Roche v Roche - [2017] SASC 8

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
ROCHE v ROCHE & ANOR
[2017] SASC 8
Judgment of The Honourable Chief Justice Kourakis
8 February 2017
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - FORMS OF UNSOUNDNESS OF MIND
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - EVIDENCE - GENERALLY
The plaintiff (Shauna) seeks an order revoking a grant of probate in relation to a will made by her father (John) in 2006 and a grant of probate in solemn form in respect of a will made in 1997. That order is sought on the basis that John lacked testamentary capacity and did not know or approve of the contents of the 2006 Will. The defendants (Fiona and Deborah) are Shauna’s sisters and the executors of the 2006 Will who have obtained a grant of probate in common form. Fiona and Deborah bring a cross-action seeking a grant of probate in solemn form in relation to the 2006 Will.
The 2006 Will was made in the context of a disagreement between Shauna and the rest of the family as to how Shauna would remain involved in the family business. At the time, the family business was also going through a significant restructure. Shauna eventually asked to be bought out of the business. The effect of the 2006 Will was that Shauna was no longer an executor of the Will or trustee of the relevant controlling trusts but could receive distributions at Fiona and Deborah’s discretion.
It is common ground that at the time the 2006 Will was executed, John was either suffering from or in the prodromal phase of frontotemporal dementia. The parties dispute whether this compromised his testamentary capacity. The evidence of the lay witnesses, in particular John’s daughters, was affected by the familial dispute and attempts to advance their respective cases. This affected, to varying degrees, their credibility and reliability.
Around the time of executing the 2006 Will, John wrote two documents recording his instructions in relation to the will, one addressed to his solicitors and one to his trustees. These documents are strong evidence that John had an understanding of the nature and extent of his estate as well as his daughter’s competing claims on that estate. Other documentary evidence generally supports this conclusion.
The testimony of John’s solicitors who witnessed the execution of the 2006 Will and other related documents as well as their contemporaneous notes record descriptions of John’s behaviour at the relevant times. According to that evidence, John was relatively lucid, organised and knowledgeable in his understanding of the complex family business, the range of transactions made necessary by the restructure and the making of the 2006 Will.
The experts briefed by the parties disagreed as to whether John had testamentary capacity when the 2006 Will was executed. In general, the evidence was that John’s frontotemporal dementia affected his executive planning capacity, power to concentrate and left him uninhibited. Yet the test for testamentary capacity is more concerned with whether the testator comprehends the extent of their estate, the competing claims on that estate and the practical legal effect of the disposition.
Held, dismissing the plaintiff’s action and allowing the defendant’s cross action:
1.      The combined force of the evidence is such that if John was drawn to the matters relevant to the making of the 2006 Will in a structured setting he had sufficient comprehension to have testamentary capacity.
2.      The plaintiff’s application for revocation of the probate granted out of this Honourable Court in respect of the last will and testament of John Justin Roche dated 16 February 2006 is dismissed.
3.      There be a grant of probate in solemn form of the last will and testament of John Justin Roche dated 16 February 2006.
Wills Act 1936 (SA) s 8, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Re Estate of Griffith (1995) 217 ALR 284; Thomas v Nash (2010) 107 SASR 309; Veall v Veall [2015] VSCA 60, applied.
Bailey v Bailey (1924) 34 CLR 558; Estate of Stanley William Church [2012] NSWSC 1489; Gray v Hart [2012] NSWSC 1435; In the Will of Mary Wilson (1897) 23 VLR 197; Kozak v Berwecki [2008] NSWCA 39; Nicholson v Knaggs [2009] VSC 64; Read v Carmody [1998] NSWCA 182; Symes v Green (1859) 1 Sw & Tr 401; Worth v Clasohm (1952) 86 CLR 439, discussed.
Boreham v Prince Henry Hospital (1955) 29 ALJ 179; King v Hudson [2009] NSWSC 1013; The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934, considered.

ROCHE v ROCHE & ANOR
[2017] SASC 8
Civil

KOURAKIS CJ: In this action the plaintiff Shauna Roche (Shauna) seeks an order revoking the grant of probate in respect of the will of her late father John Justin Roche (John) executed on 16 February 2006 (the 2006 Will) and a grant of probate in solemn form of the penultimate will made by John on 24 December 1997 as varied by codicils made on 15 November 2000 (the November 2000 codicil) and 9 December 2005 (the December 2005 codicil). I will refer to the 24 December 1997 Will as varied by the November 2000 and December 2005 codicils as the December 1997 Will. Shauna seeks that relief on the grounds that:
1John lacked testamentary capacity at the time he executed the 2006 Will; and
2John did not know and approve the contents of the 2006 Will.
Shauna does not claim that the 2006 Will was procured by undue influence. The issues to be determined in this action are therefore:
1Was the Will executed in accordance with the formal requirements of the Wills Act?
2Did John have testamentary capacity when he executed the 2006 Will?
3Did John know and approve the contents of the 2006 Will?
The defendants, Fiona Roche (Fiona) and Deborah Hamilton (Deborah) are the executors named in the 2006 Will and I will refer to them jointly as such. The executors obtained a grant of probate in common form on 22 August 2011 and bring a cross-action in this proceeding seeking a grant of probate in solemn form in respect of the 2006 Will. The executors obtained the common form probate after Shauna permitted a caveat she placed on 6 August 2010 against the 2006 Will to lapse. On 20 October 2011 Shauna asserted that the failure to renew the caveat was inadvertent and so the revocation proceedings were commenced. In the intervening period a material portion of the estate was distributed.
It is common ground that at the time he made the 2006 Will John was suffering from, or in the prodromal phase of, frontotemporal dementia. What is in dispute is whether that condition compromised his testamentary capacity. On that question the opinions of the expert witnesses called by the parties differ. The resolution of the differences between the experts depends on a scrutiny of their opinions; the evaluation of the testimony of lay witnesses of John’s functioning before, during and after he gave instructions for the making of the 2006 Will; and, on some documentary evidence. The most important of the documents are John’s handwritten instructions to his solicitors shortly before he executed the 2006 Will on proposed inter-vivos and testamentary dispositions of his property and a letter to the trustees of certain trusts over his property the subject of the inter-vivos dispositions written by John shortly after the execution of the Will. I will refer to the documents as ‘John’s letter[s] of instruction’.
As will be seen, I have reservations, to varying degrees, about the credibility and reliability of the testimony of some of the lay witnesses and John’s children in particular.
The letters of instructions accord in large degree with Fiona’s desired outcomes and she may have prompted John to write them. However, I am satisfied that even though John’s letters of instruction were written either shortly after, or during, discussions with Fiona about their contents, they were not dictated by her. The extent to which Fiona influenced John, if he had testamentary capacity, does not fall for resolution in these proceedings.
I am satisfied that John understood the nature and effect of the instructions and intended to give them. The letters of instruction manifest an understanding of the extent of John’s property and the competing claims on it. Indeed, they show that, whether for good reasons or bad, he was determined to disadvantage his daughter Shauna by denying her a degree of control equal to that of her siblings over family assets in order to preserve the Roche family fortune for his two granddaughters and future generations of the family.
I also accept the evidence of the solicitors Mr Garry Winter and Ms Nicole Perry on the content of their discussions with John about the 2006 Will. I accept their evidence notwithstanding my concern about the way in which Mr Winter and Ms Perry caused John’s general practitioner, Dr Bennett, to amend a report he had provided at their request on John’s testamentary capacity. I find that John’s statements in their discussions are indicative of testamentary capacity.
I accept as credible and generally reliable the evidence of the expert medical witnesses other than John’s general practitioner, Dr Bennett. I have placed more weight on their evidence about the nature of John’s dementia than on their ultimate opinion on his testamentary capacity because they necessarily do not enjoy my advantage in hearing and evaluating the testimony of lay witnesses about John’s level of functioning. The geriatricians who gave evidence, Dr Hecker, Dr Prowse and Professor Broe, agreed that John’s frontotemporal dementia diminished his executive planning capacity, and his power to concentrate. It also left him increasingly uninhibited. The preponderance of their evidence is to the effect that John’s condition may have made him more susceptible to internal impulses and external influences. However, their evidence, generally, is that the condition was not a disorder of the mind which would have necessarily perverted his sense of right, prevented him from reasoning or left him possessed of an insane delusion which caused him to dispose of the property other than he would have if his mind had been sound.
Dr Hecker’s opinion that John lacked testamentary capacity was primarily, but not exclusively, based on her concerns about John’s impulsiveness and susceptibility to external influences. However, the test for testamentary capacity is not as much concerned with the way in which a testator selects the beneficiaries of his or her bounty. Rather the test is more concerned with the testator’s capacity to comprehend the extent of his or her estate, the competing claims of those with a social expectation to a share of it and the practical legal effect of the disposition.
The combined force of the contents of the letters of instructions, the testimony of the solicitors, and the nature and aetiology of the frontotemporal dementia from which John suffered lead me to accept Professor Broe’s opinion that if John’s attention was drawn to the nature of the power of testamentary disposition, the contents of his estate and the competing claims on it in a structured setting, he had the capacity to comprehend them to the necessary degree. The process in which John engaged Mr Winter and Ms Perry for the purpose of giving instructions was such a structured setting. I have found, therefore, that John had testamentary capacity.
