Thomas v Nash - [2010] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
THOMAS & ANOR v NASH
[2010] SASC 153
Judgment of The Honourable Chief Justice Doyle
25 May 2010
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
Plaintiffs sought grant of probate in solemn form - whether testator had testamentary capacity - whether testator knew and approved contents of will.
HELD: evidence established that testator had testamentary capacity - testator understood nature and effect of making a will - contents of will did not give rise to doubt about testator's capacity.

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - CIRCUMSTANCES AROUSING SUSPICION
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - EVIDENCE
Whether plaintiffs exercised undue influence over the testator at the time will was executed - whether will made in suspicious circumstances.
HELD: court must be satisfied that undue influence was in fact exerted - distinction between legitimate influence, persuasion and pressure, and persuasion, pressure or influence that amounts to coercion depriving testator of "free agency" - evidence did not support conclusion that plaintiffs exercised such influence and persuasion over testator as to deprive her of a free choice.

COMMUNICATIONS LAW - INTERCEPTION OF COMMUNICATIONS - DEALING IN INFORMATION - AS EVIDENCE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - EVIDENCE UNLAWFULLY OR IRREGULARLY OBTAINED
EVIDENCE - MECHANICAL RECORDS
Whether certain conversations recorded by the defendant without consent of other participants admissible - meaning of expression "lawful interests" in s 7 of Listening and Surveillance Devices Act 1972 (SA) - whether court has discretion similar to Bunning v Cross discretion to exclude evidence.
HELD: meaning of "lawful interests" in s 7 of Listening and Surveillance Devices Act 1972 (SA) best left to be applied case by case - desire to gain advantage in civil proceedings not usually in "lawful interests" - s 7 did not operate here - defendant prohibited by s 5 from communicating recorded information - s 5 applies to communication or publication to a court - tender of evidence would give rise to an offence - all recordings except one on a standard telephone message recording machine inadmissible.
Supreme Court Civil Rules 2006 (SA) r 209; Listening and Surveillance Devices Act 1972 (SA) s 3, s 4, s 5(1), s 5(2), s 7(1), s 7(3); Telecommunications (Interception and Access) Act 1979 (Cth); Wills Act 1936 (SA), referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey (1924) 34 CLR 558; Timbury v Coffee (1941) 66 CLR 277; Worth v Clasohm (1952) 86 CLR 439; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Wingrove v Wingrove (1885) LR 11 PD 81; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116; Boyse v Rossborough (1857) 6 HLC 1; Craig v Lamoureux [1920] AC 349, applied.
Sims v O'Sullivan [1952] SASR 179; T v The Medical Board of South Australia (1992) 58 SASR 382; Public Trustee v Alvaro (1995) 182 LSJS 383; Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; R v Le (2004) 60 NSWLR 108; Sepulveda v The Queen (2006) 167 A Crim R 108; Bunning v Cross (1978-1979) 141 CLR 54; Southern Equities Corporation Ltd (In Liq) v Bond (No 2) (2001) 78 SASR 554, considered.

THOMAS & ANOR v NASH
[2010] SASC 153
Civil

DOYLE CJ: This is an action for a grant of probate in solemn form.
The plaintiffs are Mr and Mrs Thomas, the persons named as executors in the will. (For convenience I will refer to the contested document as the will, for there is no doubt that that is what it purports to be, nor is it disputed that the deceased signed it.)
The will was made by Violet Frances Nash (Mrs Nash), the mother of Mrs Thomas. The defendant is Mr Peter Nash, one of two sons of Mrs Nash.
Mr Nash denies that Mrs Nash had the capacity to make the will, and denies that she knew and approved of the contents of the will. He alleges that the will was made in suspicious circumstances. If it is found that Mrs Nash had the necessary capacity, he alleges that the will was executed under the undue influence of Mr and Mrs Thomas.
The trial
I want to record some aspects of the trial.
Mr Nash has acted for himself throughout. The trial was estimated to last three days. My assessment is that it should have taken no more than two or three days. In fact it took about nine days. The additional time substantially increased the costs of the case to the plaintiffs, and the cost to the public through the use of the Court and its resources.
