Shorten v Shorten - [2001] NSWSC 100

No judgment structure available for this case.

CITATION: Shorten v Shorten [2001] NSWSC 100

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 108772/99

HEARING DATE(S): 19/02/2001 - 27/02/2001

JUDGMENT DATE:
3 April 2001

PARTIES :

Stanley Alexander Shorten v Noel William Shorten

JUDGMENT OF: Foster AJ at 1

COUNSEL : M. Bradford - Plaintiff
P. Hallen SC - Defendant

SOLICITORS: Messrs Duncan MacLean, Tamworth - Plaintiff
Messrs Harris Wheeler, Newcastle - Defendant

CATCHWORDS: Plaintiffs sought order that Probate be granted in solemn form to them as executors - Defendant filed Caveat against making grant of Probate - Question of deceased's testamentary capacity.

LEGISLATION CITED: The Wills, Probate & Administration Act 1898

CASES CITED: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705.
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942-43) 66 CLR 295
Worth v Clasohm & Anor (1953) 86 CLR 439
The Estate of Ethel Gertrude Griffith Deceased; Easter v Griffith & Ors (unreported Court of Appeal, 7 June 1995)
Harwood v Baker (1840) 13 ER 117.

DECISION: Paragraphs 119, 120 and 121.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

FOSTER AJ
TUESDAY, 3 APRIL, 2001

108772/99 - Stanley Alexander SHORTEN - v - Noel William SHORTEN

JUDGMENT

1 HIS HONOUR: By their statement of claim the plaintiffs, Stanley Alexander Shorten and Kevin John Shorten sought an order that Probate of the Will of Florence Minnie Shorten (the deceased), who died on 6 February 1999, be granted in solemn form to them as the executors named therein. The defendant, Noel William Shorten had filed a Caveat against the making of a Grant of Probate in respect of the said Will. By his defence, the defendant denies that the Will was the valid Will of the deceased, alleging that, as at 25 January 1996, the date of its execution, the deceased lacked testamentary capacity, being not of sound mind, memory and understanding and further that she did not know and approve of its contents

2 By his cross-claim the defendant sought an order that Probate in solemn form of a previous Will of the deceased dated 22 march 1979 be granted to him. By the defence to cross-claim, it was conceded that, if the plaintiffs failed to obtain Probate of the Will of 25 January 1996, then the 1979 Will should be admitted to Probate, there being no contest that it was a valid testamentary document.

3 Since the commencement of the proceedings the plaintiff, Kevin John Shorten has died and his legal personal representatives have not sought to take any part in these proceedings. The plaintiffs and the defendant were sons of the deceased. For ease of reference I shall refer to the remaining plaintiff as "Stanley" and the defendant as "Noel".

4 The particulars of the alleged lack of testamentary capacity provided by the defendant in his defence are as follows:-

"(i) In 1996, the deceased was aged 84 years;

(ii) In 1988, the deceased had suffered an extensive left cerebral vascular accident, which left her with a right sided paralysis and

severe expressive dysphasia with a receptive component;

(iii) She was suffering from a defective memory, and cognitive
impairment;

She was unable to understand the nature of the act of the

execution of a will, the extent of the property of which she

was disposing and the claims to which she ought give effect."

5 The question of the deceased's testamentary capacity has been the subject of considerable evidence, lay and expert, to which I shall make reference later. At this point, it is convenient to set out a number of matters by way of background.

7 In 1952 Harold purchased, in his own name, a grazing property known as "Head of the Peel" or "Fernview" near Nundle. It was about 1950 acres in area and has been described in the evidence as difficult country. It was farmed by Harold with some assistance of Noel.

8 In 1955 Harold purchased a block of vacant land in Nundle which appears to have remained vacant until it was sold in 1992.

9 On 19 December 1969 a further grazing property, "Hillview", was purchased at auction. The purchase was not completed until March 1971 when Harold, the deceased and Noel became its owners as tenants-in-common in equal shares. In 1970 these three had formed a partnership known as the "Hillview Pastoral Company" which, after possession of the land was taken, farmed the property.

10 On 22 March 1979 Harold and the deceased made separate Wills. The Will made by the deceased is the subject of the cross-claim in these proceedings. The Will made by Harold was not his last Will and the document appears to have been lost. Its contents remain unknown. The deceased's 1979 Will provided for the appointment of the brothers, Noel, Stanley and Kevin as executors and gave the deceased's share in "Hillview" to Noel and her share in the partnership "Hillview Pastoral Company" to her four children equally. The rest and residue of her Estate was to be divided between Stanley, Kevin and Joycelyn.

11 It is alleged by the plaintiff and disputed by the defendant that at the time these Wills were made the deceased informed Stanley that it was her wish that, finally, Noel should have "Hillview" and Stanley and Kevin should have "Fernview". It was further alleged that the deceased informed Stanley that Noel had promised that he would not interfere with that plan.

12 It is clear that at least from 1979 relations between Stanley, Kevin and Noel were strained. There were disputes in relation to death duty in the Estate of an uncle, J.C. Shorten and, apparently, in relation to other matters. It also appears that Noel remained living with his parents in the Rudder Street home whereas the other children, at various times, married and left, although they maintained contact with their parents.

13 On 31 July 1988 the deceased suffered the stroke referred to in the particulars to the Statement of Defence. There is no dispute that it was a severe stroke. There is no dispute that she was afflicted with a profound hemiplegia and right homonymous hemianopia. These results were permanent. A right hemianaesthesia was severe at first but improved as did a condition of right-sided neglect, and an impaired gag reflex with difficulty in swallowing. She also suffered a severe expressive dysphasia which left her with a marked and extensive impairment of speech. The degree of impairment has been the subject of dispute in the proceedings and I shall return to it later. She was also left with a receptive dysphasia, a condition involving impairment of receiving and processing verbal information. Again, the severity of this affliction was the subject of dispute and I shall refer to it later.

14 The evidence satisfies me that, before her stroke, the deceased suffered from no significant physical or mental problems. She was, indeed, a strong-willed and determined woman, capable of making her views known in a forceful way. She played a significant role in the running of the properties, particularly "Hillview", and was, at times, in dispute with Noel, who objected to her, as he saw it, interfering in his business.

15 On the day of her stroke she was admitted to the Tamworth Base Hospital and became in inmate of the Rehabilitation Ward. She was treated and her condition was monitored in the hospital until she was discharged on 4 November 1988. She thereafter became a resident in the Peel Nursing Home in Tamworth where she remained until her death on 2 February 1999, aged 88 years. The relevant notes of both the Tamworth Base Hospital and the Peel Nursing Home have been examined by expert witnesses called in the case, who have based much of their opinions upon them. Whilst the deceased was in the Nursing Home she came under the care of a local medical practitioner, Dr Peter May who has given evidence in the case.

16 Whilst the deceased was in the Nursing Home a number of events took place, which are of significance in these proceedings.

17 In June 1989 Harold sold "Fernview" for the price of $185,000.00. This meant, of course, that it could not eventually go to Stanley and Kevin. It appears that the proceeds of sale were not kept separate but were available for Harold's general expenses, including the running of "Hillview".

18 On 10 August 1989 Harold made a new Will. By this Will, inter alia, he left his one-third interest in "Hillview" and his one-third interest in the partnership "Hillview Pastoral Company" to Noel.

19 In July 1992 Harold sold the vacant block of land in Nundle for $14,000.00. This amount was, also, not kept separate.

20 Adjoining "Hillview" was another grazing property known as "St. Elmos" and sometimes referred to as "the old Heyman property". It was a property which Noel considered could be operated in conjunction with "Hillview" in an economically advantageous way. The property became available for purchase in 1994. Noel purchased it, with the assistance of $50,000 provided to him by Harold. Whether the sum was a gift or a loan became the subject of dispute later. An amount of $50,000, also was provided by Harold for the purchase of a tractor which was used on "Hillview". There was some dispute, also, as to whether the tractor was the property of Noel or was an asset of the "Hillview Pastoral Company". In any event, its purchase further depleted Harold's assets including the proceeds from the sale of "Fernview".

