THILLAINATH & ORS -v- IAN PETER McDONELL as Executor of the Estate of RITA AMY McDONELL (DEC) [2000] WASC 307

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 307
Case No:	CIV:2178/1998	Heard:	17-19 JULY, 13-15 NOVEMBER 2000
Coram:	HASLUCK J	Delivered:	19/12/00
No of pages:	36	Judgment Part:	1 of 1
Result:	Will dated 7 August 1995 proved in solemn form
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Parties:	WENDY JUDITH THILLAINATH SUNITA ANAN THILLAINATH SIVANATH JOHN THILLAINATH GANESAN PETER THILLAINATH IAN PETER McDONELL as Executor of the Estate of RITA AMY McDONELL (DEC)
Catchwords:	Wills Validity Testamentary capacity Elderly widow with poor eyesight and history of strokes Will benefiting son and daughter in equal shares Son played principal role in preparation and execution of Will Suspicious circumstances and need for vigilance Burden of proof that Will properly executed Burden of proof discharged by son
Legislation:	Supreme Court Rules, O 73 Wills Act 1970
Case References:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Battan Singh v Amirchand [1948] AC 161 Nock v Austin (1918) 25 CLR 519 Parker v Felgate (1883) 8PD 173 Silvester & Ors v Tarabini & Ors, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996 West Australian Trustees v Holmes [1961] WAR 144 Worth v Clasohm (1952) 86 CLR 439 Allcard v Skinner (1887) 36 Ch D 145 Barry v Butlin (1838) 2 MOO PC 480 Boreham v Prince Henry Hospital (1955) 29 ALJ 179 Boughton & Anor v Knight & Ors (1873) LR 3 P&D 64 Bull & Ors v Fulton (1942) 66 CLR 295 Callaghan v Myers (1880) 1 LR (NSW) 351 Collins, by her next friend Poletti v May [2000] WASC 29 Commercial Bank of Australia Ltd v Amadio & Anor (1983) 151 CLR 447 Du Boulay & Anor v McKellar & Ors (1906) 9 WALR 2 Gibbons v Wright (1954) 91 CLR 432 Green & Ors v Dumsday & Anor (1916) 18 WALR 73 In the Estate of Bohrmann [1938] 1 All ER 271 In the Will of Mary Wilson (1897) 23 VLR 197 In the Will of Steward [1964] VR 179 Johnson v Buttress (1936) 56 CLR 113 Kenny v Wilson (1911) 11 SR (NSW) 460 Louth v Diprose (1992) 175 CLR 621 Papijans v Gudowski [1963] Tas SR 183 Perera & Ors v Perera & Anor [1901] AC 354 Perpetual Executors, Trustees and Agency Co (WA) Ltd v Deacon & Anor (1935) 38 WALR 31 Re Flynn [1982] 1 All ER 882 Re Hall (1988) 50 DLR (4th) 51 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 Wilkie & Ors v Wilkie & Anor (1915) 17 WALR 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THILLAINATH & ORS -v- IAN PETER McDONELL as Executor of the Estate of RITA AMY McDONELL (DEC) [2000] WASC 307 CORAM : HASLUCK J HEARD : 17-19 JULY, 13-15 NOVEMBER 2000 DELIVERED : 19 DECEMBER 2000 FILE NO/S : CIV 2178 of 1998 BETWEEN : WENDY JUDITH THILLAINATH

SUNITA ANAN THILLAINATH

SIVANATH JOHN THILLAINATH

GANESAN PETER THILLAINATH

Plaintiffs

AND

IAN PETER McDONELL as Executor of the Estate of RITA AMY McDONELL (DEC)

Defendant

Catchwords:

Wills - Validity - Testamentary capacity - Elderly widow with poor eyesight and history of strokes - Will benefiting son and daughter in equal shares - Son played principal role in preparation and execution of Will - Suspicious circumstances and need for vigilance - Burden of proof that Will properly executed - Burden of proof discharged by son

Legislation:

Supreme Court Rules, O 73

Wills Act 1970

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Result:

Will dated 7 August 1995 proved in solemn form

Representation:

Counsel:

Plaintiffs : Mr S R Sirett

Defendant : Mr R E Keen

Solicitors:

Plaintiffs : Wojtowicz Kelly

Defendant : Corsers

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Battan Singh v Amirchand [1948] AC 161
Nock v Austin (1918) 25 CLR 519
Parker v Felgate (1883) 8PD 173
Silvester & Ors v Tarabini & Ors, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996
West Australian Trustees v Holmes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Allcard v Skinner (1887) 36 Ch D 145
Barry v Butlin (1838) 2 MOO PC 480
Boreham v Prince Henry Hospital (1955) 29 ALJ 179
Boughton & Anor v Knight & Ors (1873) LR 3 P&D 64
Bull & Ors v Fulton (1942) 66 CLR 295
Callaghan v Myers (1880) 1 LR (NSW) 351
Collins, by her next friend Poletti v May [2000] WASC 29
Commercial Bank of Australia Ltd v Amadio & Anor (1983) 151 CLR 447
Du Boulay & Anor v McKellar & Ors (1906) 9 WALR 2
Gibbons v Wright (1954) 91 CLR 432

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Green & Ors v Dumsday & Anor (1916) 18 WALR 73
In the Estate of Bohrmann [1938] 1 All ER 271
In the Will of Mary Wilson (1897) 23 VLR 197
In the Will of Steward [1964] VR 179
Johnson v Buttress (1936) 56 CLR 113
Kenny v Wilson (1911) 11 SR (NSW) 460
Louth v Diprose (1992) 175 CLR 621
Papijans v Gudowski [1963] Tas SR 183
Perera & Ors v Perera & Anor [1901] AC 354
Perpetual Executors, Trustees and Agency Co (WA) Ltd v Deacon & Anor (1935) 38 WALR 31
Re Flynn [1982] 1 All ER 882
Re Hall (1988) 50 DLR (4th) 51
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Union Bank of Australia Ltd v Whitelaw [1906] VLR 711
Wilkie & Ors v Wilkie & Anor (1915) 17 WALR 156

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1 HASLUCK J: These proceedings concern a Will made by the late Rita Amy McDonell, who died on 2 September 1996. The plaintiffs seek an order that a Will executed by the deceased on 7 August 1995, 12 months prior to her death, be proved in solemn form. The facts and matters set out in the statement of claim bring into issue the testamentary capacity of the deceased and the question of whether the Court should determine that an earlier Will of the deceased dated 19 July 1989 should be regarded as the operative instrument.

2 The first-named plaintiff, Wendy Judith Thillainath, is the daughter of the deceased. The second, third and fourth-named plaintiffs are the children of the first-named plaintiff and thus the grandchildren of the deceased. The defendant, Ian Peter McDonell, is the son of the deceased. He is also the father of the deceased's additional grandchildren, Gregory McDonell and Leigh McDonell. By her 1995 Will, the deceased purported to appoint her son and daughter as the executors of her Will. In the event, however, owing to a dispute between the parties, probate of the 1995 Will was granted to the defendant alone.

3 The statement of claim at the commencement of the trial included allegations that the 1995 Will was executed by the deceased in circumstances amounting to undue influence or, alternatively, to unconscionable conduct. These allegations were accompanied by a plea that the defendant had misled the deceased as to the effect of the Will. A good deal of evidence was adduced at the trial bearing upon these issues. On the final day of the hearing, the allegations were withdrawn. Nonetheless, it remains necessary to review the evidence in its entirety, and to look closely at the nature of the relationship between the deceased and the members of her family circle, for the decided cases indicate that where the testamentary capacity of the deceased is in question the Court will have to determine whether the execution of the Will was attended by any suspicious circumstances.

4 The deceased's husband was a horticulturalist. There were two children of the marriage, being the first-named plaintiff, Wendy, born in 1935, and the defendant, known as Peter, born in 1938. When the children were young, the family lived in Victoria, but this was followed by a move to Berri in South Australia in the early 1950s. Wendy was employed as a nurse and in 1960 married a medical practitioner, Arumugam Thillainath, who had grown up in Malaysia but subsequently obtained a degree from Melbourne University. Wendy and her husband spent a period in Malaysia before settling in Perth, Western Australia, during the 1980s. Peter obtained various qualifications, including a law

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degree and, for many years, worked for Boral in a number of different positions in New South Wales.

5 The deceased's husband was killed in a car accident in March 1970. It seems that the deceased and her son, Peter, undertook the responsibility of winding-up Mr McDonell's estate. The deceased then became reasonably experienced in the handling of a share portfolio and maintaining records in relation to the same.