The additional time is attributable to Mr Nash’s inability to present his case efficiently, although I gave him such help as I was able to give him. On many occasions I had to sort out what it was that Mr Nash was interested in, and then formulate questions for him. I disallowed many questions because they were irrelevant, or of quite peripheral relevance only. On occasions I intervened of my own motion, to keep the case moving. Often when I disallowed a question, this led to ongoing argument on the part of Mr Nash, who was usually dissatisfied with my rulings. On occasions, when the questioning of witnesses was repetitive or to little effect, I warned Mr Nash that I would exercise my power as trial judge to limit any further questioning unless he moved on. Power to do so is given by r 209 of the Supreme Court Civil Rules 2006 (SA), but exists in any event as one of the Court’s inherent powers over the conduct of litigation. Mr Nash had numerous documents upon which he wanted to rely. I considered many of them to be irrelevant. His documents were in a disorganised state. Often the Court had to wait while Mr Nash found a particular document upon which he relied. All of these things contributed to the length of the case.
I permitted Mr Coppola, for the plaintiffs, to interpose two medical practitioners as witnesses, even though Mr Nash did not consent to this. I did so because of difficulties in arranging their attendance, having regard to the unexpected amount of time being taken by Mr Nash, and because I considered that my decision would cause no unfairness. This also I considered to be within my powers as trial judge: see Sims v O’Sullivan [1952] SASR 179 at 183 Napier CJ.
I do not record this to criticise Mr Nash. It is not uncommon for an unrepresented litigant to cause problems of this kind. I record these details to draw attention to the private and public cost that is incurred in cases like this. This happens in other cases from time to time. I expect that it happens more often in the District Court, and more often again in the Magistrates Court.
The answer is not to deny to members of the public like Mr Nash the right to appear without representation. Nor can judicial supervision be the complete answer. The case was prolonged despite my best efforts. It might be in the interests of the State to provide legal assistance, under tight conditions, to persons like Mr Nash. The time saved in court would go a reasonable way towards recouping the costs of the legal assistance.
Tape Recordings and Expert Reports
A further procedural complication arose.
I held two directions hearings in the week or so before the trial began.
Mr Nash complained that only in the last two weeks or so had the plaintiffs given him expert reports from two medical practitioners. He wanted me to appoint a single expert to provide a report to the Court. I declined to do so. He sought an adjournment of the trial so that he could retain his own expert, and amend his pleadings.
I considered that the plaintiffs’ reports were provided late and were not in proper form. They did little more than confirm, without explaining, previously expressed opinions.
Mr Nash also told me that he had a number of recordings on a disc of conversations with Mrs Nash, and also with Mrs Thomas and Mr Thomas, and possibly with other persons, all of which he wanted to introduce into evidence. He indicated that the recordings lasted for several hours. He was not in a position to specify, as to each recording, when it was made, how long it lasted, who was speaking and so on. The recordings, he said, had been discovered as “Mp3. Copy of the various records concerning VF Nash and Others”. This was hardly an adequate description. On the other hand, the plaintiffs’ solicitors and counsel had not sought inspection and so had not listened to the recordings and had no idea what they contained. They protested against the use of this material.
I was concerned about the impact on the length of the trial if the recordings were to be played to witness after witness during the trial. Neither party had addressed the possibility of playing the recordings to the witnesses ahead of trial, in the interests of efficiency.
It also emerged in the course of the directions hearings that the recordings might have been made in breach of the Listening and Surveillance Devices Act 1972 (SA) (“the Act”), or of the Telecommunications (Interception and Access) Act 1979 (Cth) (“the Interception Act”).