21 Harold died on 20 June 1995. Probate of Harold's Will was granted to Stanley, Kevin and Noel, the named executors on 14 June 1996. Disputes arose in relation to the administration of the Estate. Noel continued to run "Hillview" in circumstances which led to allegations by Stanley and Kevin that the deceased's one-third interest in the property and the partnership was being detrimentally affected.

22 These disputes resulted in proceedings being brought in this Court, which were settled. As a result of the settlement the Probate granted in 1996 was revoked and a fresh Probate granted on 5 August 1999 to Stanley and Kevin only.

23 Besides the provisions already referred to in favour of Noel, the Will provided for a pecuniary legacy of $10,000.00 to the deceased's daughter, Joycelyn and a bequest of the rest and residue of the Estate, after all necessary payments, upon trust for Florence Minnie Shorten during her life and after her death to Stanley and Kevin in equal shares.

24 It appears that there was little if anything left to fall into residue and that Stanley and Kevin in fact borrowed in order to pay the legacy of $10,000.00 to their sister. It was also apparent that, as things stood, upon the death of their mother, because of the terms of her 1979 Will, Noel would acquire the whole of the property "Hillview" and that Kevin and Stanley would receive little or nothing from the Estates of their parents. I should add that the house property in Nundle, formed part of the residue. It was valued at $50,000. Their mother was given a life-estate in it and the $10,000 legacy to their sister, Joycelyn was charged upon their remainder interest. Noel resided in the Nundle Street house until he vacated it in November 1997.

25 It is clear that, after Harold's death, the reading of his Will, and the discovery that the proceeds of sale of the property "Fernview" had been used, there was friction and ill feeling between Kevin and Stanley on one hand and Noel on the other. It appears that there were disputes relating to the administration of Harold's Estate and as to his assets, it being contended that the $50,000 advanced in relation to the purchase of St. Elmo should form part of the Estate as a debt due from Noel. In relation to these disputes and proceedings that arose from them, Stanley and Kevin instructed Mr Michael McHugh, a local solicitor, in October 1995. I am satisfied that, in the course of discussions with Mr McHugh, Kevin and Stanley informed him of the understanding that had been reached in 1979, in discussions with the deceased, namely that ultimately Kevin and Stanley were to receive the "Fernview" property and Noel was to have "Hillview", there being mutual promises made to the deceased at that time that each of the brothers would not stand in the way of this plan being implemented.

26 It is convenient to state now that I am satisfied that such an understanding was in fact reached. I was generally impressed with the evidence of Stanley, whereas I was less than impressed with the evidence of Noel. Having observed each of them in the witness box, I formed the view that Stanley was by far the more reliable witness.

27 I am satisfied that Kevin and Stanley made known their concerns to Mr McHugh as to the impossibility of the 1979 plan being implemented, in the circumstances that "Fernview" had been sold and the proceeds of sale dissipated. Mr McHugh advised them that the appropriate solution would be for them to see that their mother make a new Will, leaving her interest in "Hillview" and the partnership to Kevin and Stanley. This advice was accepted.

29 Towards the end of November 1995 Stanley spoke to his mother when taking her for an outing in her wheelchair in Anzac Park, Tamworth. I shall return to the contents of this conversation later in these reasons. It is, however, clear that Stanley then formed the view that his mother wished to grant a power of attorney in relation to her affairs and also to make a new Will.

30 On 27 November 1995, Mr McHugh had a telephone conversation with Stanley which was the subject of a note made at the time. Stanley told him that his mother had lucid moments but had trouble talking and had a problem of "shaking" when attempting to sign her name. Stanley indicated, however, that she wished to grant a power of attorney and make a new Will.

31 A file note of Mr McHugh's indicated that on 30 November he endeavoured to ring Dr May but was unable to make contact. It is clear from Mr McHugh's evidence that he regarded it as preferable to have a treating doctor in attendance when a patient as frail and old as the deceased was making a Will. His file note of the 26 October contained a note indicating when Dr May would return from holidays. I infer that Mr McHugh considered that Dr May might be involved in the making of a new Will. This, in itself, suggests that Dr May had given no significant indication at that time that he considered the deceased might lack capacity.

32 On 16 January 1996 there was a conference between Mr McHugh and Stanley relating to matters concerning his father's Estate and his mother's affairs. Mr McHugh made a note at the time which indicated that he recommended to Stanley that an independent solicitor be retained to act for his mother in relation to the making of a power of attorney and a new Will. He recommended that a local solicitor, Mr Patrick O'Halloran be retained. Although he has no file note, he deposes to a recollection of speaking to Mr O'Halloran on the telephone during the conference with Stanley. In his affidavit he says:

"I recall that I thereafter spoke to Mr O'Halloran at his office and outlined to him the existing dispute over the Estate of Harold Shorten and confirmed to him that my client's elderly mother had expressed a desire to grant a power of attorney and to make a new Will which, as I understood it, would have the effect of cutting Noel Shorten out of her Estate."

33 In his oral evidence Mr McHugh recalled attending a conference at Mr O'Halloran's office with Stanley and Kevin, apparently on Friday 19 January. He says that very few things were discussed with Mr O'Halloran on this occasion. In this respect his evidence is in conflict with that of Stanley and more particularly the affidavit of Kevin. Stanley, in his affidavit, says that Mr McHugh "told Mr O'Halloran our problem". Kevin, in his affidavit, which was read, refers to the conference in Mr O'Halloran's office and says that "during that conference we explained to Mr O'Halloran the nature of the problems that had gone before particularly with regard to my father's Will which had been changed and in which my brother Noel received the bulk of the assets leaving the rest of the family with virtually nothing." He also says "It was explained to Mr O'Halloran that it was Mr McHugh's suggestion that to remedy the state of affairs that my mother be requested to change her Will in favour of Stanley and myself particularly with regard to her third share in the property "Hillview".

34 The apparent conflict between the recollection of Mr McHugh and of Stanley and Kevin is, perhaps, explicable on the basis that Mr McHugh recollects introducing the two brothers to Mr O'Halloran and then leaving almost immediately. There is a greater conflict however between the evidence of the two brothers and the evidence of Mr O'Halloran himself as to the degree of information that Mr O'Halloran had before he attended upon the deceased in relation to the power of attorney and the Will. Mr O'Halloran in both his affidavit and oral evidence was quite adamant that he received no information relevant to the power of attorney and the Will except from the deceased herself when he interviewed her on 23 January 1996 at the Peel Street Nursing Home. Such conflicts of testimony are, of course, not unusual and are never easy to resolve when the evidence comes from apparently credible witnesses. I shall return to this question later.

35 Stanley, after a meeting with his mother to which I shall make reference later, telephoned Mr O'Halloran shortly before 23 January 1996 and told him that the deceased was now ready to make a new Will and provide a power of attorney.

36 It appears that Mr O'Halloran made an attempt to see the deceased on 22 January 1996 but that it was not convenient for the interview then to take place. Accordingly, he returned on 23 January. He met Stanley at the nursing home at about 5.00 pm. Stanley took him to his mother, introduced him and shortly thereafter left, after which Mr O'Halloran had a conversation with the deceased which occupied approximately the next one and a half hours. He commenced the conversation by asking a number of apparently usual questions designed to test the mental processes of a person who may have diminished mental capacity, such questions being, for instance, as to the time of day, the name of the Prime Minister and the like. Stanley corroborates Mr O'Halloran in that he recollects such questions, which seemed strange to him, being asked of his mother before he left. It may be noted that there was no dispute that Mr O'Halloran was a very experienced solicitor in the field of wills and had, on many occasions, taken instructions for Wills from persons in nursing homes where testamentary capacity had to be considered. He had also been told that there was "likely to be a fight" in respect of any new Will of the deceased.