6 In a letter to her daughter dated 22 May 1989, written from her home in Berri, the deceased made certain observations to the effect that in the course of attending to her husband's estate she had received little help from her son, "Pete", as he always seemed too busy to sign papers, and she had therefore given instructions to her lawyer in Berri, Tim O'Brien, to prepare a new Will for herself in which Wendy was named as sole executor.

7 The Will in question is dated 19 July 1989 and, in addition to appointing Wendy as executrix, provides that the deceased's estate was to be divided between her son, her daughter and her five grandchildren in equal shares. It follows from this, as Wendy had three children, that Wendy's side of the family would receive a marginally larger share of the deceased's estate under this Will than Peter's side of the family.

8 In 1991, Peter's circumstances changed. He was retrenched as a result of a restructuring of his employer company, so he proceeded to set up a consultancy business. He said in evidence that by this time his mother was living in a duplex residence in Berri in a supportive community. He said further that he recalled discussing her financial affairs with her in or about January 1994 and then arranged to take over the management of her bank accounts, investments and tax obligations. He was able to do this because by this time he was equipped with a computerised investment management programme. This meant that he was able to maintain records and correspond with the various companies and institutions with which his mother's investments were held.

9 In the meantime, the deceased had encountered some problems with her health. It is apparent from a report prepared by Dr Dunn of the Riverland Medical Centre in Berri that in 1954 the deceased had suffered a cerebral aneurism. In 1975 she suffered a cerebrovascular accident for which she was hospitalised. In August 1993, she had a stroke which left her with slurred speech and this led to her spending a period with her daughter in Perth. After her return to Berri, arrangements were made for

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her to sign a power of attorney dated 24 February 1994, conferring powers on her son and daughter jointly to administer her affairs. It is apparent from other documentation, however, that she continued to take a close interest in her investments.

10 In October 1994, the deceased was admitted to hospital in Berri in a confused state, and because of her inability to look after herself. Shortly afterwards, Wendy assisted the deceased to move to Perth so that she could reside with Dr Thillainath and his family.

11 According to a report prepared by Dr Dunn some years later, the deceased was admitted to the Riverland Regional Hospital at Berri in October 1994 with a diagnosis of mild senile dementia. She had been observed by Dr Dunn on several home visits to be becoming more forgetful, disoriented and unable to dress herself and carry out normal household activities. He recognised that there were times during the lead-up to her admission to hospital when she had quite lucid speech and thought. His impression was, however, of a slowly increasing lack of ability in her organisational skills, thought processes, and ability to look after herself.

12 Soon after her arrival in Perth, the deceased had occasion to consult a local medical practitioner, Dr J K Greenham, of the Riseley Medical Group in Applecross. The deceased's daughter, Wendy, was present during the course of this consultation. Dr Greenham saw the deceased and her daughter again on 13 May 1995 on which occasion there was some discussion about the elderly patient's future.

13 In a report written some years later, Dr Greenham said that there was "little doubt in my mind that she was suffering from increasing dementia and similar observations were made by Dr John Dunn from the Berri Medical Clinic in his letter to me in February 1995." In a subsequent report, Dr Greenham said that the main points pointing to a diagnosis of dementia were that the deceased had extremely poor recent memory, was extremely forgetful, not uncommonly misplaced things, and could not always remember where she was and could not remember recent events or conversations.

14 Under cross-examination, Dr Greenham agreed that he did not make specific notes about the deceased's mental state or make any formal assessment in that regard. He agreed that the daughter, Wendy, supplied answers when the mother was unable to provide a satisfactory response.

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The deceased was last seen by Dr Greenham on 27 July 1995 with a mild urinary tract infection.

15 In the meantime, the deceased had settled into her daughter's home. It is apparent from a wide range of letters and diary entries adduced in evidence at the trial that the deceased settled into a routine of accompanying her daughter on shopping expeditions and excursions, reading the newspapers, corresponding with her son in Sydney and keeping in touch with her grandchildren. Sunita was living at home with her parents; the deceased's grandson was married to Tracy and lived nearby.

16 The deceased also received lengthy letters from her son, Peter, concerning her investments. Wendy Thillainath said in evidence that her mother had impaired vision in one eye, with the result that the spectacle lens on that side was frosted. Wendy was accustomed to read most of the incoming letters to her mother. Wendy herself also wrote to her brother in Sydney so as to keep him informed about the circumstances in Perth.

17 It seems that as a consequence of the consultations with Dr Greenham, inquiries were made as to the prospects of the deceased being transferred to a retirement home. On 18 June 1995, the deceased wrote to her son in Sydney. She mentioned that she and Wendy had inspected the St Ives Retirement Home, which appeared to be "a very nice place". She went on to say:

"I also want to change my will and will leave you the main executor since you are doing the main business computing."

18 Peter McDonell said in evidence that the first indication that he had from his mother that she wanted to change her Will was by way of this letter dated 18 June 1995. He then spoke to his mother by telephone. In the course of that conversation, his mother told him that she wanted to give everything equally to he and his sister and to appoint him as the executor. He agreed with his mother to arrange for a new Will to be prepared by her solicitor, Mr Tim O'Brien, from Berri.

19 Peter McDonell wrote to Tim O'Brien on 11 July 1995 with the relevant instructions and in due course, under cover of a letter from O'Brien dated 14 July 1995, received an original of the proposed Will, plus two copies, together with instructions for signing.

20 A copy of the Will drafted by O'Brien was adduced in evidence. It provides for the appointment of Ian Peter McDonell as executor and for

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the deceased's estate to be divided between Peter and Wendy in equal shares. The defendant, Peter McDonell, sent the original Will, plus a copy, to Perth, under cover of a letter dated 19 July 1995 addressed to his mother and Wendy. He also enclosed the instructions for signing and suggested that the Will be executed in the presence of reliable witnesses, such as the local bank manager or accountant, rather than using neighbours. The same letter indicates that Peter would be travelling to Perth on 4 August 1995.

21 After the Will had been sent to Perth, Peter had a telephone conversation with his sister in which he was told that the deceased wanted her son and daughter to be joint executors. His mother then came to the telephone and confirmed that this was her wish. As a result of that conversation, Peter contacted the solicitor, O'Brien, by telephone and asked him to make the relevant amendment. O'Brien forwarded an amended copy of the Will to Peter in late July 1995. Peter understood from O'Brien that the amended Will, appointing he and his sister joint executors, had been sent direct to his mother by the solicitor.

22 In the meantime, steps had been taken in regard to arranging alternative accommodation for the deceased. On 19 June 1995, that is to say, at about the same time as the deceased gave instructions for the preparation of a new Will, the deceased and Wendy were visited at the Thillainath home by two members of the Aged Care and Assessment Team (known as ACAT) with a view to preparing an application for the deceased's admission into a hostel. The visitors were Marlene Nelson, a registered nurse who had been directly involved in aged care nursing for many years, and Carolyn Christmass, who was attached to the ACAT unit at Fremantle Hospital.

23 By a process of question and answer, an ACAT application form was completed, this being signed by Marlene Nelson and by the deceased herself on 19 June 1995. Clause 15 of the ACAT form provides for boxes to be ticked in respect of various domestic activities in the categories of "independent", "needs assistance" and "dependent". The boxes ticked by Marlene Nelson suggest that the deceased was independent in respect of bathing/showering, toileting, transferring to bed/chair, walking, use of telephone, reading, and writing. The form suggests that the deceased was always aware of place and time, was continent, was not given to wandering, or disruptive behaviour, although she did need assistance in respect of the use of private transport, bank and shop. She was dependent in regard to laundry, cleaning the house and use of public transport.

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24 Marlene Nelson noted that the deceased had had a cerebral aneurism and multiple TIAs, that is to say, transient ischaemic attacks. She had slurred speech, loss of vision in the right eye and a thyroidectomy in 1950. On that part of her form concerning her mental state, Marlene Nelson noted: "Alert - has some memory lapse. Oriented to time and place."

25 Carolyn Christmass added to the ACAT form this assessment:

"Mrs McDonell is an 87-year-old lady who moved to her daughter's house in Ardross 7 months ago following a stroke in Berri, SA. She has since had several TIAs, usually in the evening. These have had no major physical impact on her except for slurred speech and loss of vision in right eye. She still showers herself and ambulates somewhat unsteadily but slowly. She now feels she is getting too much work for her daughter and would like to move to a hostel."