I gave Mr Nash permission to amend his defence. I directed that the trial proceed. I said that I would hear the plaintiffs’ evidence. Mr Nash could cross‑examine on all matters except the recordings. I would hear his evidence. In the course of doing so I would hear his evidence about the circumstances in which the recordings were made, and rule on their admissibility. I would then adjourn the trial to allow Mr Nash to retain his own expert. If I admitted the recordings into evidence, the relevant witnesses could, if necessary, listen to them during the adjournment and return for further cross-examination. I told Mr Nash that if he called an expert, the two medical practitioners to be called by the plaintiffs could return for further examination and cross-examination in relation to the expert’s evidence.
This was not ideal, but it meant that the trial could proceed. Mr Nash had wanted the whole trial adjourned. It also meant that Mr Nash would have every chance to organise his case, if I ruled that the recordings were admissible.
The trial proceeded on that basis. On numerous occasions I pointed out to Mr Nash that he could cross-examine on any relevant conversation. Also, he could give evidence about a relevant conversation, relying on memory. The only limit was on playing a recording of a conversation, until I had ruled on the admissibility of the recordings.
After Mr Nash had given his evidence-in-chief, I questioned him about the recordings, in order to assist him. I allowed Mr Coppola to cross-examine Mr Nash on the question of admissibility. At various stages I warned Mr Nash that his answers might disclose the commission of an offence under the Act, or the Interception Act, and that he need not answer questions that had that tendency. On one or two occasions he declined to answer questions, invoking that privilege.
Mr Nash produced a list of the relevant conversations, which I marked as D61. The list purports to identify the participants in each conversation, and the length of the conversation. There are about 30 conversations in all, some lasting less than a minute, others lasting more than an hour. The dates of some conversations are indicated, but not for all. During his evidence Mr Nash at times referred to other conversations. At times it was not clear which conversation he was referring to.
I make the following findings.
Mr Nash had a small hand held tape recorder. It could be held in one hand, and might easily not be seen by a person to whom he was speaking. From his evidence it is clear that he made a practice of recording conversations. He recorded conversations with his mother on a number of occasions in about June 2005. He also recorded conversations with Mrs Thomas and Mr Thomas between about June and August 2005. He did not tell any of the relevant persons that he was recording the conversations. Sometimes the tape recorder was in his pocket, sometimes it was in the room and not being held in his hand. Having regard to her limited vision, Mrs Nash could have had no idea that the tape recorder was being used.
Mr Nash said that he made the recordings of his mother in case she forgot things. I do not accept that explanation. If it played a part in his thinking, it played a minor part only. He said that he made the recordings so that he could prove things: T630-T632. I find that he made the recordings in case it might later prove to his advantage to have them.
Mr Nash recorded parts of conversations involving Mrs Thomas and Mr Thomas and Mrs Nash, on the day that Mrs Nash moved out of his property. He also recorded a conversation with Mr Thomas and Mrs Thomas on 17 June 2005 about a family meeting. Again, he did not tell anyone what he was doing.
At no stage did Mr Nash explain satisfactorily how he decided what parts of a particular conversation to record and what not to record. While I find that there are other recordings, probably involving family members, I do not know what they are, nor do I know the basis upon which he has selected those that he wished to tender.
Mr Nash also recorded some telephone conversations using software installed at his business premises. By this means he recorded a telephone conversation without the other party being informed that the conversation was being recorded. He recorded a conversation with Dr Rachootin, one of the medical practitioners who gave evidence, in this manner, and possibly with others.
Sometimes he recorded a telephone conversation by putting his mobile phone next to the speaker on the handset, and using the mobile phone as a recorder in much the same way as the hand held recorder was used.
He transferred the selected recordings to a disc. The original tapes were no longer available. As I have indicated, the material was something of a jumble, and Mr Nash was at times uncertain which conversation was being referred to when he gave evidence, as well as being uncertain about the content of particular conversations listed in D61.
I heard evidence about a conversation on 18 June 2005 involving Mr Nash, John Nash (the eldest son of Mrs Nash), and Mrs Nash. This conversation lasted a little over an hour. I did not listen to the record of the whole conversation. For the purposes of the directions hearings I listened to some of it. I heard evidence, sometimes quite briefly, about other conversations. As best I could, I got Mr Nash to give evidence about how he came to record each of the conversations in D61.