37 I shall return to Mr O'Halloran's meeting with the deceased later, when considering the question of her testamentary capacity. At this stage it is sufficient to indicate that, by the conclusion of the meeting, Mr O'Halloran had, by way of summary, the following notes, which he took with him back to his office:

"(page 1)

23.1.96 - 5.00 pm

- attendance at Peel Nursing Home

- Stan Shorten introduced me to his mother and left shortly after.

- I interviewed Mrs Shorten in a private room.

- New Will to be prepared and the Executors and beneficiaries will be her two sons Stan and Kevin - the other son Noel is to be excluded from her new Will - the reasons for this are as follows:

(page 2)

1. In the late 1970's she made a Will and wanted the

rural property 'Fernview' to be given to Stan and Kevin - and the other property 'Hillview' to be given to her other son Noel Shorten.

2. That was her intention in the 1970's.

However in the mid-late 1980's after she had a stroke

and whilst her husband was alive - Noel persuaded her husband to sell 'Fernview'; the monies were put to an account and some time after Noel arranges with his father to use $40,000.00 approx to buy a tractor for himself and also Noel was able to obtain other monies from there sale proceeds totalling $50,000.00 to buy another property for himself. That property was bought by Noel and adjoined the property 'Hillview' (the old Heyman property).

(page 3)

4. Mrs Shorten is therefore of the view that Noel has

already his share - in contrast to Stan and Kevin.

5. For these reasons Mrs Shorten wants to exclude her
son Noel.

Full name

Florence Minnie Shorten

Sons full names Stanley Alexander Shorten

Kevin John Shorten

Executors and Trustees and Beneficiaries

- all of her real and personal property to be given to the above in

equal shares - p/attorney also to above.

(page 4)

- said to Mrs Shorten that I will contact her when the Will is ready.

General

Slow to talk

Lucid

But OK

Keep notes with Will

Will ring M McHugh when I get back to Office

6.30 pm"

38 On 25 January 1996 Mr O'Halloran returned with a new Will drawn in accordance with this note together with a power of attorney in favour of Stanley and Kevin. He gives the following account of what then occurred in his affidavit:

"I firstly read out to her the Will that I had prepared. Again I do not recall precisely what I said to her but I said to her words to the effect 'do you understand' and she said 'yes'.

I then said to her 'is the will in accordance with your wishes?' and she said 'yes'.

I then handed the Will document to her and asked her to read through it. Mrs Shorten then appeared to read through the document.

I also had a printed form of Power of Attorney and again I read that document through to Mrs Shorten and again while I do not remembers the precise words I again asked her whether she understood the document and whether it was in accordance with her wishes receiving affirmative responses.

I then called in a nurse and briefly explained that I needed a person to act as an additional witness to a Will.

Mrs Shorten then signed the Will in my presence and in the presence of the nurse. As she did so she had particular difficulty with her signature, her hand was shaking quite noticeably from side to side, so much so that the nurse steadied her hand by touching against the side of it.

After Mrs Shorten had signed I signed as a witness and the nurse signed as a witness, I asking her to write her name and address under her signature.

As I recall it the nurse then left the room and I invited Mrs Shorten to sign the Power of Attorney document which she did in my presence".

39 The Will thus executed is, of course, the Will sought to be propounded in these proceedings. The question for decision is whether the deceased had testamentary capacity when instructions for the Will were obtained and when she executed the document. I now turn to that question.

Re Hodges; Shorter v Hodges

"The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in

Banks v Goodfellow

((1870) LR 5 QB 549) in which case his Lordship said (at 565):

"…It is essential to the exercise of such a power" (scil, testamentary 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 it a disposal of it which, if the mind had been sound, would not have been made.""

41 Also in Bull v Fulton (1942-43) 66 CLR 295 Williams J said (at 341ff):

"A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims and determining in what proportions the property shall be divided between the Claimants…

Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence, as a whole is sufficient to throw a doubt upon the testator's competency, then the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it."

42 It may be accepted that, in the present case, the afflictions resulting from the brain damage caused by the stroke are "sufficient to throw a doubt" on the deceased's testamentary capacity, despite the fact that the Will was duly executed. However, affirmative satisfaction as to the capacity of the testatrix does not require proof beyond reasonable doubt. In Worth v Clasohm & Anor (1953) 86 CLR 439 Court (Dixon CJ, Webb and Kitto JJ said (at 453):

"The effect of a doubt initially is to require a vigilant examination on 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 the belief that the document propounded is the Will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."

43 I bear these principles in mind when considering the effect of the considerable body of evidence in this case bearing upon the deceased's testamentary capacity. The evidence may be considered under two broad heads, lay evidence and medical evidence. I shall consider each in turn.

45 It is clear that her ability to understand what was said to her depended to a large degree upon the care and patience of the person seeking to communicate with her. I am satisfied, on the evidence, that genuine effort on the part of the communicator would be appreciated and would elicit a corresponding response on the part of the deceased. The reverse would also be true. In this regard, I am satisfied that Noel was not prepared to make the same effort to communicate with his mother as were Stanley, Kevin and Stanley's wife Donna. Indeed, in some respects, he evinced in the witness box an attitude of hostility towards his mother. I consider, also, that the deceased's daughter Joycelyn was fairly dismissive of her mother's ability to receive information and express herself. Like Noel she seemed to regard communicating with her as a fairly hopeless task. There was a ready reference by each of them to the fact that the deceased, on occasions, said 'no' when she meant 'yes' and vice versa, which seemed to indicate to them that attempts to get through to her were not worth pursuing. I also felt that the other lay witness for the defence Ms Pinchen, Joycelyn's daughter, evinced a similar attitude.

46 As I have said, I was impressed by the evidence of Stanley. I felt that he could convey an accurate picture of his mother's abilities and disabilities and that, because he was affectionate and sympathetic towards her, he was able to demand her attention when he sought to communicate with her, get his ideas across to her and obtain from her the maximum response of which she was capable. I make the same comment in respect of his wife Donna, a school teacher, whom I consider to have had an affectionate regard for her mother-in-law, to have spent regular periods with her in which she sought to communicate with her to the greatest possible extent and, during which, she was able to observe the deceased's ability to understand what was being said to her.

47 I was also impressed with the evidence of Maxine Crossley, a nursing assistant who had regular contact with the deceased at the nursing home.

48 These three witnesses were clearly of the view that they could make themselves understood to the deceased, in conversation, providing they took their time and were patient. Responses that they received by word or gesture indicated to them sufficiently that the deceased had comprehended what was being said to her.

49 The deceased's ability to communicate was obviously very limited. I am not satisfied, on the evidence called by the defence, that she was, for practical purposes, limited to the words 'yes' and 'no' which were sometimes used inappropriately. I am satisfied she had an ability to, at least, make small sentences and to convey her meaning by single words and expressive gestures. In my view the following passage from Donna Shorten's affidavit, which I accept, gives a clear picture of the deceased's ability to understand and to communicate. It reads as follows:-

11. "Minnie's condition after the stroke was stable for years. She only really deteriorated in the last few months of her life.

12. One of the after effects of the stroke was to give her significant difficulties of communication in that she had a lot of trouble in expressing herself.

13. In my experience of her ability to understand conversation was strong.

14. She would become very frustrated at her inability to express herself and this frustration would be shown by facial expressions, shaking her head, moving her left hand and arm to make gestures of displeasure.

15. Accordingly communicating with Minnie became a matter of getting down to what she wanted to convey.

16. One had to interact with her using step-by-step procedures.

17. Minnie would persist until she was understood.

18. By way of example I recall a matter a few days after the stroke talking to Minnie and finding that she was ill at ease about something she wanted.

19. On that occasion I proceeded by putting to her alternatives until ultimately I was able to understand that what she wanted was her glasses which were in turn inside her black handbag which was at her home in Nundle in her bedroom in a cupboard.

20. If you took time with Minnie you could find out what she wanted to say.

21. There were a number of occasions when she came out to stay with my husband and I and as such I needed to be able to communicate with her to find out what she wanted.