My reasons for so finding are set out below and are organised as follows:
Formal requirements
Testamentary capacity
The Roche family and its corporate entities
John’s living arrangements
Management of the farm – evidence of Mr Huw Evans
Observations of Leonardo Gallucci of John
Familial Dissension in 2005
Restructure implemented
Shauna informed of restructure
Execution of restructure
Comparison of the 1997 and 2006 Wills
Instructions for a new Will
The making of the 2006 Will
Ms Perry’s requests of Dr Bennett
Assessment of John’s demeanour in the making of the 2006 Will
Post Execution Conduct
John’s declining mental health and medical examinations
Ms Christison: John’s attendances at the office
Michael Shearer: John’s conduct of Board meetings
Raelene Harris: John’s close personal relationship
The testimony of Shauna Roche
Medical history taken from medical reports
Dr Hecker’s Report – 28 November 2014
Dr Prowse’s Reports
Professor Broe’s Report – June 2014 and October 2015
The disputed testimony of Dr Hecker
The concurrent testimony of the geriatricians
Knowledge and approval
Orders
Formal requirements
Section 8 of the Wills Act 1936 (SA) (the Wills Act) provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)it must be signed by the testator or by some other person in the testator’s presence and by the testator’s direction; and
(b)it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
The evidence of the solicitors Mr Gary Winter and Ms Nicola Perry who prepared the 2006 Will establishes that the 2006 Will was executed by John in their presence. Their evidence on that question is not challenged and no contrary evidence has been adduced. I find that the 2006 Will was executed in accordance with the formal requirements of the Wills Act. On the face of the 2006 Will it is plain that John intended the signature to give effect to the 2006 Will.
Testamentary capacity
In Banks v Goodfellow,[1] Cockburn CJ articulated the common law test for testamentary capacity as follows:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties ― that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[1] (1870) LR 5 QB 549 at 565.
In Thomas v Nash,[2] Doyle CJ cited the passage and continued:
[71]This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.
[2] (2010) 107 SASR 309 at 320.
As with other 19^th century common law principles governing the legal effect of mental illness, the statements in Banks v Goodfellow no longer reflect modern medical knowledge. It is now recognised that there are a broad range of cognitive, emotional and mental dysfunctions, the effects of which are difficult to identify precisely or delineate from the exercise of ones ‘natural faculties’ and the reasoning capacity of the ‘sound’ mind. Moreover, rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.
In Re Estate of Griffith (Griffith),[3] Kirby P adverted to this issue of legal policy as follows:
(6) In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: see Banks, above, at 560. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.
[3] (1995) 217 ALR 284 at 295.
In Banks v Goodfellow, Cockburn CJ explained that less than optimum mental capacity does not deny a person the power to make a testamentary disposition. Imperfections of memory caused by age or disease may still leave a sufficient understanding for the ordinary transactions of life including the testamentary disposition of property. The relevant question according to Cockburn CJ is:[4]
Was he capable of recollecting the property he was able to bequeath; the manner of distributing it, and the objects of his bounty?
[4] (1870) LR 5 QB 549 at 568.
In the matter of In the Will of Mary Wilson (Wilson),[5] Hood J stated the test as follows:
Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. If his brain is affected by delusions, so as to interfere with the disposal of his property, and to prevent him from doing what he otherwise would have done had his mind been sound, then he does not possess testamentary capacity, and the will is not a valid will.
[5] (1897) 23 VLR 197 at 199.
In Bailey v Bailey,[6] Isaacs J (with whom Duffy and Rich JJ agreed) stated the following propositions:
[6] (1924) 34 CLR 558 at 570.
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v Batt; Bremer v Freeman; Burnell v Corfield).
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v Green; Baker v Batt).
(3)The proponent’s duty is, in the first place, discharged by establishing a prima face case (Bremer v Freeman).
(4)A prima facie case is one which, having regard to the circumstances so far established by the proponent’s testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v Corfield; Baker v Batt; Barry v Butlin; Fulton v Andrew, and cases there cited).
(5)A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments (Swinburne on Wills, Part II., sec 5, quoted with approval by Kent C in Van Alst v Hunter).
(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v Butlin; Jones v Godrich; Wrench v Murray).
(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v Murray; Brogden v Brown; Durnell v Corfield; Symes v Green; Bama Soondari Debi v Tara Soondari Debi; Sajid Ali v Idab Ali; Jagrani Kunwar v Durga Prasad; Banks v Goodfellow; Harwood v Baker; Van Alst v Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v Murray; Brogden v Brown; Harwood v Baker; Banks v Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v Alderson; Baker v Batt; Barry v Butlin; Bur Singh v Uttam Singh).
(8)Once the proponent establishes a prima face case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v Freeman; Waring v Waring; Sutton v Sadler; Bama Soondari Debi v Tara Soondari Debi; Bates v Graves; Bur Singh v Uttam Singh).
(9)To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property (Bar Singh v Uttam Singh; Wingrove v Wingrove).
(10)The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue (Kinleside v Harrison).
(11)While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions (Durnell v Corfield).
(12)Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date (Perera v Perera, following Parker v Felgate; see also Griffin v Palmer and Barry v Butlin).
(citations omitted)

Having regard to the statement in the second proposition that the burden of proving the will lies on the party propounding it ‘during the whole case’ the use of the Latin phrase ‘onus probandi’ in item (8) should be understood to mean only an evidential onus. To that end, the word proof in proposition (9) means evidence, and in accordance with proposition (9), evidence not only of illness but that the illness affected the testator’s mental faculties. When an opponent of a grant adduces such evidence the propounder of the will must show more than a prima facie case and must persuade the Court that, notwithstanding the evidence adduced by the opponent, the testator was not affected by a mental illness so as to deprive him or her of the capacity to make a will. That was the understanding of Creswell J, in Symes v Green,[7] when he said:
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary that it was made by a person of competent understanding. But if there are circumstances and evidence which counter-balance that presumption the decree of the court must be against its validity, unless the evidence of the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.
[7] (1859) 1 Sw & Tr 401 at 402.
Dixon CJ, Webb and Kitto JJ in Worth v Clasohm[8] explained the onus which falls back on the person propounding a will after some evidence of a mental illness affecting capacity has been adduced as follows:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution …
[8] (1952) 86 CLR 439 at 453. See also Boreham v Prince Henry Hospital (1955) 29 ALJ 179.
In Griffith, Gleeson CJ (with whom Handley JA agreed) emphasised the gravity of a determination that a person did not have a sound disposing mind and made the important distinction between a testator with an antipathy, even an unreasonable one, towards a person who has a proper claim on his estate and a testamentary disposition which results from a disorder of the mind. Gleeson CJ said:[9]
Testamentary capacity is not reserved for people who are wise or fair or reasonable or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community but that does not make the will invalid.
That observations is, as will be seen, apposite to the circumstances of this case. On the other hand, Gleeson CJ recognised that a mental infirmity which denies testamentary capacity need not involve insane delusions.
[9] Re Estate of Griffith (1995) 217 ALR 284 at 291.
In Read v Carmody,[10] Powell JA (with whom Meagher and Stein JJA agreed) restated the Banks v Goodfellow principle as follows:
[The matters that the court is required to consider when determining whether the deceased had testamentary capacity] have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that ‘testamentary capacity’ encompasses the following concepts:
1that the testator — or testatrix — is aware, and appreciates the significance, of the act in law which he — or she — is about to embark upon;
2that the testator — or testatrix — is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he — or she — has a disposing power;
3that the testator — or testatrix — is aware of those or [sic] may reasonably be thought to have a claim upon his — or her — testamentary bounty, and the basis for, and nature of, the claims of such persons;
4that the testator — or testatrix — has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.
The necessary corollary of this is that, if, at the relevant time the testator — or testatrix — is found to suffer from a condition — whether ‘mental illness’ (or psychosis) in the strict sense or any other form of ‘mental disorder’ (including, but not limited to, deterioration in higher intellectual function or dementia) — which detrimentally affects his — or her — consciousness or sense of orientation, or has brought about disturbances to his — or her — intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator — or testatrix — will, more probably than not, be held to lack testamentary capacity.
[10] [1998] NSWCA 182 at 4-5.
The fourth requirement cited in the above passage, the capacity to evaluate and to discriminate between the respective claims, was explained in the following way by Windeyer J in Kozak v Berwecki:[11]
[42]Dr Peisah placed considerable emphasis on what in the instructions given to her for her first report, was said to be the fourth requirement for a valid will, namely the ability to evaluate and to discriminate between the respective claims of such persons ― the said requirement comes from Read v Carmody. It is in some sense just an amplification or restatement of the third requirement in Banks v Goodfellow namely that the deceased ‘shall be able to comprehend and appreciate the claims to which he ought to give effect.’ Such appreciation must involve evaluation and discrimination.
(citations omitted)
[11] [2008] NSWSC 39 at [42].
A similar exposition was given by White J in Gray v Hart:[12]
[12] [2012] NSWSC 1435 at [342]-[345].
[342]Counsel for Hrs Hart relied on a passage from the judgment of Powell JA in Read v Carmody, where his Honour, after setting out the four concepts referred to at [339] above, went on to say:
The necessary corollary of this is that, if, at the relevant time testator ― or testatrix ― is found to suffer from a condition ― whether ‘mental illness’ (or psychosis) in the strict sense or any other form of ‘mental disorder’ (including, but not limited to, deterioration in higher intellectual function or dementia) ― which detrimentally affects his ― or her ― consciousness or sense of orientation, or has brought about disturbances to his ― or her ― intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator ― or testatrix ― will, more probably than not, be held to lack testamentary capacity.
[343]As I observed in Manning v Huwes; Estate of Ludewig, Powell JA is not to be understood as saying that any mental disorder affecting higher intellectual functions, intelligence, cognition, thought content, thought processes or judgment will result prima facie in testamentary incapacity. The mental disorder must be such as to prevent the testator from satisfying the requirements drawn from Banks v Goodfellow. The point of the decision in Banks v Goodfellow was that it was only if the mental disorder influenced the capacity to make the will by affecting the ability to understand the nature of the act, the extent of the property, the identity of persons with claims on the estate and the ability to weigh those claims and discriminate between them, that the will-maker lacks testamentary capacity. In Banks v Goodfellow, Cockburn CJ also said (at 566):
It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause-namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on executors, ‘the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done’ (Williams on Executors, 6^th ed vol 1. P 37, n. x).