I ruled that all of the recordings, except one on a standard telephone message recording system, were inadmissible. I held that the publication or communication of the content of the recording was prohibited by s 5(1) of the Act. My reasons follow. They are an expansion of the reasons that I gave at trial.
Section 4 of the Act provides:
4      Regulation of use of listening devices
Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
Maximum penalty: $10 000 or imprisonment for 2 years.
Section 3 defines “private conversation” as follows:
private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
Section 5 of the Act provides as follows:
5      Prohibition on communication or publication
(1) A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4 –
(a)to a person who was a party to the conversation to which the information or material relates; or
(b)with the consent of each party to the conversation to which the information or material relates; or
(c)for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.
Section 3 has the following definition:
publish information or material includes display or deliver the information or material to another.
Section 7 relevantly provides:
7      Lawful use of listening device by party to private conversation
(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) where that listening device is used –
(a)     to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b)     in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.
…
(3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except –
(a)     to a person who was a party to the conversation to which the information or material relates; or
(b)     with the consent of each party to the conversation to which the information or material relates; or
(c)     in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by the police or the ACC, for the purposes of a relevant investigation or a relevant proceeding; or
(d)     being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or
(e)     where the information or material has been taken or received in public as evidence in a relevant proceeding.
Maximum penalty: $10 000 or imprisonment for 2 years.
I find that the tape recorder, the mobile telephone and the software system at Mr Nash’s shop were all listening devices as defined in s 3. There was no dispute about that.
I find that each conversation was a private conversation.
The definition of “private conversation” indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
There is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation. I am satisfied that each of the conversations was a private conversation, in the sense that the circumstances indicated that the participants other than Mr Nash wished the actual conversation to be confined to the known participants.

There is no doubt that Mr Nash intentionally used a listening device to record the conversations.
I find that neither Mrs Nash, Mrs Thomas nor Mr Thomas expressly or impliedly consented to the recording of the relevant conversations.
I find that Mrs Nash did not know the relevant conversations were being recorded. There is no suggestion that she did. I make the same finding in relation to Dr Rachootin, Mrs Thomas and Mr Thomas. Some answers that they gave in evidence are capable of suggesting that Mrs Thomas and Mr Thomas might have suspected that Mr Nash was making a recording. On the other hand, those answers might well have reflected knowledge that Mrs Thomas and Mr Thomas had by the time of trial. In any event, I find that neither of them consented expressly or impliedly to the recording of the conversation. Even if they suspected that Mr Nash might be covertly recording it, they were not thereby consenting to the recording.
I find that the recordings, except the recording made on a telephone message recording system, were made in contravention of s 4 of the Act, subject to the application of s 7 of the Act.
As to s 7(1)(b), I find that Mr Nash did not make the recordings in the course of duty, or in the public interest. There is no basis on which any other conclusion could be reached.
I find that Mr Nash did not record the conversations “for the protection of the lawful interests of” Mr Nash.
Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. This is not a case in which the recording was made to uncover a crime, or to resist an allegation of crime.
I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v The Medical Board of South Australia (1992) 58 SASR 382 at 399 Matheson J, at 421 Olsson J and at 423 Debelle J; Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 Legoe AJ; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 at [27]-[33] Branson J; R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108 at [47] Giles JA, at [79] Hulme J and at [83]-[84] Adams J; Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 at [142]-[143] Johnson J, with whom the other members of the Court agreed.
In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.
Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
A number of the decisions make the point, with which I agree, that the exception in s 7(1)(b) should not be read so widely that it undermines the protection given by s 4, which protection is at the very heart of the Act.
I consider that those decisions are consistent with the opinion I have expressed above, and that there is nothing in them that calls for a contrary conclusion.
It follows that s 7(1) does not apply, and accordingly s 4 of the Act continues to apply. Its application is not lifted or removed by operation of s 7.
There is no need to consider s 7(3) of the Act. As s 7(1) of the Act does not apply, the use of the listening device was not “under this section”. It is clear that s 7(3) creates an exception, permitting the communication of recorded material, only in cases that fall within s 7(1) of the Act.