22. I found that if one was to apply ordinary common sense dealings one could get to what it was that Minnie wanted to say. You had to be patient, you had to give her time, you had to be interactive with her.

23. I never had any doubts that Minnie's mind was clear.

24. She was a lady of firm character, she was determined and she knew what she wanted.

………..

32. In communicating with Minnie she could at her very best string together phrases. Her conversation was not limited to mere responses 'yes' and 'no', although mostly that was all she was required to say.

33. The best that Minnie could do was to put together say somewhere of the order of a sentence of about four words.

34. It particularly struck me on a number of occasions that Minnie's recall of other people was unaffected by her stroke.

35. I can recall phrases and sentences of a short nature said by my mother-in-law on different occasions over the years such as:

'want to go home'

'beautiful garden'

'look at that'

'good night'."

50 I should add that, in my opinion, Mrs Shorten's reliability as an observer of the deceased's abilities was enhanced by her teaching experience. I note also that it was not necessary for her to adopt some form of limited or childish vocabulary when conversing with the deceased. She had no doubt that the deceased could understand everything that she was telling her in ordinary everyday language. She gives an instance of a conversation with her mother-in-law in which she told her about her daughter Tara's exploits at the local pony club. She described the events of the day. She said the deceased "might just say 'ribbons', did she get ribbons?" when told that this was so, the deceased indicated pleasure by saying "that's good".

51 Ms Crossley gives evidence to the same effect. She says that she and her co-workers could communicate with the deceased and she with them although her verbal communication was limited to "in effect one word at a time or short combinations of words." She knew and spoke the names of all her children and grand-children and could clearly demonstrate her wishes by gestures, movements of her head and forcible utterance of the words 'yes' and 'no'.

52 There is ample lay evidence that the deceased had some reading ability. It is clear that she had some impairment as a result of her condition of hemianopia which affected her right visual fields. Ms Crossley had no doubt that the deceased could read and understand, a view based on her own observation. She had books and magazines available to her in the nursing home which she appeared to read.

53 Stanley's evidence was to the same effect. The occasion of his discussion with her in Anzac Park is one such instance to which I shall return. However, he gave a particularly vivid account of a later occasion when application had been made to the Guardianship Board to take over her affairs. She had received a document from the Board. The nursing staff had left it with her and she was apparently reading it when she became very upset and distressed. The staff made contact with Stanley who came to see her immediately. She had her finger on a particular page of the document. He asked her whether this was what was upsetting her and she answered in the affirmative. The portion of the document which she indicated contained information obtained from Noel which significantly down-graded her contribution to "Hillview". It seems clear that she had been able to read this portion of the document sufficiently well for her to have a strong emotional reaction to what she read. There is other evidence to suggest that she was able to aid her reading despite the problem with her visual fields by tracing the line that she was reading with her forefinger.

54 In relation to the deceased's reading ability, I again found the evidence of Donna Shorten helpful. She testified that, even shortly after the stroke, her mother-in-law was wanting her glasses so that she could read. Her reading was restricted at that time, but there was improvement over her period in the nursing home. Mrs Shorten says that, "later on, she read books, newspapers and things like that" and that she had observed this activity going on. She also observed from time to time books that had been provided to the deceased by the nursing home. This reading matter included novels. Also, on one occasion she was provided with a book relating to the 125th anniversary of her school. She appeared to read it with great interest, not just flicking over the pages and looking at the pictures. Also, apparently, she was able to forego the use of glasses, although it is not clear to what extent she depended upon them for reading before the stroke.

55 This lay evidence indicates that the deceased was capable of comprehending words spoken to her in an ordinary conversational way, could read, albeit slowly, and could make herself understood by use of words or short phrases combined with expressive gestures. It required patience on the part of a listener together with care and concentration to obtain the meaning of what the deceased was saying.

56 It is, perhaps, slightly ironic, having regard to the main thrust of the defence, namely that the deceased lacked the necessary powers of comprehension and expression to provide her with testamentary capacity, that Noel, having been advised that his mother had changed her Will, took it upon himself to visit her, in company with his solicitor, in an endeavour to persuade her to change it again, in his favour. On this visit, it appears, both a new will and a document revoking the power of attorney, which his mother had provided to Stanley and Kevin, were presented to her for signature. An explanation of the documents was given to her by the solicitor. She appeared to read them and then indicated most forcefully that she would have nothing to do with them. She drew her head back, shook it vigorously and said 'no'. Later, Noel visited her on his own and was able to induce her to sign the document revoking the earlier power of attorney. His generally belligerent attitude in Court suggests that he was overbearing towards his mother on this occasion. I can only assume that Noel regarded his mother as having the necessary capacity to comprehend and give effect to the documents thus presented to her and that this view was shared by his solicitor, who, it may be noted, did not give evidence in the proceedings.

57 I come, then, to the conversation between Stanley and his mother in Anzac Park. This conversation is important, in that it has an obvious bearing upon the subsequent arrangement for Mr O'Halloran to wait upon the deceased in order to obtain her instructions for the power of attorney and new Will.

58 I am satisfied that Stanley had taken his mother in her wheelchair to Anzac Park, a park near the nursing home, and that, having had the previous discussion with Mr McHugh, he wished to explain to his mother the problems resulting from his father's Will and her Will. He gives the following account of the meeting in his affidavit:-

"47. I gave her some papers I had with me including my father's Will, some bank account papers that showed the money that had been taken out by Noel to purchase4 the land next door to 'Hillview' and showing that there was very little money left in what had been a joint account conducted by mother and my father at the State Bank as it was then called at West Tamworth.

48. I said something to her to the effect:

'You promised that Kevin and I would get 'The Head of the River' and Noel would get 'Hillview' and as it is Kevin and I have been virtually left with a debt. Dad changed his Will - do you want to change yours?'

49. She said vehemently the word:

'yes'.

50. She then said:

'He promised'.

51. I recall my mother raised with me concerns as to the fact that she could not write with her right hand. She raised it with me by taking hold of her right arm with her good left hand, lifting her right arm up and saying:

'my arm, my arm'.

52. I said to her words to the effect:

'Well I can sign my name with my left hand' and picked up a pen that I had with me and I showed her how I could sign my name with my left hand.

53. She then took the pen in her left hand and signed 'Shorten' that is to say her surname without her initials."

59 In a later affidavit he provided further information about this discussion in the following paragraphs:-

"5. There was as I now realise a further subject discussed between us of relevance.

6. In the course of the discussion my mother said the following words to me:

"There is a tin in a cupboard"

I said: "Is it in your room or where?"

She said: "Yes."
I said: "What's in the tin?"
She said: "Papers."
I said: "Has it got anything to do with the Wills?"
My mother said: "Yes."

I don't recall precisely what I then said but I said something to the effect:

"Noel's still in the house..we can't get in."

My mother then replied: "Need tin.""

60 I shall refer to this tin later. It was, in fact, discovered by Kevin and Stanley in 1999 when clearing out the Nundle property. It was concealed, together with some papers, in an area at the top of a cupboard in the bedroom previously occupied by Harold and the deceased.

61 In the course of his oral evidence Stanley recalled other features of the Anzac park conversation. On more than one occasion he mentioned that his sister Joy was referred to in the conversation and that his mother reacted adversely to the mention of her. He said that his mother "got stroppy" and that, in effect, he thought better of mentioning Joy again. Other evidence in the case indicates that there was some coolness between the deceased and her daughter, at least since Harold's death. She visited her mother infrequently in the nursing home, a fact verified by the staff. She, herself, said in her evidence that her mother did not speak to her.

62 Stanley also made it clear that, whilst at Anzac Park, he had pointed out in the bank statements from the State Bank at West Tamworth, relating to the joint account of his mother and father, two entries showing the withdrawals of $30,000 and $20,000 respectively, which he indicated had been used by Noel in the purchase of St. Elmos. In relation to the deceased's statement "he promised", he readily related that to the 1979 conversation, when his mother had advised him that Noel had promised that he would not stand in the way of "Fernview" passing to Stanley and Kevin.