…
[345]The fact that Ms Harris suffered from a cognitive impairment cast the onus on Mrs Gray to show that Ms Harris had the necessary capacity to make the will. But the presence of a mental disorder that detrimentally affected her cognition could not of itself provide a basis for saying that it was more probable than not that she lacked testamentary capacity. Such a conclusion could only be drawn if there were an analysis of a statistically significant, and representative, sample of will-makers who had some mental disorder, and a determination of what proportion of the sample lacked testamentary capacity. Decided cases would not provide a representative sample. As Kirby P observed in Estate of Griffith, if any partial unsoundness of mind deprived a testator of testamentary capacity, the freedom of testamentary disposition would be substantially undermined.
(citations omitted)
The discussion of the Banks v Goodfellow test in the preceding decisions of the Supreme Court of New South Wales is, with respect, best understood as an attempt to state the test in contemporary language. It can never be known whether the requirement that the testator has a capacity to ‘evaluate and discriminate between’ competing claims elevates the Banks v Goodfellow standard for testamentary capacity. Neither the original formulation nor the more recent elaboration are precise. The words seek to formulate a legal test which balances the competing considerations discussed by Gleeson CJ and Kirby P in Griffith.
A testator may have testamentary capacity even if his or her cognitive functioning is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for that functioning. However on both the original Banks v Goodfellow formulation and its modern restatement, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.
It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes. A testamentary disposition is not invalidated if a testator with that capacity decides on a capricious and indeed random disposition.[13] However, the nature of the disposition, in fact made, and its underlying reasonableness may have some evidentiary affect. In the Estate of Stanley William Church,[14] White J explained:
[13] King v Hudson [2009] NSWSC 1013 at [51].
[14] [2012] NSWSC 1489 at [53].
[53]Counsel for Marjorie put to Dr Peisah that the concept of officiousness or inofficiousness had no place in a determination of testamentary capacity in Australia in the 21^st century. Her response was that, from a medical point of view, it was something that would be considered, but it was not for her to comment on the legal aspects. It is well settled that what is required for a person to have testamentary capacity will vary according to the complexity of the will and the officiousness or inofficiousness of the will. In Brown v McEnroe, Owen J said (at 138):
‘Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator’s bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide.’
[54]In Bailey v Bailey, Isaacs J said (at 570-571) that:
‘The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances …
As instances of such material circumstances may be mentioned:
(a)the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries …;
(b)the exclusion of persons naturally having a claim upon the testator …’ (Citation of authorities omitted.)
[55]These authorities were referred to with approval by Santow J (as his Honour then was) in Ridge v Rowden; Estate of Dowling; (Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). The principle expressed does not run counter to freedom of testation. It merely recognises that whether a person has the capacity to exercise the freedom can depend of what the particular will is to provide. As the High Court said in Gibbons v Wright (at 438):
‘… the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument …’
[56]I do not understand Windeyer J in Kozak v Berwecki to have suggested a different principle. As the concluding part of para [44] of his Honour’s judgment makes clear, his Honour did not consider the will in that case to be inofficious. In my opinion Dr Peisah was right in taking account of the inofficiousness of the will in her assessment of Stanley’s testamentary capacity.
(citations omitted)
A radical departure from long adhered to testamentary intention may also support an inference of incapacity at least in the absence of an adequate explanation.[15]
[15] The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [372]-[377].
Finally I mention, that, as Vickery J observed in Nicholson v Knaggs,[16] it is not necessary for those propounding a will to establish that the testator was capable of understanding every clause of the will and is legal effect. However, it must be shown that the testator understood that he or she was executing a will and the practical effect of its central clauses including the dispositions of property made.
[16] [2009] VSC 64 at [97].
The critical question in this case as will be seen when I turn to the medical evidence is whether the frontotemporal lobe mental impairment suffered by John was such as to deprive him of the capacity to appreciate, in the sense of understanding, the relative weights of the competing claims on his estate and to make a deliberative choice between them.
The Roche family and its corporate entities
John was born on 9 September 1924. His siblings were one brother, David Roche, and four sisters; Diana Frost, Judith Buckingham, Jennifer Reynolds, and Josephine Lepetit.
Between 1922 and 1928 John’s father, John David Keith Roche (JDK Roche), founded a group of companies that are referred to in the evidence as the EDC/ADC Group. The initialisation EDC derives from the trading name, Estates Development Company, under which the Roche companies operated in Perth, and ADC from the trading name, Adelaide Development Company, under which the Roche companies operated in Adelaide. The business of the companies of the EDC/ADC Group is residential and commercial property development and agribusiness.
John and his siblings were gifted, or inherited, shares in the companies of the EDC/ADC Group from JDK Roche.
>From about 1959, John managed the affairs of EDC/ADC Group. John and his brother, David, both held 25 percent of the shares of the EDC/ADC Group, and their four sisters held 12.5 percent each. However John exercised effective control over the EDC/ADC Group because he personally held classes of shares in the companies of the EDC/ADC Group which gave him determinative voting rights. John owned the majority of his shareholding in the EDC/ADC Group through Justin Pty Ltd (Justin).
John was the only one of his siblings who was engaged meaningfully in the management of the EDC/ADC Group. He was its executive chairman. In the 1980s John and his siblings fell out over the affairs of the EDC/ADC Group. John wished to maintain and accumulate the assets of the EDC/ADC Group but David and his siblings desired greater distributions of income and capital to shareholders. They claimed that John was managing the affairs of the EDC/ADC Group oppressively. Ultimately actions brought by them were settled and an agreement was reached whereby the shares of two of John’s sisters (Diana and Judith) were purchased indirectly by the remaining shareholders of the EDC/ADC Group. The resolution of the dispute was embodied in a Deed entitled ‘Deed with Remaining Family Members’ which was executed in 1990 (the DRFM Deed). The DRFM Deed provided that John controlled 50 percent of the votes with John’s remaining siblings in the group controlling the other 50 percent of the vote. The DRFM Deed contemplated that the business of the EDC/ADC Group would be wound down and that Justin would ultimately buy out its business interests.
John married twice. He had three daughters; Deborah, Fiona, and Shauna. Deborah was born in 1954, Fiona in 1955 and Shauna in 1958. His only grandchildren are Alex and Airlie, the twin daughters of Deborah and her husband Mark Hamilton (Mark).
From sometime early in the 1960’s until 2005, when John transferred his shares in Justin to a trust which benefitted his children, John and each of his children held approximately 25 per cent of the shares in Justin. John however controlled Justin through his holding of certain ‘governing director’ shares. Justin held shares either exclusively, or with John and/or one or more of his daughters, in subsidiary companies. Justin and those other corporate entities were referred to in the evidence as the Justin Group. The Justin Group was restructured in 2005 by a number of complex transactions which I will explain in greater detail below.
In 1991, Fiona starting working for the EDC/ADC Group. In around 1993 or 1994, Fiona became the managing director of the EDC Group and in 1995 of the ADC Group as well. At about that time, John retired as executive chairman but remained non‑executive chairman of the EDC/ADC Group.
From 1991, John and his three daughters were all directors of the companies of the Justin group. Initially, quarterly directors meetings were held but, by 2005, only one or two full meetings were held each year. John remained managing director and chairman of the Justin group until 2008 but its day-to-day management was undertaken by the management company of the EDC/ADC Group and, in effect, by Fiona.
John’s living arrangements

>From 1993, John lived in a renovated and refurbished coach house in North Adelaide. I will refer to it as the Coach House. That house and land had been subdivided from a larger block of land on which stands the substantial residence of Deborah and Mark. They purchased their house and land from John in 1991 at the Valuer-General’s valuation with the provision of vendor finance by John. The Coach House had a separate entrance, courtyard and car park.
From the time of John’s retirement as executive chairman of the EDC/ADC Group in 1995, until he lost his driver’s licence in August 2006, John routinely stayed at Southcote, a 800 acre shorthorn stud farm at Port Elliot, for three or four days over an extended weekend. A fulltime manager was employed to run Southcote with the assistance of a part-time farmhand and occasional contractors.
Deborah gave evidence that between 2004 and 2006 John engaged in general labouring tasks on the farm including the movement of calves, handing out feed and throwing hay from the ute. The testimony of the farm manager, Huw Evans, provides greater detail of John’s activities on the farm. I deal with it below.
In about March or April 2005 Huw Evans resigned from managing the farm. John took over some of the day to day running of Southcote. Fiona’s partner, Leonardo Gallucci, stayed with him at the farm and two farmhands were employed to work with them. John interviewed some local applicants for the manager’s position but none were satisfactory. The position was not filled until May 2005 after it was advertised more widely.
John lived simply when at Southcote, attending only to cleaning tasks and eating simple meals because he could not cook. After John lost his licence in August 2006, he went to Southcote less frequently.
When John was in Adelaide, Deborah saw him daily. He would visit her in the morning for a cup of tea and to read the papers before walking into the office.
During the week John generally walked from his home to the offices of the EDC/ADC Group in Pirie Street, arriving at around 11.00 am. He would stay until 2.00 pm and then walk around Adelaide and North Adelaide as he made his way home. John maintained this routine until a PEG tube was inserted in his stomach in 2009.
John employed a cleaning lady who attended at the Coach House several times a week. John made his own breakfast but no other meal.
When he was living at the Coach House, Deborah, or a person who worked for her, would cook his meals at night unless he went out. In the evening John watched the television news before going for another walk around the streets near his home.
Deborah explained that John did not attend to his personal finances. The payment of household and personal bills were managed by the accountant of the Justin Group. The accounts and bills would be kept there for him and he would approve payment. John maintained a cheque book for discretionary spending. John did his own shopping.
Deborah testified that John’s domestic and personal hygiene was good.
From 1995 until about 2009, John made two trips to Western Australia annually. On each occasion he stayed with Fiona for four to six weeks. They visited development projects and farms together. Each year John also travelled to the Royal Easter Show in Sydney and to Dubbo for the shorthorn cattle sales, usually with the manager of Southcote.
Shauna moved from Adelaide to Sydney in about the year 2000, and as a result her contact with John became intermittent.