As s 4 of the Act continues to apply, the prohibition in s 5 of the Act is operative. That prohibits Mr Nash from communicating the recorded information.
I am satisfied that s 5 applies to communication or publication to a court and in the course of proceedings such as these. Section 5(2)(c) lifts the prohibition in relation to certain communications or publications. One of them is for the purposes of “a relevant proceeding relating to that contravention of section 4 …”. The definition of “relevant proceeding” makes it clear that the reference is to a prosecution before a court for an offence under the Act. If s 5(1) did not prohibit communication or publication to a court, there would be no need for the exception in s 5(2)(c).
Accordingly, the publication or communication to this Court of the information in the recordings is not permitted, because to do so would give rise to a breach of s 5(1) and to the commission of an offence. I cannot allow the tender of evidence when to do so would give rise to an offence under the Act.
There is no need to decide whether or not the Court has a discretion, similar to the discretion identified in Bunning v Cross (1978-1979) 141 CLR 54, to exclude the evidence. In Southern Equities Corporation Ltd (In Liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554, Lander J held that such a discretion might well exist: at [109]. If it does, I would exercise my discretion to exclude the material tendered by Mr Nash. Its use would be unlawful. The evidence discloses that Mr Nash routinely made covert recordings of conversations when he thought that doing so might be to his advantage. What he did amounts to a substantial intrusion on privacy. There is no public interest calling for the admission of the evidence. To admit the evidence in the circumstances of this case would amount to the Court condoning what Mr Nash has done. It was open to Mr Nash to give his own evidence about any relevant consideration. No doubt the Court could exclude the evidence if the use of the evidence would amount to an abuse of process, but there is no need to consider whether the use of the evidence in this case would amount to an abuse of process: cf Southern Equities at [111]-[112] Lander J.
Based on what I have heard from Mr Nash about the conversations, I doubt whether the excluded material would provide any information not already available about the capacity of Mrs Nash. To the extent that it might be used to contradict something said in evidence by Mrs Thomas or Mr Thomas, I have no reason to think from anything that Mr Nash put to them that a finding that their evidence was wrong on a matter of detail would lead anywhere.
On 10 February 2010 I adjourned the trial of the action to 22 March 2010. That was in accordance with the directions outlined above at [18]. This was to enable Mr Nash to obtain an opinion from Dr Field, a psychologist specialising in neuropsychology. The period of the adjournment was almost six weeks. The adjournment was granted on two bases that I made clear to Mr Nash.
First, that if Dr Field was to be called as a witness, Mr Nash would provide a copy of Dr Field’s report to the plaintiffs’ solicitors and to my chambers about seven days before the trial was due to resume. Second, that Dr Field was to be available to give evidence on 22 March 2010. That was the day fixed for that purpose.
At the time I considered that the period of almost six weeks was more than adequate to allow Mr Nash to provide relevant material to Dr Field, and for Dr Field to give his opinion to Mr Nash. The primary material comprised certain exhibits, in particular the notes of the medical witnesses, and the transcript of evidence. I knew that Mr Nash had already been in contact with Dr Field, and had had an opportunity to discuss the case with him. Mr Nash did not protest that the time allowed would be insufficient.
In the week before 22 March, Mr Nash did not forward to my chambers a copy of Dr Field’s report. In about the middle of the week Mr Nash contacted my chambers by email. He said that Dr Field had not completed his enquiries, and referred to delays in getting documents to Dr Field.
When the trial resumed on 22 March 2010, Dr Field was not present. Mr Nash told me that Dr Field was consulting. Mr Nash said that he needed at least until the end of April for Dr Field to complete his work.
I did not accept as adequate the explanation given by Mr Nash. I was not satisfied that the necessary documents could not have been provided to Dr Field in sufficient time for him to give his opinion to Mr Nash. Moreover, Mr Nash did not produce anything in writing from Dr Field to confirm that his work was incomplete, to explain why it had not been completed, or to confirm how long Dr Field would need to complete the work. Having regard to the basis of the adjournment, Dr Field should have been available to give brief evidence about these matters. I make no criticism of Dr Field. These are matters to which Mr Nash should have attended.