63 It is convenient at this stage to discuss the tin and its contents. I accept what Stanley said as to its having been mentioned in the Anzac Park conversation. It is clear that it was regarded as being of importance by the deceased, in the context of the matters then being discussed. I am satisfied that she had secreted it in the cupboard and that she had sought to conceal its existence, by covering it over in a manner which would suggest that that part of the cupboard had merely been repaired. She had put in and under the tin, which is a medium sized biscuit tin, a large number of documents which are listed in Stanley's second affidavit. I shall not set them out in these reasons. There are some documents which relate to the purchase of "Hillview" and a number of cheque butts and the like.

64 It was submitted, on behalf of Stanley, that his mother had gathered these materials together at a time when it was becoming obvious to her, shortly before her stroke, that the purchase of St. Elmos was in the wind. This, it was suggested, alerted her to the likelihood, if not the inevitability, that "Fernview" would be sold in order to enable Noel to make the purchase. Because this would lead to the unravelling of the 1979 plan for the passing of "Fernview" to Stanley and Kevin, she took it upon herself to ensure that records which might have some bearing on this question should be retained and secured. I do not consider that the evidence establishes any more than that this is a distinct possibility. However, the deceased obviously attached importance to the tin and its contents in relation to the matters that Stanley had brought to her attention. It must be remembered that she, Harold and Noel all lived in the house in Nundle and the prospect of St. Elmos becoming available for purchase in the near future might reasonably be supposed to have been a topic of discussion. In these circumstances the possibility that "Fernview" would need to be sold could readily have occurred to her.

65 Whatever the position, it is clear that, in the context of what she was being told by Stanley in Anzac Park, she was able to recollect the tin, its contents and its importance. This is a matter which, in my opinion, throws considerable light upon her ability to recall and to reason at a time shortly before she had her meeting with Mr O'Halloran. I also accept that in this conversation she evinced considerable determination to change her Will.

66 After this discussion with his mother, Stanley told Mr McHugh that his mother wished to make a new Will and was advised that it would be necessary to get an independent solicitor. I infer that the deceased was advised of these intended arrangements because, on a Friday afternoon visit by Stanley, she told him that "the man hasn't been." Stanley inquired whether she meant the solicitor and, on receiving an affirmative answer, he indicated that he would organise it. I am satisfied that a conversation on these terms did take place and that, thereafter, Stanley made contact with Mr O'Halloran and arranged the meeting with his mother.

67 It is convenient to record at this point that Stanley's credibility has been challenged in written submissions on behalf of the defendant. I have considered those submissions but remain persuaded that Stanley was an honest witness whose evidence, on matters of importance, should be accepted.

68 It appears, from nursing home records and from records in Mr O'Halloran's office, which were belatedly found after his affidavit had been made, that he in fact attended the nursing home on 22 January 1996 bringing with him the power of attorney for signature by the deceased. It appears that she was not physically able to attend to the matter on this occasion and, in the result, he attended the next day when the meeting of approximately one and a half hours duration, already referred to, took place.

69 In his first affidavit, Mr O'Halloran describes what occurred, in relation to the obtaining of his instructions, in the following terms:-

"18. Mrs Shorten was very slow and indeed extremely slow in her speech. She had significant difficulty in getting words out. She would stop from time to time as if she had stopped speaking, there would be on occasions then a long pause and she would then start again. She seemed to have significant difficulty in physically mouthing words.

19. The process of taking Mrs Shorten's instructions accordingly took a long time and I note from the note that I made at the time I was with her from 5 pm to 6.30 pm.

20. Although Mrs Shorten had a great deal of difficulty in explaining things to me, because of the history that she told me, I came to the view that her mind was clear and that she knew what she wanted.

21. I cannot now remember word for word what she told me however while I was with her I wrote out notes."

70 The notes referred to have been set out in full, earlier in these reasons. It is clear, of course, as indicated by Mr O'Halloran in his evidence, that they are a summary and do not purport to record her actual words. Clearly more would have been said than recorded. For instance, the preliminary questions designed to test mental ability and memory, which were heard by Stanley before he was asked to leave, are not recorded.

71 It is quite plain that Mr O'Halloran, as a result of this lengthy interview, held the view that the deceased had testamentary capacity. Indeed, he says in his evidence, that, had he thought there was any real problem about testamentary capacity, he would have made contact with Dr. May. He had no concerns and, consequently, did not involve the doctor.

72 Mr O'Halloran's evidence has been the subject of considerable criticism in written submissions supplied by counsel for the defendant. I have considered the criticisms carefully. However, I am quite persuaded that I should accept the main thrust of his testimony, despite areas of conflict with other witnesses and his inability to recall some matters in detail.

73 Whilst it is true that Mr O'Halloran failed to advert, in his affidavit evidence to a number of matters to which he referred in his oral testimony, I am not thereby persuaded that he was an unreliable witness. This type of deficiency in affidavits is not uncommon and rarely, in my view, leads to really significant concerns about a witness's overall testimony. The witness box can be a far more effective stimulus to recollection than the lawyer's office. In my view, in the course of his oral evidence, Mr O'Halloran recollected a number of things which made his evidence clearer. I observed him closely in his cross-examination, and formed the view that the material he provided, additional to his affidavit evidence, did not result merely from a desire to give convenient answers to difficult questions but represented genuine recollection.

74 I have already referred to the conflict in the evidence of Messrs O'Halloran and Messrs. McHugh and Stanley and Kevin Shorten, as to information given to Mr O'Halloran before his attendances on the deceased. It became clear, in his oral testimony, that Mr O'Halloran, in circumstances where he had genuine difficulty as to recollection, had placed very heavy reliance upon his notes. Indeed, where he had no present recollection and no note of an alleged occurrence, his approach, at least at first, was to conclude that the event had not occurred. It became apparent to me that this was really more a process of reasoning on his part, than a definite recollection that the relevant event had not occurred. When his recollection was stimulated he vaguely remembered that he had had a meeting with the Shorten brothers, in which they were introduced to him by Mr McHugh, at a point in time prior to his attendance upon the deceased and his meeting with Stanley at the nursing home. His file contained no note of any such meeting and he had formed the view, consequently, that it had not taken place. Whilst he remained of the view that the absence of any note meant that he had been given no information as to Stanley and Kevin's problems in relation to the wills of their parents. I consider, as I have already said, that in light of the evidence of Mr McHugh, Stanley and Kevin that some information on these matters, even if sparse, had been provided to him and was of use to him in his interview with the deceased. I should add that the evidence satisfies me that he was not provided with any information as to the deceased's testamentary intentions. Stanley had not been given this information in Anzac Park and had not asked for it. He knew only that the deceased wanted to make a new will.

75 Moreover, despite his original belief that he was entirely dependent upon his note in relation to the interview, it is clear that he carried a mental image of features of it. The passage from his affidavit, set out above, indicates this. Moreover, in the course of his evidence, he was able to recollect other features. He remembered that "at the start it was a number of questions by me and some short answers by her." This was obviously a reference to the general introductory questions, which had somewhat bemused Stanley, but which were designed to test the cognitive powers of the deceased. He further said:-

"My own recollection is asking a series of questions, to get short answers, and then there would be these pauses. She had difficulty in mouthing her words, and I would do more prompting to get this history. That is all I can remember."

76 He further said that he had no doubt that the deceased was able to provide all the information in his note but said:-

"It took a long time,..I was very patient, but there was long pauses. She talked. She tried to utter the words. It took a long time. That is the direct recollection of my meeting with her."

77 He also indicated that his note was not contemporaneous "in the sense of it being done paragraph by paragraph. It was done as one complete document after the interview took place and was done in the deceased's presence."