26 The Christmass comments conclude with the comment: "NFA", which means that no further action was taken by any members of the ACAT unit in relation to the placement of the deceased in a nursing home, at least at the time the report was prepared.

27 I pause to note that, under cross-examination, Wendy Thillainath conceded that while the ACAT assessment was proceeding she did not express concern about her mother's mental state. Further, although at this time she was in the habit of writing to her brother, Peter, she did not write any letter to the effect that her mother lacked the capacity to make a new Will. Wendy Thillainath said in evidence that she made this point to her brother by telephone on Sunday, 23 July 1995. She said that her mother should not make a new Will and she wanted nothing to do with it.

28 Peter McDonell testified that he arrived in Perth on the afternoon of Friday, 4 August 1995. He went to his sister's house. Wendy Thillainath said in evidence that there was little mention of the Will, apart from Peter saying that it was the same Will as the deceased's earlier Will, but with the addition of himself as executor. At the trial, Peter disputed these assertions.

29 Peter said in evidence that on the next day, this being Saturday, he picked up his mother from his sister's home pursuant to an arrangement previously made. He took her for a drive and for a cup of tea at his motel towards the end of the afternoon. On the Sunday, he took his mother to two hostel establishments, Rowethorpe and another home called Braemar,

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so that his mother could see the facilities. This done, they had lunch on the waterfront at Fremantle.

30 While talking to his mother over the weekend, Peter ascertained that the Will had not been signed and he therefore suggested that he take her to her bank on Monday to have the Will witnessed by bank staff. He told his sister that this was what he proposed to do when he took his mother home on the Sunday evening. His sister said that she did not want another Will signed.

31 On Monday, 7 August 1995, Peter telephoned the Applecross branch of the National Australia Bank and arranged for two bank officers to be on hand to witness his mother's Will. When Peter arrived at the Thillainath home, he was told by Dr Thillainath that his sister had gone out and did not want to speak to him. Dr Thillainath said further that Peter would have to get his mother ready for the excursion. He also said that the deceased should not be signing a Will, although he did not say why.

32 I pause there to note that Dr Thillainath, in his evidence, described the deceased as an elderly lady who had become forgetful and was totally dependent for her daily functioning in regard to dressing, showering and personal care, although her motor and sensory functions were apparently intact. She was often restless at night and frequently wandered around the house, turning lights on and leaving doors open.

33 Dr Thillainath said that in the early hours of the morning of 7 August 1995, having been woken up by a noise in the house, he found the deceased, dressed in a light nightdress, standing at the back door. She appeared very agitated and confused and short of breath. She mumbled that someone was calling out to her. He conducted her back to her bedroom, but she continued to be restless. Dr Thillainath then discovered from a conversation with his wife that Peter McDonell was due to arrive to take Mrs McDonell to sign a new Will. Mrs McDonell had told him nothing regarding her Will, but he had seen and heard her tell the family repeatedly that it was "the same Will".

34 It was against this background, according to Dr Thillainath, that he had the conversation with Peter McDonell when the latter arrived at about 9.30 am to pick up his mother. Dr Thillainath said in evidence that he told his brother-in-law that Mrs McDonell was not capable of making a new Will with any true understanding and that it would be advisable to see her doctor, Dr Greenham, for an assessment. According to Dr Thillainath, Peter McDonell made no response to this suggestion, but simply spent the

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next 45 minutes dressing Mrs McDonell and getting her ready for her visit to the bank.

35 Dr Thillainath said further that shortly after Peter took his mother out to the waiting car, he returned to collect his mother's glasses which she needed for everyday use. Dr Thillainath gave him a pair of glasses, but he later realised that these were not Mrs McDonell's reading glasses, which had been left behind in her room. From his prior observations of the deceased, he believed that she had poor eyesight and could not read without her reading glasses.

36 Peter McDonell disputed this. He accepted in his evidence that Dr Thillainath did say that the deceased should not be signing a Will, but without going into detail. He said further that around the time he and his mother got into the waiting car, his mother told him that she needed her reading glasses and that she did not have them with her. She was wearing a pair of glasses at the time. He went back into the house, into his mother's room, and found the glasses where she told him they would be. He returned to the car with his mother's glasses and handed them to her. She was happy that this was the pair of glasses she wanted. He then drove his mother to the bank.

37 The defendant said in evidence that when he asked for the bank officer he had spoken to earlier in the day, a man came to the counter and introduced himself. They were taken to an interview room, where they were joined by a female member of the staff. He told the bank officers that he had come to the bank with his mother to enable her to sign her Will in front of appropriate witnesses. He had taken two copies of the Will into the bank with him. At that stage, another woman came into the room and told the man that there was a telephone call for him. While the man was absent, the deceased chatted with the other woman in the room. A short time later, the man returned to the interview room and called the woman out. They were both absent from the room for a few minutes. The man and the woman then returned to the room whereupon the man proceeded to ask the deceased a number of questions.

38 Peter McDonell said in evidence that the man asked his mother a question to the effect of whether or not she knew what she was doing at the bank. The deceased said in reply that she had come to the bank to sign her Will. He asked her other questions to the effect of whether she knew what assets she had, to which his mother responded that she owned shares. When the man asked how she was distributing her estate under the Will, the deceased's response was to the effect that she was

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distributing her estate to her daughter and her son equally. The man looked at the Will after speaking with the deceased. Peter McDonell himself did not play any part in the conversation between the man and his mother. He had pushed his chair well back from the table and was, in effect, an impassive bystander as the questions were asked.

39 After these exchanges, the deceased proceeded to sign both copies of the Will in the presence of the man, the woman and Peter McDonell. The bank officers - the man and the woman - then each signed each copy of the Will as witnesses. One copy of the Will was left in a safety deposit packet with the bank. This was done at the deceased's request, as it was her usual practice to keep important documents in a safety deposit packet at the bank. The other signed copy was kept by Peter McDonell himself.

40 The defendant said in evidence that at his mother's request he drove to a nearby shopping centre, where his mother bought him a shirt as a birthday present. They walked around the food hall area and had some lunch, and then went to a museum at Wireless Hill. When he took his mother back to his sister's home, the house was locked and silent, so he was obliged to drop off his mother at the home of Tracy Thillainath. The defendant was then obliged to leave for the airport in order to catch his flight back to New South Wales.

41 Evidence from other witnesses has a bearing upon these events. Dr Thillainath said that shortly after Peter McDonell and his mother left the Thillainath household he walked down to the National Australia Bank to attend to some business. He saw Peter McDonell and the deceased talking to a bank officer in a room. This prompted him to return home in order to telephone the bank officer. He told the bank officer that he was Mrs McDonell's son-in-law and that, in his view, Mrs McDonell was too old and mentally unfit to make a fresh Will. He acquainted the bank officer with the fact that he was a medical practitioner.

42 The two bank officers who acted as witnesses gave evidence also. Stephen Naughtin said that in August 1995 he was a consumer business officer, working at the Applecross branch of the National Australia Bank. Prior to that time, he had spent approximately three years in jobs which had involved the preparation and signing of documents, including loan and security documentation. He had witnessed Wills from time to time, although not frequently.

43 He said that he had not met either Mr Peter McDonell or his mother prior to 7 August 1995. He confirmed that he went to an interview room

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with Mrs McDonell and her son and with another bank officer in attendance - Sharon Alexander. A short time later, a customer services officer from the bank came in and called him to the telephone to speak to someone who was claiming to be Mrs McDonell's son-in-law. He spoke to a man on the telephone who introduced himself as Dr Thillainath and went on to say words to the effect that he, Naughtin, as a bank officer, did not have the medical capacity to allow Mrs McDonell to sign a Will. According to Mr Naughtin, he then told Dr Thillainath that he would ask Mrs McDonell the appropriate questions to make sure that she did understand what she was signing.

44 This telephone conversation prompted Mr Naughtin to call Sharon Alexander out of the interview room and to tell her about the conversation he had just had with Dr Thillainath. Sharon had just been speaking to Mrs McDonell and was of the view that there did not appear to be anything wrong with Mrs McDonell's understanding of what was going on around her. They agreed that Mr Naughtin would put questions to Mrs McDonell to make sure that she understood what she was doing. He had not seen anything in her speech or her demeanour which gave him any cause for concern about whether or not she knew what she was doing in signing the Will.

45 He and Sharon then returned to the interview room, where he proceeded to ask the deceased a number of questions. He remembered asking her whether she knew why she was at the bank and was told that she had come to sign a Will. He asked her about the contents of the Will and recalled being told that the Will was giving the estate to her son and her daughter equally. He and Sharon Alexander then had some general discussion with the deceased, which included reference to current affairs.