Management of the farm – evidence of Mr Huw Evans
Shauna called Mr Huw Evans, who was the manager of Southcote between 1998 and 2005. He also attended to general farm duties. He was responsible for the care of the herd, fencing and cropping. He prepared the cattle for show and sale. He lived on the property. He worked between 8.00 am and 5.00 pm generally, but naturally enough in the management of the farm his hours varied. Mr Evans testified that John was at Southcote three or four days a week. John did some physical work but what he did was restricted because of his age. Mr Evans undertook the bulk of the physical work and on occasion was assisted by casual labourers. John’s involvement in the work of the farm varied from several hours to a whole day. I was impressed with the way in which Mr Evans gave his evidence. He was a credible and reliable witness. I accept his account of events.
Mr Evans described John as a jovial man who was a great storyteller particularly about past times but that he tended to repeat those stories. From as early as 1998 John might repeat the same story twice a week. Mr Evans never challenged John about that repetition.
In addition to the Southcote property at Port Elliot, John had a farm at Richmond Downs at Mount Compass. Mr Evans noticed that on some occasions when he worked on Richmond Downs John would ask him on his return at the end of the day where he had been, even though Mr Evans had told him the night before where he would be. Mr Evans noticed that level of forgetfulness on John’s part sometime in the 2000s but he could not specify a particular date. Mr Evans found it difficult to quantify how often John might forget information which Mr Evans had conveyed to him.
Mr Evans testified that John’s memory deteriorated progressively between 1998 and 2005. When asked whether he had ever discussed his observations of John’s failing memory with John, he answered ‘No, I don’t think it was my place. I respected John and I didn’t think it was my place. I’d consider it to be rude’.
Mr Evans also observed John’s lapses of concentration when driving as early as 1998. John became progressively worse. He would gesticulate whilst driving and swerve across the road. On occasions John failed to give way at the relevant signs. Mr Evans described one particular accident on an occasion between 2002 and 2004 when John drove his BMW across a T-junction and through a drain and returned to the other side of the road. On that occasion, John and Mr Evans were travelling to the South Australian Beef Field Days at Gulnare. On another rainy day when leaving the Adelaide Showgrounds and travelling north along Goodwood Road towards North Adelaide, John drove through red lights. After 2003, Mr Evans insisted on driving and John would allow him to drive for increasingly long parts of the journey.
Mr Evans testified that he made most of the decisions with respect to the farm management, but he would speak to John about them. John expressed an opinion on most issues but almost always was happy with Mr Evans’ management. Mr Evans would discuss with John more significant management decisions, such as appraising bulls and making decisions about which bull to purchase and at what price. Mr Evans did not give evidence about the soundness of John’s contributions. I take from his failure to make specific mention about the nature of discussions that John’s opinions and comments appeared at least apposite and reasonable to him.
Mr Evans was asked:[17]
Q.By the time you finished working in the farm, March 2005, was there anything else you noticed about John's memory.
A.Nothing more than what I've said really I don't think. Just that he was becoming a bit repetitive and forgetful I guess would be part of it as well.
Q.When you say forgetful what do you mean.
A.As in like if I told him what I was doing the previous day and he'd come up the farm looking for me, another occasion that happened quite often is I'd get accounts would be sent to our post office box in Victor Harbor which I would collect for the farm. I'd pass those accounts on to John and he would take them up to the office in Adelaide for payment. Sometimes I'd get phone calls, people chasing up money, the payment of these accounts, so I'd ring up the girls in the office, I can't recall their names now, and ask them about the account and they would say 'We haven't seen it, it's probably still in Mr Roche's briefcase, he may have forgotten to pass it on'. This happened on a few occasions.
[17] T1251.
In cross-examination Mr Evans agreed that he discussed the cost of engaging contractors to make hay or silage with John but that was not a major item of expenditure. There were also discussions about the price they might obtain for selling their stud shorthorn cattle. They discussed the reserve prices to put on their bulls.
On questions like the importation of cattle semen, John was actively involved in the discussions. Mr Evans testified:
A.Yeah John would engage and put a lot of input into what semen I would buy, but it was pretty much left up to my decision. That was what my job was, to be the stud manager, to improve the quality of the Southcote herd, so yeah, that was basically my decision but we would always discuss it.
Mr Evans thought that John continued to have ‘a grasp on pricing’, however he observed that the prices did not vary much over time.
Mr Evans described a particular occasion in 2004 when one of Southcote’s bulls fetched $20,000. Decisions were made as to the culling of the herd together with John.
In discussions about farm management after John had heard from Mr Evans he would say something like ‘Yep, that sounds good’.
From Mr Evans’ evidence it appears that John generally took his advice and gave approval for the matters recommended by Mr Evans.
Observations of Leonardo Gallucci of John
Leonardo Gallucci is the romantic partner of Fiona. He described John being relatively active when he was at Southcote. He testified that John would discuss farm matters with the manager Huw Evans in the morning.
He testified that in 2005 he stayed at the farm for three or four months after Huw Evans left. A search was made for a replacement farm manager. Mr Gallucci testified that he generally took instructions from John. Mr Gallucci testified that John taught him how to do jobs around the farm like fixing a fence. Mr Gallucci gave a reasonably detailed description of the tricky aspects of fixing farm fences on which he was instructed by John. He gave instructions on how to approach cows which were calving. He instructed Mr Gallucci on how to tag calves. He showed Mr Gallucci how to use the tractor with a bucket attached to maintain the tracks on the farm. Mr Gallucci was on the farm at the same time as Shauna. Some casual labour was engaged in that time. He described an argument between John and Shauna in which John became very agitated and red in the face.
Mr Gallucci described Shauna drawing a map of the farm. Mr Gallucci found a map helpful for his guidance in the time when he was there. However, he denied that John had ever become lost on the farm or forgotten the names of a particular paddock. Mr Gallucci testified that John had a particular channel which he liked to watch either for the news or for sports and didn’t change it very often.
When cross-examined about the map put on a notice board at Southcote Mr Gallucci was asked whether Shauna told him that it was for both his use and Johns. Mr Gallucci answered:
AShauna put this and I thought it was useful but I don’t remember if she told me that it was for me, and for John. For me, it was for me for sure.
Mr Gallucci was then cross-examined about a green folder which was on the farm at the time. I set out the cross-examination because it bears on an explanation which Shauna gave for taking photographs of the green folder in 2006. The cross-examination was as follows:
QYou remember that John used to have a paddock folder?
ANo, I don’t remember.
QDo you remember John having a green folder, a clipboard.
ANo.
QAnd he used to carry that clipboard around with him when he travelled around the farm?
ANo, I don’t remember.
QTurning to the fifth page, you see a picture of a green folder?
AYes.
QAnd it’s got ‘JJR’ written on it?
AYou are talking about the first page?
QThis page, the fifth page (INDICATES); sorry, the fifth page.
AYou said ‘the first page’?
QNo, I’m sorry, the fifth page.
AYes, I can see that one (INDICATES).
QThat’s the one; have you ever seen that folder before?
ANo.
QCan I ask you to turn to the next page? Do you ever remember John carrying around documents like these?
ANo, I don’t remember.
QWasn’t it the case that he used to carry this folder around with him?
ASorry?
QIsn’t it the case that he used to carry this folder around with him whenever he was at the farm?
AI don’t know, but I’ve never seen him carrying around with this.
Familial Dissension in 2005
On 10 June 1999, Price Waterhouse Coopers (PWC) was engaged by Fiona to provide advice on restructuring the Justin Group. The advice proposed the creation of a new trust with the beneficiaries being John’s immediate family and companies controlled by Justin. It recommended the establishment of a new company to act as a trustee which would purchase John’s shares in Justin. At that time shares in Justin were held in close to equal proportions by John, Fiona, Deborah and Shauna. It recommended that John provide vendor finance for the sale of the shares to the new trust and trustee. PWC made the point that the loan would be a significant asset in John’s hands. PWC cautioned that careful consideration should be given to the taxation implications. PWC identified as the main advantage of its proposed restructure its flexibility in dealing with profits and dividends generated by Justin and a particular group of companies in the EDC/ADC Group referred to as the CEFT Group. The member companies of the CEFT Group were Crawford Pty Ltd, Edgecliff Pty Ltd, Fermary Pty Ltd and Tralee Pty Ltd.
The proposed restructure was further refined in 2003. Fiona drafted an accompanying document on 9 August 2003 headed ‘Justin Restructure’. It was precipitated by the withdrawal of equity by several of John’s siblings. The Justin Group had also agreed to purchase Cheddington Pty Ltd and the property at Rosemount Avenue, Woolhara from the EDC/ADC group.
The objectives of the proposed restructure were to put a shareholding and management structure in place that was ‘commercial’, and which allowed investment by Deborah, Fiona, and Shauna independently of the Justin Group. It was intended to maintain the balance in voting power between the sisters. A further reason for the restructure was that Fiona and John were anxious that death duties may be reintroduced even though they had been abolished many years earlier.
In summary the benefits of the placement of John’s shares into a discretionary trust were to:
·    allow dividends to flow to the most appropriate shareholders;
·    allow the siblings to accumulate independent investment assets in a tax effective manner; and
·    guard against the possible introduction of death duties.
According to Fiona’s restructure document, Fiona saw the emotional response of her siblings as the main obstacle to the restructure. According to Fiona, John thought that the proposal was a good idea but Fiona doubted that she and her siblings were ready for the transition. Fiona was also concerned by the transaction costs and capital gains tax (CGT) implications.
In early 2005, Shauna contacted Fiona to arrange a meeting with her and John. The meeting was delayed because at the time one of the Justin Group companies, Clone Pty Ltd, was engaged in protracted litigation in the Supreme Court over the rights to gaming machine licences attached to one of its CBD properties on the termination of the lease over that property.