78 The third paragraph of Mr O'Halloran's notes was the object of much attention in the case, it being contended on behalf of the defendants that the material contained within it was too complex to have been conveyed to Mr O'Halloran by the deceased. Mr O'Halloran remained positive in his evidence that the whole of the information contained in that paragraph was unknown to him before his interview with the deceased. As I have already indicated I have some reservations about that. I think it probable that Mr O'Halloran did, in fact, have some background information which assisted him in his obtaining instructions from the deceased, but no more than would have provided him with some frame work within which to ask questions.

79 Mr O'Halloran was asked to focus his recollection on the obtaining of the material in his note. In relation to "Fernview" he was clear that he did not know of the property before he interviewed the deceased. He remembered that "she kept on mentioning "Fernview" ….She mentioned the sale of "Fernview" on a couple of occasions and that was her concern." He was also satisfied that the information as to her husband having been persuaded to sell "Fernview" by Noel had come from the deceased.

80 In relation to that part of the paragraph which refers to the monies being put into the account and the purchase of a tractor, he was asked the following questions and gave the following answers:-

"Q. Well now, there is a fairly elaborate amount of information that follows about monies being put into the account from the sale of Fernview: an arrangement to buy a tractor and so forth?

A. Mmm-hmm.

Q. And about the monies being used by Noel to buy another property. You see it all written there. I am only trying to summarise it?

A. Yes.

Q. None of that was in any way known to you before you went
there?
A. No.

Q. Again, the information must have come from her?

A. Yes. I asked - well, I can recall asking her questions about the farm, the name of the farm, and she mentioned Noel. I said what did he do but it came from her. The information did come from her, yes. But there were a number of questions I had to ask her about the property, to get the name, and she was - I remember the tractor came from her and the 50,000 came from her. That was her concern. She was upset about the tractor and the $50,000.

Q. But she was able to make herself clear in giving this information to you?

A. Well, I was patient with her. Yes, it took time. It didn't

happen quickly. It took a long time to get the information about the farm from her. But it did come from her."

81 In relation to the purchase of the adjoining property, Mr O'Halloran gave the following evidence:-

"

Q. Did you understand the property that had been purchased was the old Heyman property?

A. That's right.

Q. She told you that?

A. Yes, she told me that, because I said "Who owned it?"

Q. Well, you were firmly of the view, I take it, that none of the information that is in that paragraph was in your mind before you saw her on 23 January as a result of conversations with Kevin and Stanley Shorten?

A. That's correct. That is quite right."

82 It is, of course, unfortunate that these recollections did not appear in Mr O'Halloran's affidavits. However, I am satisfied that the recollections were genuine and assist in providing a picture of what occurred in the course of the interview.

83 In the course of his oral evidence, it became clear that Mr O'Halloran, as a practitioner experienced in the area of taking instructions for the wills of elderly people, followed a number of regular practices. These related to satisfying himself as to testamentary capacity in accordance with the guidelines of Banks v Goodfellow (1870 LR 5 QB 549). He spoke of asking standard general knowledge questions first, followed by family questions. These were a series of questions he customarily asked "before the formal interview." In relation to this he gave the following answers to the following questions:-

"Q. Well, I can't understand why they don't appear in this note?

A. Well, I never do your Honour.

Q. You say that you never do?

A. No, because she was of sound mind in my view.

Q. Yes, but does that mean you didn't ask the questions because you had a view that she was of sound mind, or that you did ask the questions and as a result of the answers you got, you formed the view that she was of sound mind? I don't quite follow?

A. No, well look, I didn't record it. My practice is, always has been, to ask a number of questions first, general knowledge questions first to see if they can answer the basic day-to-day general knowledge questions and if they can, then I go on to the next step which is the family. Now in all honesty I didn't make a note. I don't recall discussing this with her, it's so long ago. But that's my practice dealing with elderly people.

Q. Well dealing with 1996, do I understand from your evidence that it was your practice then?

A. Yes, yes, of course."

84 Mr O'Halloran said he had a similar practice in relation to questioning elderly people about their assets and providing advice about the Family Provision Act. It is, undoubtedly, a matter for regret that Mr O'Halloran did not see fit to record in his note of his interview with the deceased the fact that he had followed out these practices in the interview. Had he done so, of course, the Court's task would have been a great deal easier. However, having heard and considered his evidence, I have come to the view that, more probably than not, he did follow his practice in this interview, and, as a result, formed the view that the deceased had these matters in mind when giving him her instructions.

85 Although it was put to Mr O'Halloran that he had obtained the information in his note from persons other than the deceased, it was not suggested, in questioning nor in the written submissions on behalf of the defendant, that the note of the interview was a concoction in that Mr O'Halloran was knowingly misrepresenting that it was information obtained solely from the deceased at the interview in circumstances where he knew he had obtained it elsewhere.. The question, therefore, becomes one of whether, in some way, Mr O'Halloran because of information he already possessed from other sources, mistakenly believed that he was, in fact, obtaining the information from the deceased in the course of a difficult interview, in which he simply failed to communicate with her in a meaningful way. I am satisfied that this was not the true position. On the contrary, I am satisfied that, at the end of the interview, Mr O'Halloran, as a responsible and experienced solicitor, held the view that the deceased had testamentary capacity, having provided him with information indicating that to be so, and also that she had provided information as to her testamentary intentions and the reasons for them which he had recorded in his note.

86 Reliance was placed by the defendant on the fact that the deceased's daughter Joycelyn was not, apparently, mentioned in the deceased's instructions to Mr O'Halloran. Of course, she may well have been mentioned as being a child of the deceased in the area of the discussion which Mr O'Halloran did not record. However, it is clear that no reasons were given by the deceased for her exclusion from the Will. I have come to the conclusion that this fact does not reflect adversely upon the deceased's testamentary capacity. It is apparent that there was some coolness between the deceased and her daughter, particularly after Harold's death. In her evidence the daughter confirms this. On the occasions when she visited her mother, her mother did not speak to her. She simply remained silent while her daughter tried to converse. This was clearly in contrast to the way in which she behaved when visited by Stanley and his wife. Moreover, Stanley had raised the subject of Joycelyn, as already indicated, in the Anzac Park discussion, when the deceased had been most dismissive of any further mention of her. I am prepared to infer that the deceased was indicating that, in the context of her making her new Will, she did not propose to make any provision for Joycelyn. Whether or not this was a fair attitude is not to the point. The only question is whether she was capable of recollecting who Joycelyn was and of understanding whether she had a claim upon her bounty. I am satisfied that she was so capable. The evidence also satisfies me that she was capable of making a purposeful decision to exclude her. (See generally Harwood v Baker, ((1840) 13 ER 117).

87 On the instructions that he understood he had, Mr O'Halloran drew up a Will for the deceased. It was a simple Will. There is no issue in the case that the deceased relevantly had an awareness and an appreciation of the significance of the act of making a will. The circumstances relating to her execution of the Will and its attestation are set out in the portion of Mr O'Halloran's affidavit which I have cited above. If the deceased, in fact, had testamentary capacity then, in my view, there is no question that she knew and approved of the contents of the Will. The contrary is not asserted.

88 Apart from the lay evidence which I have now reviewed, the Court received medical evidence on the question of the deceased's capacity. I now turn to that evidence.

The Estate of Ethel Gertrude Griffith Deceased

Easter v Griffith & Ors

"In judging the will propounded, and the challenge to it, the Court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions, such as a 'delusion' or 'paranoia' have been established. Such evidence is only relevant as it throws light on the Court's responsibility to decide whether the testator has appreciated the extent of the property to be disposed of; realised the various calls for disposition to which consideration should be given; and was able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will… There is nothing excessively technical in any of these considerations. What the Court is asked to do is to determine, on all the evidence, whether for the purpose for which the law provides and protects testamentary freedom, the testator had the capacity to give effect to the legal privilege."

90 As has, no doubt, become apparent, it is my opinion that, absent the medical evidence, the lay evidence, which I have accepted, is sufficient to satisfy me, prima facie, that, on the balance of probabilities, the deceased had testamentary capacity at the time she gave instructions to Mr O'Halloran and at the time she executed her Will. In these circumstances, the question I pose for myself is: does the medical evidence require that I change that opinion? Does it raise doubts as to the validity of the lay evidence such that I should, in the ultim ate, not accept it?