46 Mr Naughtin could not recall whether or not Mrs McDonell brought any glasses with her and he did not recall her reading the Will while she was in his presence. However, immediately after asking the deceased about the Will, he browsed through the Will to make sure that it matched up with what she had told him. He found that the description she had given was consistent with what he saw in the Will. The Will was then signed by the deceased and witnessed by Sharon Alexander and himself. Throughout the time that she was at the bank premises, the deceased appeared pleasant and did not appear to be under any stress of any sort. His recollection was that Peter McDonell said very little during the whole time that he was at the bank premises and all the conversation took place between Sharon Alexander, himself and Mrs McDonell.

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47 Sharon Alexander corroborated Mr Naughtin's account of what took place. Prior to working with the National Australia Bank, she had worked at the Commonwealth Bank for approximately 10 years. Prior to August 1995, she had obtained a good deal of experience in compiling loan and security documentation and having such documentation signed. She was conscious of the fact that documents had to be signed correctly to be effective. She recalled having a conversation with the deceased while Mr Naughtin was outside the room, during the course of which the deceased talked about Garden City and about current affairs.

48 From talking to the deceased, Sharon Alexander did not develop any concerns that she was not able to understand what she was doing when signing the Will. She was not rambling in her speech, nor did she seem to lose track of what was being discussed. She conveyed this assessment to Mr Naughtin upon being told that the deceased's son-in-law, Dr Thillainath, had asserted that the deceased was not fit to sign a Will. The arrangement was made that Mr Naughtin would ask various questions of the deceased concerning her ability to understand what she was doing in signing the Will. When they returned to the interview room, the deceased did not seem to have any difficulty answering any questions asked of her by either Mr Naughtin or by Ms Alexander herself. Her answers were clear and direct, she also seemed quite cheerful. Ms Alexander said that if she had been left with any doubts about Mrs McDonell's ability to understand what she was doing in signing the Will, Ms Alexander would not have witnessed the Will.

49 Peter McDonell said in evidence that within 24 hours of returning to New South Wales, he received a telephone call from his sister. She said that her husband, Aru, wanted to speak to him. The defendant was then informed by Dr Thillainath that the deceased was no longer welcome in his house and that he, Peter McDonell, should make arrangements to have her accommodated elsewhere. When his mother came to the telephone, he could tell from the tone of her voice that she was distressed. He reassured his mother that he would immediately make arrangements for her to move to Sydney.

50 It is material to note that the 1995 Will executed by the deceased is quite short. It consists of five clauses, covering two pages only and it is clear from the terms of the Will that the estate is to be divided between the deceased's son and daughter in equal shares. It is also material to note that in a letter dated 17 August 1995 from the deceased to her son, Peter, she provides her own, rather wry, commentary upon her son-in-law's displeasure. This letter strongly suggests that the deceased had a clear

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grasp of what was going on around her, notwithstanding her bodily ailments. On the other hand, it seems that the deceased made no note in her 1995 diary concerning the new Will.

51 In a letter written at about this time, the deceased told her son that she had decided to stay in Western Australia. It is quite apparent from that letter, that she had a clear recollection of her visit to Rowethorpe a month earlier and knew what the issues were in regard to her future accommodation. She apologised to her son for putting him to the trouble of making inquiries, but she now recognised that it would be unwise to "travel so far" with her medical history. These and other letters written at this time evidence a strong affection for her son and a general reliance upon his judgment and ability to make sensible decisions.

52 Wendy Thillainath continued to write to her brother. By a letter dated 26 September 1995, she reported to him that Mrs McDonell had been taken to the Rowethorpe hostel a few days earlier. The carers said, "She is settling in well and she really does seem to be - chats to several ladies and played ten-pin bowls yesterday." The deceased was said to be comfortable and contented. It is significant that in this letter and other letters written during this period, Wendy Thillainath does not suggest that there was any impropriety involved in the events of 7 August 1995 and no reference is made to the deceased having been asked or required to sign a fresh Will by her son at a time when she lacked the capacity to execute such an instrument.

53 On 8 October 1995, the deceased was admitted to hostel accommodation at the Braemar Village. A letter dated 10 October 1995, from Wendy to Peter, indicated that the move had been accomplished successfully and that Mrs McDonell was housed in comfortable conditions. Importantly, for present purposes, the manager of the Braemar Village, Cheryl Smith, commenced keeping integrated progress notes as a record of the daily care of the resident. These notes are kept to monitor the patient's daily care so that any needs the patient may have can be identified and attended to, and so that all staff are aware of the residents' needs.

54 The first occasion on which Cheryl Smith met Mrs McDonell was 8 October 1995. The entry for 8 October was based upon her reading of the ACAT report prepared in June 1995, as well as an interview with Mrs McDonell with her daughter. The entry made for 8 October 1995 is an overall summary of Mrs McDonell's care needs. The notes include reference to some short-term memory loss and confusion. There is also

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reference to her speech being slurred and difficult to understand. Nonetheless, it is apparent from the notes that there is no explicit reference to any absence of mental capacity and it is significant that arrangements were made for newspapers to be provided to her.

55 The practice at Braemar Village was for a resident care plan to be prepared shortly after admission. Cheryl Smith prepared such a plan for Mrs McDonell dated 17 October 1995. The resident care plan is comprehensive and indicates that Mrs McDonell was accustomed to attend to many of her own requirements. The plan contains references to the deceased's slurred speech. The form includes the comment: "Resident's level of cognitive function is very variable and changes day-to-day, has very frequent mild TIAs which may play a part in this." The form does not contain any direct suggestion that the deceased was in an advanced state of dementia. The form is directed principally to providing various levels of assistance to an elderly and somewhat infirm female resident of the Braemar Village.

56 On 7 November 1995, Cheryl Smith prepared a personal care assessment instrument. The assessment made of the deceased was that she required low care. From Cheryl Smith's experience, residents who had altered mental states or cognitive deficiencies usually rated "intermediate" or "high". The most relevant questions concerning her mental state are contained in questions 12 to 16 on the relevant form and when the scores attributed to Mrs McDonell in that area of the form are compared to standard ratings, it does not seem that she had a significant cognitive deficiency.

57 On 8 November 1995, Cheryl Smith made a lengthy summary in the integrated progress notes which underpinned the data reflected in the personal assessment instrument. The summary indicates that the deceased was certainly in need of assistance, but does not suggest that she had lost her capacity to perform domestic tasks or to understand what was going on around her. There are, however, references to short-term memory loss, and to some wandering.

58 Cheryl Smith said in evidence that it was the standard practice at Braemar Village that if a resident exhibited any behavioural problems or characteristics which needed further investigation, she would normally contact the resident's general practitioner about the possibility of referring the resident to a psycho-geriatric specialist. If a referral was made to a specialist from there, the co-ordinator of the psycho-geriatric unit in Alma Street, Fremantle, would normally contact the Village manager and

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discuss the matter. The specialist, a community psychiatric nurse and a social worker would attend at the hostel to interview the resident. Cheryl Smith never had any reason to raise any concerns about such a referral with Mrs McDonell's general practitioner.

59 Communications between Wendy Thillainath and Peter McDonell continued. It is material to note that in a letter dated 7 November 1995, written at the same time as the personal care assessment instrument was being prepared, Wendy Thillainath provided a graphic description of her mother's situation. She refers to an item of furniture which stands in front of the large French windows and "Mum can use it to read the newspaper and write letters on." In a letter to her brother dated 28 December 1995, Wendy refers to her mother making a supreme effort to write her Christmas cards. These letters strongly suggest that, notwithstanding her various disabilities, in the months following the execution of her Will, the 87-year-old Mrs McDonell was still actively engaged in reading and writing, and was able to maintain her interest in current affairs.

60 Peter McDonell continued to correspond with his mother after she moved to Braemar Village and updated her from time to time about her business affairs. The tone of these letters is consistent with the earlier pattern of correspondence and suggests that the deceased was able to form a clear impression of what was going on around her.

61 According to Peter McDonell, his mother continued to correspond with him into early January 1996. By this time, phone conversations with his sister had a tendency to deteriorate into arguments. He continued to manage his mother's financial affairs and arrange to have his mother's tax returns done by her accountant in Berri. He continued to have discussions with his mother by telephone about her financial affairs. This would normally relate to matters such as prospective investments and taking up options in respect of shares. In fact, there was very little change in relation to his mother's financial affairs between the time she signed the Will and her death.

