Because it has been raised in relation to Carolyn, it is important to note that there is no requirement that the assessment of the validity of a Will involves a detailed inquiry into the reasons why the will-maker has made a significant change at the time the will is executed. Whilst apparently rational changes to a prior will may support a claim of capacity and apparently irrational changes may undermine it, the Court should not, in a Probate suit, substitute the examination of testamentary capacity with a detailed examination of moral obligation.
Even if the reasons for omitting the Defendants as residuary beneficiaries in the 2016 Will were not explained in detail, or even if her reasons were unreasonable (which I have found they were not), it does not mean that the deceased lacked capacity.
As earlier written, capacity to make a will is to be assessed having regard to the particular will made. I have taken into account the contents of the 2016 Will, which seems to be relatively straight forward, consisting of only 2 pages (the third with only the attestation clause) with 5 simple clauses.
Judged at the time she executed it, the 2016 Will was not irrational on its face. In this regard, the apparent rationality of the 2016 Will, from the deceased’s perspective, is an element of my assessment of capacity. However, I do not conclude that the deceased had testamentary capacity merely because the 2016 Will was rational from her perspective.
Similarly, whilst the opinion of Mr Hodgins that the deceased possessed testamentary capacity is not conclusive, it accords with the conclusions which flow from other objective evidence.
In relation to her medical condition, it is clear that no formal comprehensive medical assessment of testamentary capacity was made. However, the deceased was 94 years old at the time she made the 2016 Will and was somewhat hard of hearing. It was likely that she was repetitive in her conversations. However, even the presence of some cognitive impairment, does not necessarily preclude, and is not necessarily incompatible with, testamentary capacity.
I have carefully considered the evidence of Dr Simpson and of Dr Sales. Dr Simpson never saw, or treated, the deceased. I formed the view that she was not prepared to consider, as truthful, the evidence of some of the lay witnesses, including Mr Hodgins and Mr Creamer. When asked about the evidence of the former, and asked to assume the truth of that evidence, her opinion of the deceased’s cognitive condition appeared to change and became more qualified. (She had only referred to the affidavit evidence of Mr Hodgins in her report, without specifying its contents, in any detail: see paragraph 5.5 of Ex JER1. She did not refer to Mr Creamer’s affidavit at all.)
In fairness to Dr Simpson, her opinion was circumscribed by the quality of the information on which it rested. She was not present when either Mr Hodgins or Mr Creamer gave his evidence and was cross-examined. In this regard, she did not, necessarily, accept the untested evidence of Mr Hodgins. Her opinion was formed before the hearing, which meant it was not based on all the evidence before the Court. Also, she would have been unaware of the email correspondence from Mr Wilson and also the draft Will prepared by him for the deceased in August 2016 which was very similar to the 2016 Will.
However, it seemed to me, from reading her report, and listening to her evidence, that Dr Simpson’s conclusions focussed, principally, on the deceased’s condition whilst she was in The John Hunter Hospital and did not give sufficient weight to the likely improvement in her condition following her treatment there, then at Belmont Hospital, and then over the next 12 months at Maroba. Dr Simpson’s reliance upon the affidavit of Ms McArthur, who, herself, was relying upon medical notes taken whilst the deceased was acutely unwell, or whilst she was recovering, demonstrates the importance to her of the deceased’s medical condition, particularly in late 2015 and then in November 2018 in reaching the conclusions that Dr Simpson did. The assessment of capacity is task, situation, and time, specific.
Dr Simpson noted that Dr Sales did not appear to have carried out a formal assessment. In the light of his evidence, it appears that there was nothing that he observed that alerted him to the need for such assessment to be carried out.
Overall, I have found the evidence of Dr Sales, who had the opportunity of regular contact, and many consultations, with the deceased during the whole of 2016 and beyond even though there was no information available in the medical records provided by him to indicate any formal cognitive screening had been conducted by him, to be more convincing. After all, he had contact with the deceased for about 2 years. He acknowledged it was only towards the end of the 2 year period, that the deceased’s cognitive abilities declined.