A meeting was eventually held on 6 March 2005 at the offices of the EDC/ADC Group in Pirie Street. At that meeting Shauna requested that:
·    there be an equalisation of the siblings’ shareholdings in Justin. (Shauna had a marginally smaller, 24.22% instead of 25%, shareholding than Deborah and Fiona for unknown historical reasons);
·    she be given an advance of $1 million to balance a loan of $800,000 provided to Deborah some years earlier;
·    she be given an advance of $400,000 to balance the gift she anticipated would be made of the Coach House to Deborah upon John’s death;
·    she be entrusted with the management of Southcote and that the barn be renovated as a residence for her so that she could care for John when he was on the farm;
·    she be allowed to live in the Rosemont residence in Woolhara in New South Wales so that she could rent out her Sydney apartment;
·    an apartment be purchased for her in Adelaide;
·    she be given funds so to make independent investments outside of the Justin Group Projects to provide her with financial security and independence; and
·    John and her siblings accord her greater respect in family dealings.
Fiona testified that at the 6 March 2005 meeting John told Shauna he did not need to be looked after. Fiona explained to Shauna that she could not consider the other issues until the Clone trial was finalised.
On the completion of the Clone trial, in May, a further meeting was held (the May 2005 meeting). The meeting was attended by Deborah, John and Shauna.   Fiona testified that John told Shauna that:
·    he was perfectly capable of managing the Southcote farm and did not want Shauna to be involved in it;
·    Shauna’s shares could be equalised but the mechanism by which to do so had to be carefully considered;
·    Shauna could not live in the Rosemont residence;
·    he had thought about equalising the loan to Deborah but did not have the funds to do so at that time;
·    Deborah and Mark would not be gifted the Coach House but that they had an option to purchase it;
·    he was prepared to renovate the barn at Southcote but that Shauna could not have exclusive use to it;
·    Shauna did not need a house in Adelaide; and
·    Shauna’s 25 per cent shareholding was sufficient financial security.
According to Fiona, a restructure of the Justin Group was also discussed at some length. Shauna was angry at the proposed restructure. She demanded that the loan to Deborah be equalised immediately by a loan to her of $1 million but that an equalising loan to Fiona be deferred. Shauna said that if her demands were not met, she would consider being bought out of the company. John responded angrily telling her ‘not to be so stupid’.
Shauna’s evidence of the meeting in May was very vague. Her answers about her time in Adelaide in the period between March and May were discursive and difficult to follow. Her evidence was that the discussions by and large concerned her wanting to help John on the farm. Shauna did testify of John’s forgetfulness at this time but it was difficult to gauge whether she was describing anything out of the ordinary, or whether John had simply changed his mind. Shauna described the meeting as tense but denied that she made any threats about extracting her capital interest. Shauna did not claim in her account of her discussions with John at this time that John did not actively participate in them, or that he only read from documents or that he spoke only when prompted to do so.
In an effort to reach consensus on a way forward, Fiona persuaded her siblings to participate in a facilitated meeting of the family to discuss their personal and business differences. For that purpose Fiona engaged the services of the facilitator Mr Lucio Dana. The facilitated meeting was held in early June 2005. Mr Dana first met each member of the family separately before holding a joint meeting. In her affidavit, Fiona testified that John did not attend the joint meeting. Shauna in her evidence-in-chief indicated that John may have been present for a short time in the morning. In cross-examination, she accepted that John was not at the joint meeting at all. The joint meeting came to an end after lunch on the second day. At that stage it had completely broken down and no progress had been made. It was agreed that there would be a second meeting on 27 June. That meeting was later cancelled.

Mr Dana’s Progress Report recorded separate conversations with family members and what occurred at the facilitated family meetings held on 10 and 11 June. The Progress Report identified issues raised as:
1.What do we need to do to be able to work more effectively and harmoniously together as a sibling team (ie a team building exercise or process?)
2.Do we really want to work together at all?
Mr Dana records John urging his daughters to work together to run the business. John’s comments acknowledge that it would be possible to divide up the business, but he warned that it would not be the best option. John suggested that Fiona and Deb might buy Shauna out at a discount. John’s recorded comments, which I accept to be accurate, demonstrate an understanding of the commercial consequences of Shauna’s position.
Mr Dana’s report attributed to Fiona the assertion that ‘Shauna has screamed that she will only stay in the business as long as Dad is alive’.
According to Mr Dana’s report, Shauna confided in him that she suspected that her siblings conspired against her and that they knew how to hurt her.
Mr Dana records Shauna questioning at the facilitation meeting whether the siblings could ‘genuinely work together given our history?’. She suggested that although they could learn to coexist, she did not think it was worth it. Shauna complained that she did not want to have a part in under-utilised and under-managed assets.
Shauna gave the following account of the facilitation meeting:[18]
[18] T1035-T1036.
A.I believe Lucio mentioned a large sum of money, $2 million, to give us all kind of breathing space. I don't think it was Dad who mentioned it first, I think it was Lucio.
Q.What was said about the $2 million.
A.Just so that we could have some independent - some breathing space from one another, that we weren't so interdependent.
Q.Was the topic of any one of you leaving the group discussed at that family facilitation meeting.
A.No, absolutely not, no. I did lose my temper on the way out, but that's about it.
Q.In what way was losing your temper relevant to that issue.
A.Not really but we had been talking about all these issues again, the farm, the million dollars, the shares, the, you know, in relation to when I was asked questions about what were my issues with the group I was concerned about long-term planning to do with Fiona like how long are you going to be doing this? Do you still want to do it?' I was concerned with 'What are we going to do about Alex and Airlie into the future? Are we going to have, you know, those sorts of things?' And then my own issues I was asked about in detail by Lucio and I made it clear with him and with them.
HIS HONOUR
Q.What did you make clear.
A.That by then I was impatient about this million dollars.
Q.I just want to know what you made clear to Lucio and the others at the meeting.
A.That I wanted to return to the farm to look after Dad and the farm. That I was becoming impatient about the million dollars for super because - that I was impatient. And I was concerned about Dad really and the future of our all being able to actually work together as opposed to, you know, just turn up at meetings. I expressed my concern about what was expected of us in terms of timing. I raised issues of how meetings and things were - by then I had done a sort of a course in company directorships and I was concerned about how meetings were being run and called and all of those sorts of things. So I raised those issues.
XN
Q.You said you got angry, do you now recall what you said at the end.
A.I was literally running out and I lost my temper and said you know, 'If we don't settle this sort of thing we're all going to end up in court, I'll see you in court when Dad's gone' or something ridiculous and over the top like that.
Q.Why do you say it was ridiculous and over the top.
A.Because it was just, I had lost my temper, it was a long day, Debbie had been pretty reduced [sic] about things.
Q.After that first family facilitation meeting there was a second day organised, you said, and that got cancelled but did you see your father before 27 June.
A.I don't recall whether I saw him in person or I spoke to him on the phone.
Q.You communicated with him.
A.Yes.
Q.How would you describe your communications with him.
A.I was frustrated and I think he was puzzled. I don't think he really remembered much of what had happened.
Q.That was based on what he said to you.
A.It certainly was based on what he said to me. When I mentioned the facilitation he would say 'What facilitation'. When I said, you know, we - you know, I said certain things and he replied and just indicated he didn't really remember.
On one view, the last answer in the above passage is to the effect that John had forgotten the facilitation meeting but, as I have earlier recorded, John was probably not at the meeting. In cross-examination, Shauna claimed that she had chosen her words poorly. She had intended to convey that John did not appear to have been informed about the facilitation meeting. Shauna’s testimony on this topic demonstrates her tendency to speak loosely which undermines the reliability of her testimony. More importantly, there is no clear account in Shauna’s testimony of any irrational or confused conversation or conduct by John at this time. She did not challenge the reliability of Mr Dana’s account of his conversations with John.
On 24 June after receiving a copy of Mr Dana’s notes, Shauna sent an email to Fiona in which she made many observations on the way in which John and her siblings conducted their affairs. Shauna did not comment at all on John’s cognitive functioning. Shauna also wrote in that email:
For the record I did not state that the business would not continue beyond Dad’s death as far as I am concerned (Lucio’s report – your statements). I said that if we did not address ‘my’ issues I’d ‘see you in court’ once Dad was not here to see his life’s work pulled to bits.
That comment implicitly acknowledges John’s ongoing understanding of the extent of his business empire and the importance he attached to its consolidation.
A meeting of the board of the Justin Group was held on Monday 27 June 2005 at the Coach House. Fiona testified that she typed speaking notes for John. Fiona also took a record of the meeting which she then typed and emailed to Shauna on 29 July 2005. The relevant parts of Fiona’s record of the meeting are set out below:
1. Family Facilitation Meetings
…
2. JJR response to issues raised by SR in facilitation meetings
i.     Equality
JJR confirmed that while he did seek to have ‘fairness’ in the manner in which he treated his daughters this did not amount to equality in all matters. He pointed out that he did not consider it inequitable to FR or SR if he paid for the school fees of either Airlie or Alex at Geelong which he would agree to do, if they chose to go there.
ii.    Shares in Justin – SR’s lower percentage.
JJR confirmed that he did not know why there was a difference and as far as he could remember it was not deliberate. It was probably an arithmetical mistake made by the Company Secretary at the time the shares were issued in the 1960s. He has asked FR to consider how these shareholdings might be equalised but that this required consideration of the tax consequences to the total group and should not result in significant tax consequences to the Group.
Action: Fr to consider how these shares might be equalised without significant tax impacts.
iii.     Equalisation of Loan – JJR to DAH
A discussion ensured over what actually occurred at the time that JJR loaned money to DAH to renovate […]. Recollections were not consistent so nothing was resolved in this.
JJR confirmed that it was his intention to equalise the loans but also advised that he was not in a position to do so at that point as he did not have the money to lend to both or even either Shauna or Fiona. The ‘equalisation’ SR sought was dependant on finding the money to make the loan without paying significant taxation.
The amount required to equalise the loan was considered given the time that had transpired from when DAH originally borrowed the money. SR had put forward the concept that the amount of the loan given to DAH should be at least increased by inflation. JJR agreed that this would be appropriate.
Action: FR to consider what and how equalisation loans could be made to FR and SR from JJR.
iv.     SR to do up and live at the Barn at Southcote.