62 In early March 1996, Peter McDonell travelled to Perth to visit his mother in hospital, where she was recovering after a fall. He only had short conversations with her during the course of this visit. According to him, after March 1996 her conversation was faltering and she would be slower to respond. However, she could still hold a conversation. By this time, she had become a permanent resident of Braemar Nursing Home.

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63 The exchanges of correspondence between brother and sister suggest that in mid-1996 a dispute arose as a result of Wendy Thillainath taking steps to have her mother's investments transferred to the CHESS system. There is no need to examine this issue in any detail. Wendy Thillainath said in evidence that it was at about this time, in mid-1996, that she read the Will executed by her mother on 7 August 1995 and discovered that her mother's estate was to be distributed equally between her son and daughter, with the result that, unlike the 1989 Will, the grandchildren would be excluded.

64 It is significant that in a letter to her brother dated 18 June 1992, Wendy Thillainath said this:

"Mum is well apart from a few mild TIAs and slight confusion at times. In between and when Aru or I visit (almost every day) she is quite alert and remembers most things and is interested in everything and contented with her life at Braemar."

65 Later in the same letter, Wendy added:

"Mum has been able to write her name clearly and understands and reads what she has signed. She has signed her own application for the CHESS sponsorship."

66 On 14 August 1996, Wendy wrote to the National Australia Bank seeking to close out various fixed interest investments and to have the money divided equally between her three children and Peter's two children. She told the National Australia Bank that in doing this she was acting on her mother's instructions. Wendy's children each received a cheque for $15,000. Wendy Thillainath said in evidence that she believed she was doing the right thing. She directed the bank to forward the relevant cheques to her mother at Braemar Nursing Home.

67 The deceased died a short time later on Monday, 2 September 1996. A further dispute then took place concerning the funeral arrangements as a consequence of which Mrs McDonell was cremated without Peter McDonell being in attendance. It was against this background of acrimony, that Peter McDonell applied to obtain probate of the 1995 Will on his own behalf, recognising that his sister, who had been named as a joint trustee, would not join in the application for probate. In due course, the plaintiffs pressed a claim against the estate for payment of the gifts of $15,000 allegedly made by the deceased shortly before she died. When these claims were contested the present proceedings were commenced.

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68 I must now turn to the medical evidence bearing upon the deceased's capacity to make a valid Will.

69 Dr Norman Marinovich gave evidence on behalf of the defendant. He is a visiting consultant physician and visiting geriatrician with the Fremantle Hospital and Health Service and has had a lengthy experience in the field of geriatrics.

70 Dr Marinovich did not recall having met the deceased personally, but was able to say that she was under the care of his medical team at the Fremantle Hospital and Health Service from early 1996 onwards. When he was asked by the solicitors for the defendant to provide observations in relation to her testamentary capacity he reviewed certain materials upon the Fremantle Hospital file, medical notes relating to the deceased dated 9 March 1996 and a copy of the 19 June 1995 ACAT report. He recognised the signature on the ACAT report as being that of Marlene Nelson who he knew to be an experienced and competent registered nurse who had extensive experience in geriatrics. He said in evidence that he attached importance to the ACAT report as that was the most proximate, definitive medical assessment made of the deceased in mid-1995, this being a report prepared by a registered nurse who, to his personal knowledge, was competent and well-qualified to make such a report.

71 Dr Marinovich submitted a written report dated 16 July 1998 to the defendant's solicitors. He noted that the ACAT report of 19 June 1995 indicated that there was no significant impairment of higher intellectual function. Dr Marinovich went on to say that it was unlikely that the deceased's mental state would have deteriorated sufficiently by 7 August 1995 to the extent that she was mentally incapable of understanding what she was signing. This is supported by the documentation in her file at Fremantle Hospital; that as late as March of 1996 she was probably deemed competent to make decisions regarding her personal affairs. In Dr Marinovich's view, it was likely that her intermittent severe memory lapses and the gradual deterioration of her higher function were due to recurrent small strokes.

72 In his evidence at the trial, Dr Marinovich drew attention to a passage in the medical notes of 9 March 1996 on the Fremantle Hospital file stating that Mrs McDonell was "alert/orientated". He said that this notation was, in his opinion, consistent with the deceased having the mental capacity to understand a document she was signing in August 1995. From his own experience, an assessment such as that referred to on

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9 March 1996 would encourage medical staff to leave personal decision-making up to the individual patient.

73 Dr Marinovich was of the opinion that Mrs McDonell developed an Alzheimer's type condition some time prior to the beginning of 1996, which would have caused a gradual deterioration of her higher intellectual function. In addition, she had also suffered from recurrent small strokes prior to and after the beginning of 1996. However, he did not believe that this would have affected Mrs McDonell's ability to understand the nature and effect of a document she signed in August 1995. He also said in evidence at the trial that in his view if an elderly person such as the deceased could use the telephone and read and write, this would suggest that she did not have any significant impairment of her higher intellectual function. Strokes have a physical manifestation, but do not necessarily interfere with the higher intellectual function. He noted also that the symptoms of the Alzheimer condition are manifested in different ways, depending on the part of the brain affected.

74 When Dr Marinovich was cross-examined about certain passages in the resident care plan (prepared after the Will was signed) which were arguably inconsistent with passages in the ACAT report - especially a passage in the resident care plan suggesting that the "resident's level of cognitive function is very variable" - Dr Marinovich observed that there was a possibility of confusion or disorientation arising from the fact that the deceased was now in a different environment. These supposedly contradictory passages did not cause him to change the opinion he had expressed in his written report dated 16 July 1998. He observed also, in the course of re-examination, that if evidence from bank officers who were witnesses to the Will established that the testator had said that she was giving her estate to her son and daughter, then this would indicate that she understood the position she was trying to bring about by executing the Will.

75 In the course of his evidence, Dr Marinovich also commented upon views expressed by Dr Chong Boon Loke, another expert called by the defendant, and upon views expressed by Dr R Clarnette, a medical practitioner who gave evidence on behalf of the plaintiffs. In this context, Dr Marinovich was prepared to accept that symptoms of senile dementia evinced by the deceased could be referable to cerebrovascular causes and to the onset of the Alzheimer's condition at the same time, this being not uncommon in an elderly patient towards the end of her life. He did not, in general terms, disagree with the relevant medical concepts described by Dr Clarnette, but he did not agree that the deceased did not have sufficient

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capacity and competence to make financial decisions in August 1995 and, notwithstanding the views expressed by Dr Clarnette, he stood by the views he had previously expressed.

76 Dr Marinovich also was asked to comment upon a letter dated 17 September 1998 directed to him by Dr James Kaye Greenham in which Dr Greenham said that he was in little doubt that the deceased was suffering from dementia and on many occasions would have been incapable of understanding, let alone witnessing or signing, documents. Dr Marinovich contacted Dr Greenham by telephone to discuss the matter, but nonetheless confirmed the opinion he had previously set out in correspondence with the defendant's solicitors based upon the Fremantle Hospital and Health Service files.

77 The plaintiffs' solicitors engaged Dr R M Clarnette, a consultant physician with the Department of Rehabilitation and Aged Care, to prepare a report bearing upon the matters in issue between the parties. He is a graduate of Monash University in medicine and has obtained additional qualifications and experience in Australia and overseas in the field of geriatric medicine. His report, dated 2 June 1998, reveals that he was asked to provide an opinion on the case because he is a consultant physician in geriatric medicine and runs a memory clinic in the north metropolitan health region. The memory evaluation unit specialises in the assessment and treatment of older adults with memory loss. He also leads a team of research staff engaged in testing new drugs for Alzheimer's disease.

78 Dr Clarnette's report dated 2 June 1998 summarises the medical history of Rita McDonell and canvasses various considerations relevant to the matters in issue.

79 In his summary, Dr Clarnette says that the information points to the fact that Mrs McDonell's cognitive state was significantly impaired and he suggests she would have not been found capable of making financial decisions or of testamentary ability on a formal capacity assessment. He goes on to say that he believes also that during lucid moments which occur even in well-established dementia, it is likely that a lay person would believe that a person such as Mrs McDonell had the capacity to give instructions making gifts of money.