91 The medical evidence, for the most part, has been directed to considerations of whether the deceased could have absorbed the information given to her by Stanley on the occasion in Anzac Park and responded in the way he deposed to, whether subsequently she could have inquired from Stanley as to the visit of the solicitor, and whether she could have given the instructions to Mr O'Halloran which he says that he received. On behalf of the defendant, it is asserted that her brain damage occasioned by the stroke was so profound as to prevent her forming the necessary testamentary intentions, giving expression to them and, generally understanding the nature of her estate, the claims that could be made upon her bounty and how such claims should be weighed up. As already indicated there is no dispute that she understood the significance of making a will and could appreciate the act of making one.

92 The medical evidence was given by Dr Bell for the plaintiff and Ms Bennett and Dr May for the defendant, the first two being specialists and the third a general practitioner.

93 Some preliminary observations seem appropriate. I note that there is no dispute, on the medical evidence, that the nature of the brain damage suffered by the deceased, as a result of her stroke, was not such as to prevent her remembering matters of significance which had occurred before the stroke. Her receptive dysphasia did not impinge upon her memory of such matters. In particular, she was capable of remembering arrangements and promises made in relation to the wills made by herself and her husband in 1979. She would have been able to remember the properties named as "Hillview", "Fernview" and also "St. Elmos", which she appeared to remember more under the name of "the old Heyman property". She would also have been able to remember the contents of her own Will and what her property was. There is some dispute as to whether she would have been aware of the minor provision made for her in her husband's later Will. Undoubtedly, her property, for practical purposes, consisted of her one-third interest in "Hillview" and in the partnership operating it. In any event, her husband's Will was part of the material discussed at Anzac Park. I feel, on balance, that she was aware of what it provided for her but probably regarded it as of little significance. She clearly wanted to make a fresh Will which would alter her previous Will in favour of Noel and give to Stanley and Kevin what she had previously given to him.

94 I do not understand the medical evidence to suggest that the deceased's motivation was unimportant. The lay evidence clearly indicates that her ability to communicate was influenced by her desire to do so. She was capable of indicating her views and intentions in a forcible manner, as she did when rejecting the will produced by the defendant and his solicitor. I am satisfied that, after Stanley had spoken to her at Anzac Park, she knew "Fernview" had been sold and understood what had happened to the proceeds of sale. She was determined to make a new will. This determination was expressed in the inquiry she subsequently made about the solicitor and the determination remained throughout the lengthy and difficult interview with Mr O'Hallaron. I see nothing in the medical evidence to gainsay that her determination would have enhanced her efforts at communication on that occasion.

95 I consider first the evidence of Dr May. At the time he had the deceased under his care in the Peel Nursing Home he was a relatively young medical practitioner, not long out of hospital training. His role was to care for her physical health, a matter which he attended to from time to time. He says that when Mr McHugh approached him as to the deceased's capacity to make a will, to the best of his knowledge, he responded to the effect:-

"I have grave concerns that she is able to communicate what she wants or to understand what is being put to her. Her communication difficulties both in terms of comprehension and expression would make it a very uncertain undertaking."

96 I have no doubt that the doctor has come to hold the view that he expressed himself in this way. However, he made no note at the time and I prefer to accept Mr McHugh's evidence, to which reference has already been made. Mr McHugh did make a note and, having spoken to the doctor he did advise the Shorten brothers that they should see if their mother would make a fresh Will.

97 It is apparent that Dr May experienced difficulty in communicating with the deceased. He freely concedes, however, that he had not "sat with her for ninety minutes". He always had the assistance of the nursing staff who were able to communicate better with the deceased than he was. He clearly had her best interests at heart and became concerned, in November 1995, as to whether it was in her interest to give a power of attorney in relation to her affairs. It appears that this concern arose from a previous occasion when some patient's giving of a power of attorney had had unfortunate results. He decided that he would advise the deceased as to the availability of the Office of the Protective Commissioner. He describes his interview with her and the opinions he formed in the following portion of his affidavit:-

"In the course of the interview I attempted to describe the role of the Protective Commissioner in broad terms emphasising that it provided a mechanism for protecting the financial interests of individuals who are unable to manage their own affairs.

(i) I suggested to Minnie Shorten that she might consider asking for the involvement of this body in her situation. I repeated my explanations several times in attempting to clarify them to her and I asked her on each occasion if she understood what I was saying. Her verbal and physical response suggested that she did understand and I made the following entry in her clinical record:

(ii) "Well. I have discussed concept of the power of attorney and the Office of the Protective Commission with Minnie. She understands what I have said but I do not feel confident at this stage that she could indicate her preference easily and this will require patient and careful explanation.

Does she want to give power of attorney?

* If so, to whom.

Would she prefer the involvement of the Office of the

Protective Commissioner."

(iii) In this conversation there was little or no interaction from Minnie. I told her that the Protective Office "protects your interests". I repeated this to her three or four times. Each time I then asked her, "do you understand?" She had a puzzled expression on her face but she said "Yes".

(iv) I believe that Minnie understood what I was saying to her, but remained very doubtful that she would easily be able to make her thoughts known."

98 Obviously Dr May held the view that an attempt to explain the fairly complex concept of the role of the Protective Commissioner to the deceased was a worthwhile undertaking. He must have considered that there was a reasonable prospect that she would comprehend what he was saying. In the note that he makes, he indicates his view that she did understand but could have problems indicating her preference. This view seems to be consistent with the diagnosis accepted by the specialists that she had a comparatively low level of receptive dysphasia and a comparatively higher level of expressive dysphasia. He felt that she could be communicated with far more readily than she herself could communicate. He notes however that patience and care would be needed, apparently, in obtaining her thoughts on the subject.

99 Dr May seems, later on, to have formed the view that the deceased did not have testamentary capacity. This view must be contrasted with the view he held, apparently, at the time when he spoke to Mr McHugh and at the time when he made the note set out above. In the ultimate, I have not, with respect, found the evidence of Dr May particularly helpful. Also, I do not consider that the episode he describes in his evidence relating to his purchase of a tapestry, which was made by the deceased in the nursing home, provides any significant help in evaluating the question of her testamentary capacity.

100 I turn then to the evidence of Dr Bell for the plaintiff and Ms Bennett for the defendant. Dr Bell is a highly experienced psychiatrist and Ms Bennett a highly qualified clinical neuropsychologist. Neither of these specialists had attended the deceased in her lifetime. Each gave opinions based upon medical and nursing records from the Tamworth Base Hospital and the Peel Nursing Home together with the witness affidavits filed in the case. As might be expected their evidence was highly technical. It was also lengthy..

101 There was no dispute between them as to the serious damage occasioned by the stroke. This damage was located in the left hemisphere of the brain whilst the right hemisphere remained intact.

102 The functions of the two hemispheres of the brain were described at some length in the evidence. It has been correctly, in my opinion, summarised in the submissions of the defendant's counsel, as follows:-

"The left hemisphere function is involved with speech production, reading, writing and verbal memory. It fulfils the verbal function, which is a far more specialized task than that performed by the right hemisphere for language.

The right hemisphere has to do with the visual, perceptual skills, spacial and construction skills, spacial recognition and non-verbal memory. The right hemisphere can manage a range of important thinking ability, for example thinking processes involving visuo-spatial elements, emotion and perception of significant events. The fact that her right hemisphere was left pretty much intact explains why she had the ability to long stitch (do tapestry) and the ability to enjoy music."

103 It is clear that the deceased's reading ability was impaired because of the stroke -caused right homonymous hemianopia. As indicated, I am of the view that it was impaired but not destroyed. Too many people who observed her were of the view that she could read. Considering her forceful personality and the degree to which she could evince frustration, I cannot accept that she would simply have failed to indicate an inability to read material put before her. She would have complained vigorously. I am not persuaded to a contrary view by the medical evidence. I consider that the overall effect of Dr Bell's evidence is that she retained a restricted ability to read, despite some concern in relation to her apparent abandonment of her glasses. I accept his evidence.