The arrangement originally put forward by SR was not acceptable to JJR, Fr or DAH.
However, JJR recognised that the sharing of the family ‘beach house’ puts the greatest pressure on and within families. Given this he was prepared to consider a package:
·   The Barn is done up by Justin and the barn is thereafter used primarily by SR;
·   The main house is used by JJR and DAH primarily;
·   The upper floor of the Winery is done up by Justin and is used thereafter primarily by FR.
Under this arrangement each of the barn, the House and the Winery could be used by the other family members but only with the permission of the sister that was primarily responsible.
This would enable certainty for each of the family groups as to what was available in the high seasons etc. Each of DAH, FR and SR confirmed that they would be prepared to have other family members use the properties but the pressure of the school and university holidays again became an issue. FR confirmed that as school holidays would not be a problem for her as much as she would be prepared to lend the winery to SR if necessary so SR could have more of Antony’s family there in the Summer School holidays.
Structural maintenance would be undertaken by Justin on all the properties. Decoration would be the financial and physical responsibility of the sister responsible.
SR suggested that she might like the upper floor of the Winery rather than the Barn. FR advised that she was happy to swap if that is what SR wanted. SR was to consider what building she was most interested in.
SR raised the question of whether the House, Barn or Winery could be let for use by others. This was not something acceptable to JJR, DAH or FR. However, loaning the accommodation to good friends would be acceptable. It was acknowledged that while JJR was using the main house as his secondary residence it would be appropriate to get his agreement to the loan of any of the houses to friends before doing so.
SR raised the issue of using the Main House, barn and Winery as a Bed and Breakfast. This was not acceptable to JJR, DAH or FR.
Discussion proceeded on the opportunity to redevelop the 5 ‘ruins’ on the property and use these for Bed and Breakfast or short stay accommodation that SR might manage. FR advised that there might be an opportunity to get titles for these properties into the future and create sufficient value to in fact do them up for leasing/B&B. This is something to be considered later.
Action: The proposal to be considered by each family member and decisions made for the next meeting.
v.    Management of the Farm
JJR advised that while he was still alive he was going to manage the farm and that administration etc would be done through the office.
vi.     Rosemont Avenue, Woollahra
JJR advised that it was not acceptable for SR and Antony to use the Rosemont Ave house on a full time basis for two years while SR rented her Edgecliff Road apartment.
3. JJR – proposal for additional money
SH [sic] had raised the issue of wanting some money independently of the rest of the family group. With the exception of the $1million equalisation loan she requested from JJR, this was not part of her original series of requests to the family.
However, JJR advised that he was prepared to provide each of DAH, FR and SR with an additional $2million each, for investment by those family members outside the family group. However, at this point it is not clear how this funding might be made available. JJR has requested FR to review what options are available.
FR highlighted that this would amount to $8 million (including the parity loan) being taken out of the group.
Action: FR to consider what options are available.
4. Justin Restructure
FR advised that much of what was being discussed depended on taking the Justin restructure forward. She referred back to the arrangements that had been discussed in 2003. The capacity to take this forward depends on the outcome of the impact of ZZT of the Tax Act. This is the section where each of JJR’s, DAH’s, FR’s and SR’s shares in Justin could be deemed post CGT shares. If this has occurred then questions arise as to when and the transaction costs of under taking the restructure in the manner still being pursued.
A preliminary review of the ZZT issue would be known by the end of June however, any certainty would still depend on finalisation of June accounts.
An evaluation of the extent to which the statements attributed to John manifest a sound group of the assets structure and financial position of the Justin Group must take into account Fiona’s evidence about how she helped John prepare for that meeting. In her affidavit sworn on 8 November 2015 and received into evidence, Fiona deposed that, in consultation with John, she typed notes to assist him conduct the meeting of 27 June 2005.[19] Those notes are in dot point form and contain a number of headings such as ‘equity’, ‘respect’, and ‘commitment to the family’. One of the headings is ‘My Position’, the first dot point under that heading reads:
I have not worked all my life only for my Children. I am interested in my grandchildren and their children. To that extent I consider that when I am gone you are the guardians for the future generations – I am not interested in seeing the inheritance squandered in your generation.
Another dot point reads:
In order to achieve this I have decided:
·That my interest in Justin and other assets will now go into a trust of some sort with each of you or your interests as beneficiaries;
·In the event that any family member wants to be bought out of the family group that my 25 per cent share will be available to help fund this and all of it will remain in the Family Business.
[19] Paragraph [200] of the affidavit of Fiona Roche dated 8 November 2015.
The notes also express a general intention to make $2 million available to Shauna (and the other sisters) for personal investments after Fiona considered the tax implications. The notes state John’s position that he does not want the house in Sydney used by Shauna as her general residence. The notes discuss Shauna’s interest in managing the farm Southcote and to some extent her wanting exclusive use of the farm. In response, the notes make the point that the farm is a Justin Group asset and that Fiona as manager was the ultimate decision maker about its disposition. It also expresses a desire not to be ‘bossed daily about what calls to make or what food I need to eat’. The notes read:
The option I support is:
·Deb takes on the right to the main house into the future;
·Part of the winery will be done up for Fiona;
·The barn will be done up for Shauna.
The note ends with these lines:
I believe this covers everything I wanted to say.
Now move on to other agenda items.
Fiona gave this evidence about the detailed nature of the notes she prepared for John:[20]
[20] T240-T243.
Q.Isn't this an example of what he was required to have in order to function at a formal meeting by June 2005.
A.No.
Q.Wasn't the purpose of this so that he could attend the family meeting with you and your sisters and read out what you considered to be his position.
A.No.
...
Q.Looking at p.169, could I ask you look at the last two lines; why did you type the last two lines.
A.Because I suspect that Dad said when we were going through this process.
Q.'I believe this covers everything I wanted to say. Now I move on to other agenda items'.
A.Yes.
Q.Wasn't it the case that your father had become so forgetful by June 2005, you needed to tell him in your notes that it was the end of his speech and it was time to move on to other agenda items.
A.Well, there are two things you're saying there, one is that he gave this as a speech, which is not correct. He went through these matters, he didn't read them out from this, he just talked to them, and the other thing is that he had to remember this sort of thing at the end of a speech and, no, I just took it down when he said it.
Q.But surely on your evidence he didn't need to be reminded that at the end of his speech it was time to move on to the other agenda items.
A.It wasn't a speech and he only talked to these as notes and he didn't need reminding to move on to the other agenda items. The agenda was before him, the board meeting packet was before him, it was a document that big (INDICATES) and he couldn't but remember it.
...
HIS HONOUR
Q.Can I just ask you about that: you go and you're having a discussion with your father; how long before the meeting of 27 June.
A.The day before.
Q.The day before; and there is a discussion which you start taking notes of.
A.No, there was a discussion that he started taking notes of.
...
Q.Yes, and so your father started to take notes of the discussion -
A.Yes.
Q.- that was designed to work a way through the family conflicts.
A.Yes.
Q.And then you offered to type the notes down -
A.Yes.
Q.- with a view of recording the way forward that you and your father decided upon.
A.Yes.
Q.You didn't think then you were making speaking notes.
A.No.
Q.And the notes at tab 34 are written as if this is the position that your father had decided to take in the course of your discussions about the way forward.
A.That's correct.
Q.So then tell me what it was that John said that resulted in you typing in the last two lines of that document.
A.I suspect that he said 'Well -', you know, '- we've gone through this a number of times so this is the end of it' and then, frankly, I don't remember, I'm recreating, I'm recreating.
Q.Yes; I've got to ask you about that, you started saying 'I suspect'. Do you have any recollection that you can depose to now as to what your father said which led you to type in those two lines.
A.No, I can't.
Q.Well, the effect of what Mr Ower said to you, put to you, and which may be important is this: that those two lines were written as a prompt to your father to be used in the course of the meeting. That is, that you typed in those two lines to serve as a prompt to your father for use in that meeting. What do you say to that.
A.I don't believe that that is what occurred because he wouldn't have needed that. He had a document that thick (INDICATES) of the board papers for that meeting.
Despite those answers, I find that Fiona believed that it was necessary, or at least desirable, to provide structure and prompts to guide John through the meeting. The last note ‘now move onto other agenda items’ may be indicative of Fiona’s need to closely control matters or the need to keep John’s mind from wandering or both. Be that as it may, there are many people, including those with very high levels of cognitive functioning, who need to be kept on point. As will be seen, John was liable to be easily distracted because of his frontotemporal dementia. Even though I do not accept Fiona’s explanation for typing the last few lines of the aide-memoire, I find that Fiona did not include them because she believed that John suffered substantial cognitive deficits.

Dr Prowse identified the primary deficits to be in judgment making and giving close and protracted attention to matters. Dr Prowse connected those deficits to John’s driving impairment.
Professor Broe on the other hand attributed John’s bad driving to impulsivity. Professor Broe explained that John did not inhibit his impulses to break traffic rules because there were no constraints on him. Professor Broe continued:
He is just reactive to whatever happens in his environment. This just reinforces the problems in terms of his behaviour and attention. I think they are his two major problems when he does not have – when he is not acting in a situation which is constraining him because it is an old well learnt situation where he knows exactly what is going to happen with the people. Anything can happen when you’re driving a car. I therefore did not think that this was instructive in determining whether or not he could handle an estate.
Professor Broe then elaborated on the filing cabinet analogy drawn in his report as follows:
The filing cabinet I used to explain, is impairment that could be executive; to be anxious or post-traumatic stress disorder or overloaded or have a disease that is affecting the frontal lobe dementia meaning that you do not pay attention to where you locate your memories when you file them and just throw them in the filing cabinet, but you are actually consolidating those memories and putting them into a filing cabinet. And I did explain that this is quite different to Alzheimer's disease where if you do manage the memories into the filing cabinet they disintegrate very rapidly. They are not going to be there when you need them. The problem with frontal lobe dementia, they can't file them, they are filed hickety pickety. The important thing that I felt more particularly with Mr Roche was that he had the ability to file salient - new information that was salient to his long-term objectives in life which is, from memory, about his company, he had the ability to file them with his long-term memories. They were there, he didn't have to file them anywhere. They went in there naturally. I think he knew.