80 Dr Clarnette went on to make some further observations in a later report dated 11 September 1998. By this time, Dr Clarnette had been provided with additional information, including an affidavit by Mr Peter

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McDonell to which was exhibited the ACAT report and the report from Dr Marinovich commenting upon the ACAT report. The affidavit also contained two further affidavits of the bank officers who witnessed the deceased's Will. Against this background, Dr Clarnette said that the additional information "does cast some doubt over my initial conclusions, however there are grounds for questioning the veracity of the newly presented information". He then went on to make some further observations, including reference to Dr Marinovich's report of 16 July 1998. Dr Marinovich had indicated that he felt that the memory lapses and gradual deterioration of her higher function were due to recurrent small strokes. Dr Clarnette said that from an epidemiological point of view memory lapses are more likely to be due to degenerative dementia, such as Alzheimer's disease.

81 Dr Clarnette noted further that the affidavit of due execution by Sharon Alexander contained evidence that Mrs McDonell may have had testamentary capacity on the day she signed her last Will and testament. He observed that a capacity assessment for the purpose of providing evidence for a court is not a simple process and he doubted that a lay person had the skill to undertake such an assessment, with the result that little weight should be attached to her view of the matter. He therefore did not consider that the affidavit contained any useful evidence of Mrs McDonell's testamentary capacity.

82 Dr Clarnette went on to say: "This is not to say that on the day she signed her Will she did not have testamentary capacity, however the affidavit does not specifically support this notion." He referred to Dr Greenham's report to the effect that Mrs McDonell was suffering from increasing dementia. Dr Clarnette said: "It needs to be stated that Dr Greenham does not offer any formal diagnostic criteria to support this view which is in keeping with all of the documentation I have available to me regarding Mrs McDonell."

83 Dr Clarnette then went on to say:

"In summary, a superficial reading of the documentation now made available to me in correspondence of 21 August 1998 does indicate that my conclusions in my original report need to be reconsidered, however careful appraisal of these new reports raises questions about their validity and the ability of those who made the comments to make assessments of mental state as they have. The evidence available to me is that Mrs McDonell had an altered mental state, again I state that this was likely to be

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due to a dementia syndrome and on epidemiological grounds the most likely cause was a primary degenerative dementia such as Alzheimer's disease. Her testamentary capacity therefore has to be questioned and I believe my previous conclusions are still relevant to this case."

84 Under cross-examination, Dr Clarnette agreed that he had not seen the deceased. What was lacking in the range of evidentiary materials was a formal assessment of dementia syndrome, but there were some indicia of dementia. In his view, the deceased's capacity to make a Will in a formal sense was open to question. The ability to write a letter did not preclude a diagnosis of dementia being made. Nonetheless, the letters written by the deceased tended to support the view that the deceased may have been capable of signing a new Will in August 1995. He accepted that to some extent his original appraisal of the deceased had been revised as a consequence of the further evidentiary materials placed before him, including the report received from Dr Marinovich.

85 The defendant engaged Dr Boon Loke to prepare a report bearing upon the testamentary capacity of the deceased. Dr Boon Loke is a registered medical practitioner with substantial experience and qualifications in the treatment of psycho-geriatric conditions. He is in full-time private practice in general adult psychiatry. He is a Fellow of the Royal Australia and New Zealand College of Psychiatrists and has had extensive experience working as a consultant psycho-geriatrician at Royal Perth Hospital and at North Metropolitan Health Service. His experience extends to assessment and provision of medico-legal reports on elderly individuals' testamentary capacity, power of attorney and other mental capacities.

86 He prepared his report dated 19 July 1999 on the basis of a wide range of evidentiary materials bearing upon the deceased's condition, including her own handwritten letters. He noted that Mrs McDonell had her first documented minor stroke on 23 August 1993. Since then she had fluctuating mental state and intermittent memory impairment which were indicative of recurrent small strokes. In his opinion, at the time of execution of her Will on 7 August 1995, Mrs McDonell probably had mild vascular dementia with predominant deficits in her non-dominant hemisphere resulting in dyspraxia and spatial orientation.

87 He went on to say that while Alzheimer's disease is the most common cause of dementia he did not agree that the deceased's diagnosis should be based on epidemiological grounds neglecting the obvious

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clinical evidence that she had cerebrovascular disease which predominantly affected her non-dominant hemisphere. He criticised the use made of the global deterioration scale by Dr Clarnette, saying that in his view it was not appropriate in estimating the severity of Mrs McDonell's vascular dementia and in assessing her testamentary capacity.

88 Dr Boon Loke went on to say that the deceased's functional impairment and dependency in August 1995 should not be equated to her mental capacity at the time. The former was more related to her dressing dyspraxia from non-dominant hemisphere strokes, physical frailty and failing vision. The evidentiary material suggested that she was probably aware of the nature and extent of her estate, her potential beneficiaries and the effect of her Will and the distribution of her estate upon her death. He could not identify any evidence of a major psychiatric disorder, such as severe depression or psychotic illness, that would unduly influence her decision-making in the execution of her Will. He was therefore of the opinion that Mrs McDonell had testamentary capacity on 7 August 1995.

89 I digress briefly to note that Dr Boon Loke supplemented his written report by further evidence-in-chief. He referred to various passages in the deceased's letters which indicated that the deceased had a reasonable memory of events relevant to her situation in mid-1995 and subsequent to the execution of the Will, all of which suggested that her memory functions were reasonably preserved. He was cross-examined at considerable length, but did not resile from the views he had expressed. He recognised, consistently with the views expressed by Dr Marinovich, that the deceased might have been experiencing some diminution in her mental capacity as a result of a combination of cerebrovascular incidents and Alzheimer's disease at the same time. He observed, however, that he did not see a pattern of decline in the condition of the deceased which conformed to the usual pattern of decline associated with Alzheimer's disease.

90 It is against this background that I must now turn to certain principles of law bearing upon the matters in issue between the parties.

91 I have already noted that the plaintiffs' statement of claim included allegations of undue influence, unconscionable conduct and misrepresentation. Claims for relief based upon these allegations were abandoned at the trial, with the result that the dispute between the parties was essentially confined to an issue concerning the deceased's capacity.

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92 The plaintiffs alleged in par 8 of the statement of claim that on 7 August 1995 the deceased was mentally incapable of understanding the nature and effect of the Will executed by her on that day being not of sound mind, memory and understanding by reason that she then suffered from primary degenerative dementia in at least a moderately severe cognitive decline stage.

93 The statement of claim contained various other allegations bearing upon the circumstances in which the disputed Will was brought into existence and events surrounding execution of the Will. For example, the plaintiffs allege that at all material times the deceased had poor eyesight and could only read with the aid of prescription reading lenses. When she attended the bank to execute her Will, the deceased did not have her prescription reading lenses. It seems that allegations of this kind were principally directed to the claim for relief based upon undue influence or unconscionable conduct, rather than being concerned with the question of capacity, nonetheless, for the sake of completeness, I will keep these allegations under notice.

94 The defendant, by its reamended statement of defence, denied par 8 of the statement of claim and said that at the time of making the 1995 Will the deceased had testamentary capacity. The defendant pleaded that the deceased understood her actions, was aware of and capable of weighing up claims to her estate to which she ought to give effect and understood the effect of the dispositions being made by the 1995 Will. The defendant pleaded also that the Will was executed by the deceased voluntarily and without any undue influence or unconscionable conduct by the defendant. The defendant denied that the deceased did not have her prescription reading lenses with her at the time she attended the bank to execute her Will on 7 August 1995 and said further that the deceased read over the Will prior to executing the same, using the proper reading lenses. The defendant denied that the plaintiffs are entitled to the relief sought or any other relief.

95 Order 73 of the Supreme Court Rules deals with probate proceedings. By O 73 r 16, a party shall not plead that the testator did not know and approve of the contents of the Will in question unless the party specifies the nature of the case on which he intends to rely, including a case that at the time of the execution of the Will the testator was not of sound mind, memory and understanding. Questions of testamentary capacity have to be determined by the law of the domicile of the testator at the time of the making of the Will: "Williams on Wills" (5th ed) 23. In the present case, I proceed upon the basis that the testatrix was domiciled

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in Western Australia at the time of her death, but I doubt that anything turns upon this point.

96 It must be shown that the testatrix was of sound disposing mind at the time when the Will was made. The law requires that there should be sound disposing mind both at the time when the instructions for the Will are given and when the Will is executed, but it would appear that if the Will is shown to have been drawn in accordance with instructions given while the testatrix was of sound disposing mind, it is sufficient that, when she executes it, she appreciates that she is being asked to execute as her Will a document drawn in pursuance of those instructions, though she is unable to follow all its provisions: Williams (supra) at 24.