104 The damage to the left hemisphere resulted in the receptive and deceptive dysphasia already referred to. There seems to be no dispute between the experts that the expressive dysphasia resulted in her having the use of only a small number of words and robbed her of the ability of uttering connected thoughts in sentences. Her speech lacked connecting words, adverbs and prepositions, with the resulting loss of grammar and syntax. Her available words would be "concrete" words associated with visual images. This was related to her dependence upon her undamaged right cerebral hemisphere.

105 Her receptive dysphasia was less easily defined. There was no dispute that she would have had difficulty understanding abstract and complex information, especially if it was presented to her in a speedy manner. This problem resulted from the damage to the left hemisphere. Her cognitive abilities, apart from this, were more difficult to determine.

106 The exact areas of damage to the left hemisphere have never been the subject of "imaging" by scanning equipment. Accordingly, the areas of damage could only be inferred from the effects of the stroke. It would seem, therefore, that as there was factual dispute as to the effects of the stroke there must, correspondingly, be some doubt as to the precise extent of the damage to her brain. In these circumstances it seems to me that it is not particularly helpful to postulate particular damage, which cannot be proved objectively, and then infer from that postulation what particular effects would occur with regard to the deceased's powers of comprehension and expression. In this regard, I have found the evidence of Dr Bell more helpful than the evidence of Ms Bennett. The following are examples of Dr Bell's views.

107 In determining the extent of loss, Dr Bell said:-

"The proof of the pudding is in the eating thereof in this case. The record of what she could do and what she did do is the measure to me of what she can manage. I can't do anything more than make my observations based upon what she actually did manage."

108 In relation to the deceased's problems he said:-

"Although she had a great inability to express herself in words as such that does not mean that behind it there was a parallel degree of inability to conceptualise."

109 He also said:-

"The artist, the musician, the draftsman, they are using high order intellectual abilities, some of these are completely untouched and unaffected by injury to the left cerebral hemisphere."

110 Dr Bell also made the following observations in answer to questions:-

"HIS HONOUR: I suppose, we are dealing here with diagnostic categories, within which there are graduations and variations is that right?

A. Yes.

Q. But to a large extent with cases of this kind, they have to be fleshed out by what reputable observers can tell you about the way a person behaves?

A. Yes.

Q. And that would be so whether a layman is trying to understand the situation as well as a person in the medical profession?

A. Yes your Honour."

111 I accept this evidence of Dr Bell. It indicates to me the great significance that should be accorded in this case to the observed abilities of the deceased.

112 Both experts referred to "fatigueability" as being a consequence of the type of brain injury suffered by the deceased. A person with those injuries would, display fatigue when required to communicate for any length of time. Dr Bell said, "The little command they have over English gets worse and worse within minutes," and that such person would need a rest of five or ten minutes every fifteen minutes or so. Again, I note that this expert view appears to accord with the factual description given by Mr O'Halloran of the necessary pauses that occurred in his obtaining information from the deceased.

113 I return to consider the areas of dispute to which I have made reference earlier.

114 Dr Bell was of the view that given time and patience, Stanley's information conveyed in the Anzac Park discussion could have been understood by the deceased despite her brain damage. She could have followed, in the bank statements, the references to payments and could, in general terms, have understood, because of her intact right cerebral hemisphere, what Stanley was explaining to her. It is clear, also, from other evidence to which I have made some reference, that she would have been assisted in this area by her retention of memory of past events. I note, also, in relation to the Anzac Park episode, that, although Ms Bennett had originally expressed the view that the deceased would not have been capable of uttering the phrase "he promised" she later changed her mind, on the basis that, because the situation was emotionally charged, and because the word had been previously used in this discussion, it would have been possible for the deceased to have given expression to it, despite the fact that it conveyed a complex rather than "concrete" idea.

115 The expert evidence in the case does not deflect me from the view that I had formed as to Stanley's veracity and the accuracy of his recollection of what occurred between himself and his mother in the park. Indeed Dr Bell's evidence, which I accept, is supportive of this view.

116 As to the reference to the solicitor in the conversation in the nursing home, I am quite satisfied, on Dr Bell's evidence, that these words or something similar could have been uttered by the deceased and relate back to her expectation, based upon the conversation in the park, that steps would be taken to enable her to change her Will.

117 So far as the interview with Mr O'Halloran is concerned, it is quite obvious that expert evidence must be largely conjectural in the absence of a complete version of the actual conversation. The medical evidence indicated that there would have been quite obvious difficulties involved in the conveying by the deceased to Mr O'Halloran of information, particularly that contained in the third paragraph of his notes. Dr Bell was of the view that, in the circumstances, some cueing would have been very helpful in getting that information. I consider that, although he does not now recollect it, Mr O'Halloran was, more probably than not, armed with some information which would enable cueing to take place. Indeed he spoke of "prompting" in the passage cited above. Dr Bell's evidence, which I accept, in general, supports the view that I have formed, on the basis of Mr O'Halloran's evidence, that, at the end of the lengthy interview he had obtained, one way or another, from the deceased, the information contained in his note. In this regard I have carefully considered the evidence of Ms Bennett to the contrary. If accepted in full it would lead to the conclusion that Mr O'Halloran could not honestly have made the note that he did. I am satisfied that this was not so.

118 I have read and considered, more than once, the expert evidence in the case which was complex and lengthy. It is unnecessary to set it out. I found the evidence of Dr Bell more compelling than that of Ms Bennett, despite her obvious expertise. His evidence was, in my view, both consistent with and supportive of the lay evidence, which I accepted.

119 Accordingly, I am satisfied that when the deceased gave instructions to Mr O'Halloran, she had testamentary capacity and that when she executed her Will, two days later, she knew and approved of its contents. The Will being duly witnessed and attested in accordance with law, I find that the plaintiff has made out his case. He has dispelled the suspicion arising from the circumstances of the deceased's brain damage. The deceased's Will of 25 January 1996 should be admitted to Probate. It follows that the defendant's cross-claim should be dismissed.

120 I am inclined to the view that in all the circumstances, the defendant, as the appropriate contradictor, was justified in opposing the plaintiff's claim and that, consequently, the costs of all parties should be paid out of the deceased's estate. I have not heard final argument on costs and, therefore, express no concluded view.

121 I stand the matter over for 7 days to enable the parties to consider their position as to the question of costs and to bring in Short Minutes.

Last Modified: 04/05/2001

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Citations

Shorten v Shorten [2001] NSWSC 100

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XYZ v State Trustees Ltd [2006] VSC 444

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Statutory Material Cited

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Shorten v Shorten (No 2) [2003] NSWCA 60

CITATION:	Shorten v Shorten [2001] NSWSC 100
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 108772/99
HEARING DATE(S):	19/02/2001 - 27/02/2001
JUDGMENT DATE:	3 April 2001
PARTIES :	Stanley Alexander Shorten v Noel William Shorten
JUDGMENT OF:	Foster AJ at 1

COUNSEL :	M. Bradford - Plaintiff P. Hallen SC - Defendant
SOLICITORS:	Messrs Duncan MacLean, Tamworth - Plaintiff Messrs Harris Wheeler, Newcastle - Defendant
CATCHWORDS:	Plaintiffs sought order that Probate be granted in solemn form to them as executors - Defendant filed Caveat against making grant of Probate - Question of deceased's testamentary capacity.
LEGISLATION CITED:	The Wills, Probate & Administration Act 1898
CASES CITED:	Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705. Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942-43) 66 CLR 295 Worth v Clasohm & Anor (1953) 86 CLR 439 The Estate of Ethel Gertrude Griffith Deceased; Easter v Griffith & Ors (unreported Court of Appeal, 7 June 1995) Harwood v Baker (1840) 13 ER 117.
DECISION:	Paragraphs 119, 120 and 121.