Each of the experts summarised the reasons for their conclusions on the question of testamentary capacity as follows:
DR HECKER:    Well, I think Mr Roche had, clearly, a progressive neurological condition. That is fairly clear evidence for that and that the major deficits were in the frontal and executive area of brain function which is a critical area for complex planning and decision-making and judgment. He did have also a number of behavioural changes which I think had a significant bearing on this, including reduced initiative, motivation, disinhibition, which was clear to me in some of the other independent information from other meetings suggested that too; impulsivity which was quite marked and it had an impact on his behaviour and complete lack of insight into his health issues, but also the consequences of them. He had no appreciation of the issues relating to his road safety. That was discussed with him after. Unfortunately, I didn't assess him at the time that he did the more complex new will. At the previous time when I did assess him in August, either he had no understanding or recall of the planned changes which were already underway then or he chose not to tell me, which probably wasn't very insightful because it was significant in relation to his assessment, in his ability to make those changes.
… the major issue is whether he had the ability to put together all the complex information that was required to make appropriate judgments and decisions based on being able to manipulate that information. I don’t think he had higher function to be able to do that and I don’t believe, based on a lot of the information I had, he had the initiative there that would predominantly come from him and I don’t think we pretty much understand that he did understand what those documents were about in that during the testing and the lawyers’ notes at the time all those documents were done, he was just asked ‘Do you agree?’ ‘Do you understand?’ and there was a ‘yes’ answer but that’s not he never asked independently to explain what was in those documents and what the implications of that was. So we don’t know from the information given whether he could or could not do that.
DR PROWSE: … And as we discussed I think he - it is unlikely that he didn't understand his assets in the general nature of making a will. The question is really related to how much was this his free form of judgment of what he wanted to do? I think there is not any adequate document to be certain about that. Also, the question of what, you know, which parties you should take into account in making his will, and Dr Bennett, his GP, was the only person that saw him on that day; that, really, there is no documentation of the discussion, of the extent to which he explored any of those questions and it seemed to me that we didn't have contemporaneous evidence of such a complex matter that would have been important and this is in the setting of statements over the previous several years of gradual loss of function in his business and the affairs have been taken over by others and lack of contribution to discussion. So they were the things that I was particularly struck by.
On the other hand, I thought there was evidence that by that time he was - there was definite impairment. It was clearly not as apparent as subsequent events shown, but my experience with frontal temporal lobe dementia, that sort of stage, around the time of the identification of the problem, it would be quite difficult for people to be certain of the illness that is present. I think that was the case with the doctor that we have here.
So my final opinion at the time and I guess without opportunity to fully consider the matters that we talked about the adjournment, my feeling at the time was that there was enough evidence to say that Mr Roche lacked capacity.
PROFESSOR BROE:…[John’s] memory was intact and he was able to normalise his behaviour and to use his intact structure memory in dealing with business and wills. I believe he understood the documentation that he has written the role of the trusts, why they were set up, what they did, how much money they had in them etc. I believe all that was written out in the document, four pages. So I do think if that is as I have put it that he had testamentary capacity, they are my reasons.
…
I am mainly influenced by the documents in his own handwriting. As [Dr Hecker] said, I think it is really important to know the circumstances in which he wrote those but there is a bit of a catch 22 there. Unless someone was standing over him when he wrote the four page document on 28 March 2006, that is a very well written document, it is empathic, it is insightful, it understands what is going on in the family dynamics, it is very focussed on why he wants to change the will. Its knowledge base is good. It shows none of those deficits that I have been discussing like impulsiveness and disinhibition. It is a beautifully written document actually. Unless he had someone there dictating it to him it does indicate that he had, as we discussed, memory. He had a very good memory. If anyone had influenced him in the days before he was remembering in relatively short term, not long-term memory, he was remembering over a day or more, I don't know what the theory is, whether he was influenced in doing that and able to come up with such a document unless someone was there in the room. My belief is that document is a very impressive document which indicates that he was able to do the things that we believe are necessary to make a will in a test and have testamentary capacity. He was able to do the things. So he was able to discriminate between the respective strengths of the claims of his relatives and friends. He also was able to, in the documentation I have read, been able to say that his previous wives had no claim on his estate. He was able to assess whether Raelene had a claim on the estate and counter that. He was able to understand Shawna's [sic] claims on the estate and take measures for some of those. The short written document that he wrote on 1 [February 2006] very to the point. It is a dot point document. It was followed up in terms of what happened in the will.
…
So they are the three documents that I have paid a fair amount of attention to. I worked the other way to what I think [Dr Hecker] has worked. In other words, I took it that these were real documents that he wrote and then how can one explain a man who had all the deficits I agree that Jane found could do such a thing. I have explained that by saying that the structure and the memory were intact and he was able to normalise his behaviour and to use his intact structure memory in dealing with business and wills. I believe he understood in the documentation that he has written the role of the trusts, why they were set up, what they did, how much money they had in them. I believe all that was written out in the document, four pages. Okay, so I do think if that is as I have put it, that he had testamentary capacity. They are my reasons.
HIS HONOUR:      If it were to be shown that those documents were based on other documents prepared by others that he might have adapted which contain the salient points of those documents, how would that affect your opinion?
...
PROFESSOR BROE:    If it was above and beyond those sort of roles and it was written out for him, I would still have a problem in understanding how he could have remembered that if it wasn't also sitting in front of him.
HIS HONOUR:    … If he had documentation with the salient features in front of him when he wrote those things, if he did how would that affect you?
PROFESSOR BROE:    It would alter my opinion, yes. It would make it less plausible.
Counsel for Shauna asked the doctors about the significance of the expected and actual progression of John’s mental deterioration between 2000 and 2005/6.
Dr Hecker’s response was:
[Dr Prowse] said things tend to follow a fixed course but they can actually become more rapidly declining and then certainly are on the assessment of tools, like the mini mental, but that is a different thing from what is happening in the brain pathology which we obviously can’t see during someone’s life. From the point of view on how they do in testing they often pick up on the speed of decline as the disease progresses. … We’re not very good ones [sic] picking up his problems because it was predominantly frontal and executive and even with the tools and behavioural, so even with the tools you don’t necessarily see abnormality.
Dr Prowse’s evidence was that the rate of decline is fairly steady in the individual case. Professor Broe generally agreed, however he continued:
I don’t think there is very strong correlation between patients so that you can have people who decline over 10, 20 years or so. I have looked after such patients and people who decline very rapidly and that is particularly the case with someone with motor neurone disease. So I don’t think one can sort of say it has been going since 2000, therefore he should have reached this stage by 2005. It is unpredictable.
The doctors were also questioned on the weight they placed on John’s mental state test scores. Dr Hecker’s opinion was that tests of cognitive function were useful in determining testamentary capacity. Dr Hecker referred to John’s poor ability to draw a clock in 2005-2006. Dr Hecker’s view was that the deficits shown by the mental tests were in planning and judgment and not attention. Dr Hecker considered that the decline in the performance measured by the neuropsychologist Dr Field told strongly against testamentary capacity.
Dr Prowse did not place much weight on brief and superficial clinical screening tests. He put much more weight on the neuropsychological testing because it takes several hours, examines a large number of domains and tests executive function. In Dr Prowse’s view Dr Field’s reports showed that on rigorous testing there was very early, slightly patchy results in the first test but a year later definite problems support a diagnosis of mild cognitive impairment. By the third test, much more severe deficits in executive functioning were identified such that Dr Field diagnosed early dementia.
Professor Broe did not rely greatly on mental state tests to determine testamentary capacity. He explained that the poorly designed clock face was unusual in frontotemporal dementia. In Professor Broe’s opinion evidence of actual functioning was more determinative:
I don’t think we can go on the fact that he didn’t know the date when he was seen in Sydney – by one year and the clock face drawing. The general overall impression was of a very mild early frontal impairment and in fact if we gave scores, his score of the frontal Assessment Battery in Sydney was 15 out of18, so he’s back to where it started in 2003. So I don’t think the objective results are all that helpful and particularly I think it is more observation not by doctors but what is written and the documentation, his handwriting and by other people.
Dr Prowse agreed that history is the most important element in assessing cognitive functioning:
I concur completely with the standard teaching in this area which is that history is all-important, particularly as it relates to the time course of illness which you can’t get any other way and it one of the most important things in trying to establish a diagnosis on this type of illness and many people have one, two clinical visits in their practice of a person with dementia and don’t see them again. I think so of us tend to see people a little more often – Dr Hecker and I might be in this category - therefore one has the opportunity to see people repeatedly and there are some advantages in seeing people not too closely because you can see the changes more easily.
We have talked about the fact that testing can be discordant from the account of the family and can go in both directions, so if that’s unexpected one has to try and explain why this person seems to have such troubles perceived by the family and yet you seem to find them cognitively normal.
Dr Hecker emphasised the deficits in John’s deficits in manipulating information and executive decision making:
I think he demonstrated both short-term and long-term memory impairment but I still think that the thing that’s important is the ability to manipulate information and I don’t think he had that and so while he may have been able to hold it together in a kind of setting of superficially managing, I don’t believe that the higher brain power behind the thinking and the judgment and the decision-making was there.
Professor Broe disagreed:
The frontal lobes make up half the brain. There are an enormous amount of networks within the frontal lobes, they can be involved independently or totally, when we talk about executive function, we are talking about a total prefrontal network or multiple different minor networks within the frontal lobes. I believe that this man had an impairment in terms of behavioural control. I do not think he had any other major impairments. So it is my opinion that he could well have written those documents. I have taken it the other way round not that he couldn’t have written them because of the evidence that was given.