97 In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said at 565 that in order to exercise the power of disposition by the execution of a Will a testator must understand the nature of the Act and its effects; understand the extent of the property of which he is disposing; 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 delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

98 The mere fact that that testator was eccentric or was subject to one or more delusions is not, of itself, sufficient. It is not necessary that he should view his Will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple form. In deciding upon the capacity of the testator to make his Will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. In other words, his capacity may be perfect to dispose of his property by Will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.

99 I note in passing that counsel for the plaintiffs invited the Court, in the circumstances of the present case, to give particular weight to a passage from the judgment of Cockburn CJ at 569 in which the Chief Justice indicated that the standard of capacity in cases of impaired mental power is the capacity on the part of the testator to comprehend the extent

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of the property to be disposed of, and the nature of the claims of those he is excluding.

100 The approach reflected in these authorities has been approved by the High Court. In Bailey v Bailey (1924) 34 CLR 558, an aged testator suffering from pneumonia gave instructions to a solicitor to prepare a Will for him. Three days later, he signed the Will with a mark, being then unable, through weakness to write his name. The High Court held that the propounders of the Will had established a prima facie case of testamentary capacity which had not been displaced, and therefore that the Will was valid. Knox CJ and Starke J approved the reasoning in Banks v Goodfellow (supra) at 566. Isaacs J set out, at 570, a number of "working propositions" derived from the decided cases.

101 Isaacs J noted that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. This onus continues during the whole case and must be determined upon the balance of the whole evidence. The proponent's duty is, in the first place, discharged by establishing a prima facie case, that is to say, one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator. 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. 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.

102 The learned Judge went on to cite as instances of material circumstances (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; (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. Once the proponent establishes a prima facie case, then the burden of proof lies upon the party impeaching the Will to show that it ought not to be admitted to proof.

103 Isaacs J said further that in order 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 the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. While the opinions

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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. Where instructions for a Will are given on a day antecedent to its execution, the former is by long established law the crucial date.

104 The reasoning of the High Court in Bailey v Bailey (supra) suggests that where there are no suspicious circumstances, the requisite knowledge and approval of the testator will be presumed by the Court from the due execution of the Will. Also see West Australian Trustees v Holmes [1961] WAR 144.

105 Where in the opinion of the Court circumstances exist which give rise to a suspicion that the terms of the Will do not accord with the intention of the testator, the Court will not admit the Will to probate unless the propounder removes the suspicion and affirmatively proves that the contents of the Will were known to and approved by the testator. The suspicion of the Court will always be aroused where the testator was blind, illiterate or mentally or physically enfeebled or the Will had been prepared by a person who, or whose child, benefited under it. The degree of suspicion will vary with the circumstances of the case. In some cases, the suspicion will be slight and easily dispelled, but in others it may be so grave that it can hardly be removed: McCredie, "Wills, Probate and the Administration of the Estates of Deceased Persons in Victoria", (2nd ed) par 118.

106 Considerations of this kind were reviewed by the High Court in Nock v Austin (1918) 25 CLR 519. In that case, the Will had been prepared by the plaintiffs, one of whom was a solicitor, and under which both plaintiffs received large benefits. The High Court held that the decision in favour of the plaintiffs should not be disturbed as the trial Judge had sufficiently directed his mind to the suspicious circumstances and been satisfied by the plaintiffs that the testator knew and approved of the contents of the Will.

107 Isaacs J said at 528 that in general where there appear to be no circumstances exciting suspicion the mere proof of the testator's capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. If the Court is not judicially satisfied that the

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document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.

108 The learned Judge went on to say that the circumstance that a party who takes a benefit wrote or prepared the Will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the Will. But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. Nor does the rule require, as a matter of law, any particular species of proof to satisfy the onus. The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it.

109 It will also be useful to refer to Worth v Clasohm (1952) 86 CLR 439. In that case, a widow died at the age of 86, having executed a Will nine months earlier. The trial Judge found that the deceased was suffering from senile degeneration and was subject to a delusion that people were stealing her possessions and that her food was being poisoned by certain relatives. The Will was drawn by the plaintiff who was a solicitor and nephew of the deceased and a beneficiary named in the Will. The trial Judge recognised that the circumstances were such as ought to excite the suspicion of the Court, and that he ought not to pronounce in favour of the document unless a vigilant and zealous examination of the evidence satisfied him that it expressed the true will of the deceased.

110 The trial Judge felt at the end of the case a sufficient doubt to refuse probate of the Will and, in doing so, gave some weight to the evidence of a Dr Goode, a general practitioner, who had treated the deceased for various ailments and thought that her mental condition was poor because she kept on repeating herself and talked incoherently.

111 The High Court allowed an appeal against the ruling of the trial Judge and, in doing so, noted that Dr Goode had no special qualifications in mental disorders and did not profess to have made any efforts to test the testatrix for her capacity to understand business matters or to weigh rationally considerations of the kind which are material in deciding upon testamentary dispositions. The High Court acknowledged that the evidence of Dr Goode and another witness should properly be regarded as raising a doubt as to the validity of the Will. Nonetheless, in the final analysis, the High Court considered that there were a number of features which in combination decisively outweighed the causes of the trial Judge's

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doubt. These features included the character of the dispositions made by the Will and by three earlier Wills, the impression of the testatrix depicted by various competent observers, including the fact that she seemed to take an intelligent interest in and to appreciate fully everything that was said to her. The evidence did not identify any deficiency of memory, or any failure to appreciate the extent or nature of her property or the claims of her relatives.

112 The High Court went on to say that 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. 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 placed 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 in the Will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. It appeared to the High Court that there was ample ground for that belief in the case in question.

113 I note also that in Silvester & Ors v Tarabini & Ors, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996 Anderson J considered that mere proof of a serious illness will not necessarily lead to a conclusion of want of testamentary capacity. There must be evidence that the illness affected the testator's mental faculties to a degree sufficient to deprive the testator of testamentary capacity.

114 It is clear that the Will should accord with the testatrix's instructions, but where an intermediary is involved in conveying the instructions to the solicitor drawing the Will, the Court should be satisfied that the instructions were unambiguous, clearly understood, accurately conveyed to the solicitor and that there is no ground for suspicion: Battan Singh v Amirchand [1948] AC 161. If instructions are provided through an intermediary, evidence to the effect that the testatrix read the Will or had the Will read to her is generally required: Parker v Felgate (1883) 8PD 173.

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115 It follows from this review of the relevant principles that although the pleaded claim of undue influence or, alternatively, unconscionable conduct was abandoned by the plaintiffs at the trial, I must, nonetheless, continue to give careful consideration to the various facts and matters set out in the statement of claim which might otherwise have been relied upon by the plaintiffs in support of these claims, for it is clear from the decided cases that where circumstances exist which might excite suspicion or point to a degree of inordinate influence upon the testator by a person taking a benefit under the Will, the Court is required to be vigilant as to whether the testator knew of and approved the contents of the Will in question.

116 It also follows from the decided cases that the burden of proof rests upon the defendant, Peter McDonnell, as the party obliged by these proceedings to contend that the 1995 Will should be proved in solemn form. He must satisfy the Court upon the balance of probabilities that the deceased was of a sound disposing mind, both at the time when the instructions for the Will were given and when the Will was executed.

117 The plaintiffs assert that, in the circumstances of the present case, there are various matters exciting suspicion that the deceased was mentally incapable of understanding the nature and effect of the 1995 Will. When she allegedly gave the instructions to her son, the defendant, to arrange for the preparation of a new Will, she was elderly and in poor health. She had a medical history of cerebral aneurism, admission to hospital for confused mental state in Berri and had experienced a number of strokes. She was blind in one eye and partially deaf.

118 Further, on the defendant's case, the deceased's instructions were reflected in a letter dated 18 June 1995 referring to a wish to appoint him as executor, but there is no documentary evidence available of her wish to alter the dispositions effected by her 1989 Will so as to establish her son (Peter) and her daughter (Wendy) as the sole beneficiaries of the Will in equal shares. It is apparent that the deceased's instructions were conveyed to the solicitor in Berri, Mr O'Brien, by an intermediary - her son - who eventually received benefits under the Will. There is no documentation (other than the Will itself) reflecting the deceased's instructions.

119 I consider that these facts and matters can be characterised as circumstances exciting suspicion and I am therefore required, consistently with the authorities and decided cases mentioned earlier, to exercise vigilance in reviewing the circumstances of the case. Nonetheless, as noted by Isaacs J in Nock v Austin (supra), in seeing that the case in

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favour of the validity of the 1995 Will is fully proved, the rule requiring vigilance should not be regarded as introducing an inevitable disqualification. The decided cases show that a residual doubt is not enough to defeat the claim. The requirement is that the propounder of the Will remove the suspicion and prove affirmatively by clear and satisfactory evidence that the testatrix knew and approved of the contents of the Will.