In summary, therefore, having carefully considered the evidence and counsels’ helpful submissions, I am satisfied that, at the time she gave instructions for the 2016 Will, and at the time she executed that Will, even if there was some degree of cognitive impairment, bearing in mind her age, the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property, noting, impressively, in my view, that Maroba held some of her money; there was no suggestion of psychopathology affecting her contact with reality; she had an intact intention of how, and to whom, she wished to dispose her assets on her death; and she understood the nature of the changes she was making. She was able to comprehend and appreciate the claims to which he ought to give effect, knowing who the persons were who had a claim on her bounty and she was able to weigh up those claims on her bounty. Importantly, it appears that she had reflected on how her property should be disposed of by will prior to executing the 2016 Will.
Turning next to knowledge and approval, which is independent from testamentary capacity, the concept is concerned with the contents of the 2016 Will, and whether they expressed the deceased’s intentions, and not with the process by which the testamentary intention was formed. In addition, any relevant suspicion must be one that casts doubt on whether the deceased knew and approved the contents of the 2016 Will and must relate to the preparation and execution of that Will.
Having heard, and read, all of the evidence, including the draft Will prepared by Mr Wilson, I am satisfied that the 2016 Will reflected the deceased’s testamentary intentions. That Mr Hodgins read the Will aloud, in the presence of Mr Creamer, to the deceased, before she executed it, is also a relevant fact on this aspect of the case. I do not treat this fact as conclusive evidence that she knew and approved of the contents of it: Lewis v Lewis at [148] (Leeming JA).
The court must consider, and I have considered, all the relevant evidence available in order to determine whether the burden of proof has been discharged by the Plaintiff and I am satisfied that it has.
In addition, I have already referred to the fact that the deceased’s signature on the 2016 Will was attested by Mr Hodgins and Mr Creamer and that the Will contained an attestation clause. Each gave evidence that I have accepted. The conclusion is also reached by an assessment of the other lay, and medical, evidence, bearing upon the deceased’s health to which I have already referred.
I am satisfied that the Plaintiff has proved, affirmatively, even without the benefit of a presumption of knowledge and approval arising from due execution, that the deceased knew and approved of the contents.
There is insufficient evidentiary support for the conclusion that the Plaintiff participated, in a meaningful way, in the preparation and execution of the 2016 Will. Whilst it is true that she obtained the name of the solicitor, Mr Hodgins, from her son, she simply passed on the deceased’s written instructions to him and did not otherwise provide any instructions to him about the contents of the deceased’s Will.
In relation to Mr Wilson, there was no evidence which established, affirmatively, that the Plaintiff had initiated the idea of the deceased making a new will. To the extent that she provided instructions, what she told him, in the email, related to her understanding of the deceased’s instructions, namely to increase the legacy to each of the Defendants. I believe that she was telling the truth. What she communicated to him was against her own pecuniary interests, and confirms that she was not endeavouring to protect, or advance, her own position by involving herself in the preparation of a Will in 2016.
In any event, both Mr Wilson and Mr Hodgins took instructions from the deceased directly. She was not present when Mr Hodgins conferred with the deceased at the time the 2016 Will was signed.
On the whole of the evidence, including the full background of the relationships between each of the parties and the deceased, any doubts that may exist are not sufficiently substantial to prevail over the evidence that tells in favour of the deceased being of sound mind, memory and understanding at the time she executed the 2016 Will and that she knew and approved its contents. Any suspicion of the Court, as alleged by the Defendants, or otherwise, looked at with the appropriate degree of vigilance and jealousy, has been dispelled by affirmative evidence of the deceased’s knowledge and approval of the contents of the 2016 Will. I am satisfied on the balance of probabilities that the deceased did know and approve of the contents of the 2016 Will.
Applying the vigilant and careful scrutiny appropriate, having carefully considered all of the evidence, lay, legal and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec’d); Easter v Griffith, “a grave matter”, I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(1) of the Evidence Act 1995 (NSW) that the 2016 Will is the last valid Will of the deceased and that it expressed the mind of the deceased, that she understood what she was doing and its effect, and that it truly represented her testamentary intentions.
Having been persuaded by the Plaintiff that this is a case where the solicitor retained to prepare a Will obtained instructions from the deceased, prepared a draft Will, which he went through with her, formed an opinion as to her testamentary capacity, and also ensured that the deceased knew and approved of the 2016 Will, the Defendants’ Cross-Claim must be dismissed.
The Court orders that:

Probate in solemn form of the Will made on 29 October 2016 of Mabel Claire Hogan be granted to the Plaintiff.

The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant;

The Cross-Claim filed on 5 May 2020 be dismissed;

If the parties are unable to agree on how costs should be borne, the matter is adjourned, for directions, to 2:00 p.m. on 10 February 2022 or such other date as arranged by the parties and Court.

The Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.

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Decision last updated: 21 December 2021

Medium Neutral Citation:	Robertson v Barker [2021] NSWSC 1682
Hearing dates:	23-25 and 30 November 2021 and 1 December 2021
Date of orders:	21 December 2021
Decision date:	21 December 2021
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The Court orders that: (a) Probate in solemn form of the Will made on 29 October 2016 of Mabel Claire Hogan be granted to the Plaintiff. (b) The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. (c) The Cross-Claim filed on 5 May 2020 be dismissed. (d) If the parties are unable to agree on how costs should be borne, the matter is adjourned for directions to 2:00 p.m. on 10 February 2022 or such other date as arranged by the parties and Court. (e) The Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
Catchwords:	SUCCESSION — Contested probate – Elderly will-maker - Validity of Wills - The Plaintiff is the executor named in the duly executed Will of the deceased made on 29 October 2016 – Last Will of the deceased in time – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances alleged by the Defendants at the time the deceased made the 2016 Will - Whether onus on the Plaintiff, as propounder of the 2016 Will, has been discharged - Agreement of the parties that if the 2016 Will is not the subject of a grant, Probate in solemn form of a Will made by the deceased on 3 May 2013, the penultimate Will, should be made.
Legislation Cited:	Births Deaths and Marriages Registration Act 1995 (NSW) Evidence Act 1995 (NSW) Powers of Attorney Act 2003 (NSW) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Attwell v Morgan [2019] WASC 182 Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 Banks v Goodfellow (1870) LR 5 QB 549 Barry v Butlin (1838) 2 Moo PC 480 Beatson v Perry (1906) 6 SR (NSW) 167 Boughton v Knight (1873) LR 3 P&D 64 Boyce v Bunce [2015] NSWSC 1924 Bridges v Pelly [2001] NSWCA 31 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brown v McEnroe (1890) 11 NSWR Eq 134 Brown v Wade [2010] WASC 367 Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 Camden v McKenzie [2007] QCA 136 Carr v Homersham [2018] NSWCA 65 Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 Choy Po Chun v Au Wing Lun [2018] HKCA 403 Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 Croft v Sanders [2019] NSWCA 303 D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333 Day v Couch [2000] NSWSC 230 Den v Vancleve (1819) 2 Southard 589 Dickman v Holley; Estate of Simpson [2013] NSWSC 18 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 Evans v Braddock [2015] NSWSC 249 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 Frizzo v Frizzo [2011] QCA 308 Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Harrison v Rowan (1820) 3 Washington 585 Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 In re R (dec’d) [1950] 2 All ER 117 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181 Kerr v Badran; Estate of Badran [2004] NSWSC 735 King v Hudson [2009] NSWSC 1013 Kogan v Martin [2019] EWCA Civ 1645 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Kyros v Stavrakis [2009] NSWSC 163 Lewis v Lewis [2021] NSWCA 168 Longman v R (1989) 168 CLR 79; [1989] HCA 60 Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 McNamara v Nagel [2017] NSWSC 91 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Musa v Alzreaiawi [2021] NSWCA 12 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Norris v Tuppen [1999] VSC 228 Parton v Johnson (1868) LR 1 P and D 549 Payne v Parker [1976] 1 NSWLR 191 Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep)) Perrins v Holland [2009] EWHC 1945 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Re Hodgson (1885) 31 Ch D 177 Revie v Druitt [2005] NSWSC 902 Rowe v Sudholz [2019] QSC 306 Ruskey-Fleming v Cook [2013] QSC 142 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 Smith v Tebbitt (No.2) (1867) L.R. 1 P&D 398 Starr v Miller; Starr v Miller [2021] NSWSC 426 State of New South Wales v Hunt [2014] NSWCA 47 Stevens v Vancleve (1822) 4 Washington 267 Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 Tu v Tu; Estate of Tu [2008] NSWSC 458 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 Wesley v Wesley (1998) 71 SASR 1 Wintle v Nye [1959] 1 WLR 284 Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197
Texts Cited:	G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy (2nd ed, 1989, Law Book Co) Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3 John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) P McClellan “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
Category:	Principal judgment
Parties:	Janette Ruth Robertson (Plaintiff) Penelope Jane Barker (first Defendant) Andrew John Barker (second Defendant)
Representation:	Counsel: Mr C Birtles (Plaintiff) Mr G Waugh SC with Mr H Morrison (Defendants) Solicitors: Turnbull Hill Lawyers (Plaintiff) Crowther Sim Lawyers (Defendants)
File Number(s):	2019/371048
Publication restriction:	Nil