Professor Broe did not consider that there was evidence that rigid thinking affected John’s testamentary capacity. He testified:
I have particularly made a note in my notes that he did not show rigidity and inflexibility according to relatives and according to what I’ve read. This was not a feature of his behavioural disturbance. His behavioural disturbance was the opposite: it was disinhibition, hyperreactivity to situations, it wasn’t rigidity, refusing to look at other alternatives. Theoretically, it’s quite possible that someone with frontal lobe dementia would have those behaviours, I didn’t see Mr Roche having them.
Dr Prowse agreed with that view.
Dr Hecker took a different view:
I think his ability to look at that comment or that particular, you know, event in relation to his whole past instead of just reacting to it is definitely going to be impaired. So his ability to take his whole background life and, you know, aims and whatever and events from the past, behaviours from the past and put that in context with this recent thing and work out a strategy, that will be impaired and there’s a likelihood of making an impulsive decision, albeit it was maybe two weeks later, it’s definitely not as likely to be as well thought out and considered over a lifetime of what his wishes and his behaviour had been.
The doctors were asked for their views on whether:
·the meeting on 27 June 2005;
·the letter of instructions of 1 February;
·the letter of instruction of 28 March;
supported a finding of testamentary capacity.
As noted above, Professor Broe considered that the letters of instruction were strong evidence of John’s testamentary capacity:
PROFESSOR BROE: …. I am mainly influenced by the documents in his own handwriting. As [Dr Hecker] said, I think it is really important to know the circumstances in which he wrote those but there is a bit of a catch 22 there. Unless someone was standing over him when he wrote the four page document on 28 March 2006, that is a very well written document, it is empathic, it is insightful, it understands what is going on in the family dynamics, it is very focussed on why he wants to change the will. Its knowledge base is good. It shows none of those deficits that I have been discussing like impulsiveness and disinhibition. It is a beautifully written document actually. Unless he had someone there dictating it to him it does indicate that he had, as we discussed, memory. He had a very good memory. If anyone had influenced him in the days before he was remembering in relatively short term, not long-term memory, he was remembering over a day or more, I don’t know what the theory is, whether he was influenced in doing that and able to come up with such a document unless someone was there in the room. My belief is that document is a very impressive document which indicates that he was able to do the things that we believe are necessary to make a will in a test and have testamentary capacity. He was able to do the things. So he was able to discriminate between the respective strengths of the claims of his relatives and friends. He also was able to, in the documentation I have read, been able to say that his previous wives had no claim on his estate. He was able to assess whether Raelene had a claim on the estate and counter that. He was able to understand Shawna’s [sic] claims on the estate and take measure for some of those. The short written document that he wrote on [1 February 2006] was very to the point. It is a dot point document. It was followed up in terms of what happened in the will.
…
So they are the three documents that I have paid a fair amount of attention to. I worked the other way to what I think [Dr Hecker] has worked. In other words, I took it that these were real documents that he wrote and then how can one explain a man who had all the deficits I agree that Jane found could do such a thing. I have explained that by saying that the structure and the memory were intact and he was able to normalise his behaviour and to use his intact structure memory in dealing with business and wills. I believe he understood in the documentation that he has written the role of the trusts, why they were set up, what they did, how much money they had in them. I believe all that was written out in the document, four pages. Okay so I do think if that is as I have put it, that he had testamentary capacity. They are my reasons.

Professor Broe also expressed the opinion, that Dr Prowse accepted, that if John wrote the letters of instruction freely and independently that fact favoured a finding of testamentary capacity:
DR PROWSE:     I think I agree with my colleagues that I think they are significant. There’s clearly uncertainty as to how much they were generated freely and independently by Mr Roche, you know, and if they were then, you know, that would certainly sway me in the direction of thinking that he was more likely to have testamentary capacity slightly earlier when he made his will, if he didn’t, you know, I think we have heard from Professor Broe that it would tend to sway one in the other direction.
…
HIS HONOUR:    I think I will ask that a little bit differently. Given the clinical evidence, Dr Hecker’s observations, the neuropsychological evidence, the testing, given those things, would you have expected Mr Roche to have the capacity to prepare a document like either of those documents, and I’m not asking you to speculate there. I mean if it’s the case he may have or may not have and we just can’t extrapolate say so, but equally if it’s a surprising degree of capacity or cognitive capacity, tell me that.
DR PROWSE:   When I was first shown these documents I did think that it was surprising that, you know, they were as they seem.
Professor Broe disagreed with that last answer given by Dr Prowse expressing the opinion that John’s frontotemporal dementia was not inconsistent with a capacity to write the letters of instructions.
Dr Hecker could not reconcile her clinical assessment with a capacity on John’s part to write the letters of instruction ‘completely independently’ but accepted that, if he had, that fact ‘argued’ for him to have a greater capacity than she had assessed:
DR HECKER: I would find it hard to say that perhaps what this impinges on is those two handwritten letters by him. You know, whether they were completely independently written. I think that’s quite a major point. If they were I think that argues for him having had more ability than he certainly portrayed with my assessment of him and at the neuropsychological assessment. So I can’t really reconcile those two things.
HIS HONOUR: Another way of putting that is this: if it was shown that he has written those two documents independently, substantially independently, that would be inconsistent with your opinion, that would tend to contradict your opinion?
DR HECKER: Yeah, well it tends – it may impact on more capacity than I believe. It contradicts that he performed on all of the independent objective testing that was done, all at the appointments.
HIS HONOUR: As a result of those testings, in itself, is that evidence that he had some level of assistance in preparing those documents?
DR HECKER: I’m just saying that they don’t – I don’t think they reconcile. I’ll leave it to you to make decisions about what that means but, you know.
The geriatricians were all also of the opinion that if John engaged in the discussions described by Ms Perry set as sound in paragraphs [32] and [34] of the assumptions the Executors had asked the geriatricians to make, it was likely that he had testamentary capacity.
In particular Dr Hecker’s opinion was:
Yes, I mean if that is all exactly what happened without prompting, I mean spontaneous initiative to those points rather than just a ‘yes’ answer, that would support much more strongly that he had capacity.
I find that John suffered a behavioural variant frontotemporal dementia. I accept Professor Broe’s description of that condition. I find that John’s symptoms included impulsivity, a reduced attention span and increased forgetfulness. I find that the executive functioning capacity of his mind was diminished by those symptoms.
However, I find that in 2006 John’s frontotemporal dementia did not substantially compromise his cognitive capacity, when his mind was focussed, to comprehend the nature of his business interests, to understand issues which fell to be decided and to deliberate, albeit not as well as he once had, on them.
I find that John’s clinical presentation to Dr Hecker was affected by his reluctance to acknowledge his developing illness, his distaste of being subjected to an examination of his mental state, and possibly a little sadness caused by some insight into what lay ahead. On the other hand, in the more familiar and comforting surroundings of boardrooms and solicitor’s offices, when his attention was focussed on the product of his successful business career, he was more positive and active in his interactions.
I prefer the evidence of Professor Broe that John’s frontotemporal dementia was not inconsistent with a capacity to write the letters of instruction and to engage in the making of the 2006 Will in the way described by Mr Winter, and Ms Perry. That assessment of the expert evidence in turn supports the findings I have made about how John came to write the letters and about his discussions with his solicitors. Once it is accepted that John wrote the letters, albeit after and in the course of discussing their subject matter with Fiona, and engaged in the discussions with his solicitors, the preponderance of the medial evidence is that John had testamentary capacity.
I find that in the course of his discussions with Mr Winter and Ms Perry in which his attention was drawn to:
·the contents of his estate;
·the competing claims of his daughter and granddaughters to his estate;
·whether assets should be left to his issue, or others, directly, or placed in trust and whether to do so by testamentary or inter-vivos dispositions; and
·the testamentary trusts into which different assets might be placed, the person who would be executors or trustees depending on various contingencies;
John had the capacity to understand the nature and extent of his estate, to appreciate the relative weight of the competing claims on it and to make a deliberate choice between them. I find that John had testamentary capacity when he made the 2006 Will.
Knowledge and approval
In Veall v Veall,[47] the Victorian Court of Appeal summarised the principles relating to the requirement that a testator know and approve the contents of his or her will at as follows:[48]
[47] [2015] VSCA 60.
[48] [2015] VSCA 60 at [169]-[173].
[169]Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
[170]The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will’s legitimacy.
[171]In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:
(1)     The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
(2)     This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3)     The proponent’s duty is, in the first place, discharged by establishing a prima facie case.
…
[173]Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’’. ‘Testamentary capacity’ and ‘knowledge and approval’ are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:
[I]t 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.
(citations omitted)
The Court then referred to matters which were capable of raising a suspicion including:
·the involvement of a beneficiary in the preparation of the will;
·a radical departure from previous wills;
·changing a will to advantage a person who has influence over the testator;
·feebleness of mind.
The Court continued:[49]
[179]It is the testator’s understanding that is decisive: the issue to be determined is whether the testator knew and approved the contents of the will. Sufficiency of evidence will depend upon the circumstances of the case. In Tobin v Ezekiel Meagher JA put it as follows:
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: Barry v Butlin …; Gregson v Taylor ...; Re Fenwick ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye 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: Fulton v Andrew ...; Tyrrell v Painton ... 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: Tyrrell v Painton …; Nock v Austin …; Fuller v Strum …; Dore v Billinghurst.
(citations omitted)
[49] [2015] VSCA 60 at [179]
On my finding that John had testamentary capacity, the evidence of Mr Winter and Ms Perry which I have accepted establishes the requirements of knowledge and approval. It is therefore not necessary to determine whether the circumstances of Fiona’s involvement in the making of the 2006 Will, the changes it affected to the 1997 Will and John’s frontotemporal dementia sufficiently raise a suspicion to rebut the presumption which flows from due execution.
Orders
·The plaintiff’s application for revocation of the probate granted out of this Honourable Court in respect of the last will and testament of John Justin Roche dated 16 February 2006 is dismissed.
·There be a grant of probate in solemn form of the last will and testament of John Justin Roche dated 16 February 2006.