120 In my view, there is no evidence to suggest that the mental condition of the deceased changed markedly between the date on which she gave the instructions in June and the occasion a few weeks later when she executed the Will on 7 August 1995. The evidence must be reviewed by paying particular attention to facts and matters bearing upon her mental state in the weeks preceding 7 August 1995 and on the day in question.

121 I take account of the fact that Dr Dunn and Dr Greenham both harboured reservations as to the deceased's capacity to manage her affairs in the period preceding her execution of the 1995 Will. I must keep in mind, however, that these two medical practitioners did not have any special qualifications or experience in regard to the assessment of mental disorders and nor did they conduct any tests of the deceased's situation in that regard. I must also keep in mind that the deceased had demonstrated through her correspondence an ability to keep up with current affairs and her financial circumstances. She read the newspaper on a regular basis and I must give some weight to the testimony of the defendant that he talked to his mother about such matters by telephone in the period preceding execution of the Will. The plaintiff, Wendy Thillainath, conceded, both in her testimony, and in letters written in 1995, that her mother was continuing to take an interest in such matters.

122 In mid-1995, steps were taken to obtain hostel accommodation for the deceased. An ACAT report was prepared by two experienced members of the ACAT team which drew attention to physical problems and problems with cerebrovascular accidents, but did not clearly delineate any specific problem with dementia or any inability to conduct coherent conversations. The deceased was thought to be alert, and oriented to time and place.

123 The deceased's son took his mother to her own bank at Applecross for the signing of the 1995 Will. This was carried out in the presence of two experienced bank officers. The bank officers in question, Sharon Alexander and Stephen Naughtin, were put on notice that there might be some question as to whether the deceased had capacity to make her Will,

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because Dr Thillainath spoke to Mr Naughtin by telephone and raised this issue. Accordingly, the bank officers who witnessed the Will were alert to such an issue and there is extensive evidence before me that appropriate inquiries were made of the deceased in order to ascertain whether she knew why she was at the bank, what she had to do there, what her estate consisted of and to whom she was giving the estate. Stephen Naughtin gave evidence that she said in answer to his questions that she was dividing her estate between her son and her daughter and he himself, by reading the Will, was able to establish that this was so.

124 I will pause at this point to make a number of specific findings of fact concerning the events of 7 August 1995. I am satisfied that the deceased was equipped with her reading glasses when she visited the bank. She was familiar with the contents of the Will and knew that it provided for her estate to be divided between her son and daughter in equal shares. I accept the evidence given by each bank officer in its entirety, and therefore find that the deceased answered the questions put to her in the manner described by those witnesses and executed the disputed Will in their presence without being subjected to any coercion by her son.

125 Correspondence between the defendant and Wendy Thillainath after the Will had been executed shows that the deceased had a recollection of what had taken place and a clear grasp of reality. The medical evidence suggests that it was not until March of 1996 that the condition of the deceased began to decline to any significant extent.

126 I pause to say that in assessing the credibility of the various witnesses, I am obliged to take account of certain other matters. The evidence of the defendant established that he consistently attended to his mother's affairs and this is borne out by the contemporary correspondence. There was nothing in his demeanour or in the evidence he gave to suggest that he was minded to exercise any undue influence and it is significant that this was not alleged against him in the period leading up to and shortly after execution of the Will.

127 It is true that Dr Thillainath and other members of the Thillainath family commented upon the deceased's alleged lack of capacity, but in assessing their credibility in that regard I must take account of the fact that 12 months after the Will was executed Wendy Thillainath wrote a letter to the National Australia Bank in which she represented that at her mother's request certain cash distributions were to be made to members of the deceased's family circle. The clear implication of this letter is that the

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deceased was still thought to have sufficient mental capacity to give an instruction of that kind. If that were not the case, then Wendy Thillainath was apparently prepared to misrepresent the situation consciously. Either way, this incident requires me to treat the evidence given by members of the Thillainath household with caution. I note also that in a letter dated 16 May 1996 (nine months after the Will) Wendy Thillainath noted that the deceased was sometimes quite confused, but other times perfectly lucid. I have already drawn attention to a similar letter dated 18 June 1996.

128 I underline these observations about the Thillainath family by reference to the evidence given by Sunita Thillainath, a grand-daughter of the deceased and one of the beneficiaries named in the 1989 Will. Sunita was cross-examined in detail about the part she played in trying to enforce her entitlement to the gift of $15,000 supposedly made by her grandmother shortly before she died. Sunita gave a series of evasive answers to the question of whether she would have taken the money if she believed her grandmother had lost her faculties. She eventually replied to this effect: she did not believe her grandmother had lost her mental faculties totally. "I thought she was still capable of giving gifts to people."

129 This answer did not sit comfortably with other evidence given by Sunita to the effect that 12 months earlier - at the time the Will was signed - the deceased seemed forgetful and did not seem to know how to communicate with the people around her. I found Sunita to be an unreliable witness, and attached little weight to evidence given by her to the effect that her grandmother lacked the mental capacity to make a valid Will.

130 When one reviews the expert evidence of the medical practitioners, I am conscious of a considerable difference of opinion. Most of the medical evidence is ex post facto. The evidence at about the time the Will was made, namely, the ACAT report and assessments made as a consequence of a home visit, suggests that the deceased did have problems, but not of a serious nature.

131 I note also that the opinion of Dr Clarnette was somewhat equivocal. He gradually changed his position as further information was provided to him, especially when it became apparent that Dr Marinovich had prepared a written report on the condition of the deceased. On balance, I am inclined to prefer the evidence of Dr Loke. He was positive in his diagnosis that confusional states that the deceased suffered were due to

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her cerebrovascular episodes and were not of an epidemiological nature. I attach a good deal of weight to the opinion expressed in his report dated 19 July 1999 that the deceased had testamentary capacity on 7 August 1995. I note that in his view she was probably aware of the nature and extent of her estate and the effect of her Will in the distribution of her estate.

132 Other factors relevant to the allegation of incapacity include that the daughter, Wendy Thillainath, took no steps to have her mother assessed as to capacity, even though she knew that she was about to sign a new Will. She did not communicate any anxiety to O'Briens, the deceased's solicitors in Berri. Notwithstanding her evidence that she did not know what was in the earlier Will, Wendy acted in a way which would be unusual if the only change to the Will was to change the executors. After the Will was executed, no steps were taken to have the deceased assessed when an assessment was clearly available and a previous assessment by ACAT had been done. When Wendy Thillainath opened the earlier Will and discovered the position in mid-1996, she did not write to suggest that the defendant had misrepresented the terms of the Will.

133 The Court should be wary of interfering with a Will and imposing its own decision on a deceased's capacity and thereby defeating the testamentary intentions of that deceased. This is particularly so where the Will is, on its face, clear and regularly executed and where those who profess to have perceived an incapacity at the time and who had the opportunity to test this failed to do so. In those circumstances, they deprive the Court of contemporaneous evidence and the inference must be drawn that they did not have a real and genuine belief that the deceased lacked the relevant capacity.

134 Having carefully reviewed the evidence, I am satisfied that the deceased, Mrs McDonnell, was of sound and disposing mind both at the time when the instructions for the disputed Will were given in June and when the Will was executed on 7 August 1995 in the presence of her son and the two bank officers. The evidence relied upon by the defendant is also sufficient to remove any suspicions arising from the circumstances I mentioned earlier as to whether the Will reflected her true intentions. The defendant has proved affirmatively by clear and satisfactory evidence that the deceased knew and approved of the contents of her Will.

135 For these reasons, I am satisfied that the 1995 Will executed by the deceased on 7 August 1995 should be propounded in solemn form. The corollary is that the 1995 Will must be taken to have revoked the earlier

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1989 Will, with the result that there is no basis for any pronouncement in favour of the earlier Will or for an intestacy. The claim for relief advanced by the plaintiffs will be dismissed. I will hear the parties as to the orders that are required to carry this judgment into effect.

Thillainath v Ian Peter McDonell as Executor of the Estate of Rita Amy McDonell (DEC)

[2000] WASC 307

19 DECEMBER 2000

THILLAINATH & ORS -v- IAN PETER McDONELL as Executor of the Estate of RITA AMY McDONELL (DEC) [2000] WASC 307