Had I granted Mr Nash’s adjournment application, the trial would have been adjourned for a minimum of two months (from 10 February 2010) without me being satisfied that Dr Field would be called as a witness, and without any satisfactory explanation for him not being called on 22 March 2010.
I was not persuaded that Mr Nash had made all reasonable efforts to comply with the timetable that I laid down. To adjourn the case again would cause hardship to the plaintiffs, leaving them in a continuing state of uncertainty about a case that should not have taken so long. This is something for which costs would not be an adequate compensation. In my opinion it was contrary to the interests of justice to impose a further substantial delay on the plaintiffs. I refused the adjournment application.
I did not overlook the possibility (it is no more than this) that Dr Field would have assisted Mr Nash’s case. But that was not the only consideration.
I refused a further application by Mr Nash to re-open his cross-examination of Dr Rachootin. That also would have given rise to further delay because she was not present, it having become apparent that Dr Field was not going to be called as a witness on 22 March 2010. Mr Nash said that he had studied Dr Rachootin’s notes closely, and now wished to ask a number of questions arising on those notes. When Dr Rachootin gave her evidence, she had her notes with her. Mr Nash had the opportunity to look at them at the time. I was not persuaded that the interests of justice called for his application to be granted.
I then called on Mr Coppola to address, and he did so. Mr Nash said that he was not prepared to make his closing address. To accommodate him, I allowed him to submit his closing submission in writing, and fixed a time at which I said I would hear further oral submissions by way of supplement or emphasis, if he so wished.
Mr Nash’s written submission came with further material, hard copy and electronically. Some of this was material the tender of which I had rejected. Some was new material. Some was material that had been admitted into evidence. I have not considered anything other than the material admitted into evidence.
Issues, burden and standard of proof
The identification of the issues in a case like this will always turn on the facts of the case. General propositions based on particular circumstances must be treated with care. On the other hand, I must follow the accepted authorities in this area.
In Banks v Goodfellow (1870) LR 5 QB 549 Cockburn CJ, delivering the judgment of the Court, said at 565:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the Court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.
He spoke to the same effect at 569-570.
In Bailey v Bailey (1924) 34 CLR 558, Isaacs J formulated a number of “working propositions” drawn from the case law, including Banks v Goodfellow. The other two members of the majority (Gavan Duffy J and Rich J) agreed with the reasons of Isaacs J. These propositions (at 570-572) are, relevantly, as follows:
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument …
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence …
(3)The proponent’s duty is, in the first place, discharged by establishing a prima facie case …
…
(5)A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments …
(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances …
(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries …; (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 …
…
(9)To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property …
(10)The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue …
(11)While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions …
…
I treat these passages as binding authority.
In Timbury v Coffee (1941) 66 CLR 277, Dixon J referred with approval to three passages from reported cases at 283:
“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J, In the Will of Wilson (1897) 23 VLR 197, at p 199). “If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J, Symes v Green (1859) 1 Sw & Tr 401, at p 402)-Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. “In the end the tribunal- the court or jury – must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt (1867) LR 1 P & D 398, at p 436; Sutton v Sadler (1857) 3 CB(NS) 87, at p 97)" (per Rich J, Landers v Landers (1914) 19 CLR 222, at pp 235, 236).
In Worth v Clasohm (1952) 86 CLR 439, the Court (Dixon CJ, Webb J and Kitto J) made the following statement in relation to the standard of proof at 453:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. …
Finally, I refer to the decision of the Court (Williams, Fullagar and Kitto JJ) in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 where the Court said at 180:
The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a 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, 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 or, if instructions for the will preceded its execution, when the instructions were given. …

In relation to the question of testamentary capacity, issues for me are whether Mrs Nash knew the effect of the will, whether she knew the nature and extent of her estate, whether she was aware of those who might be thought to have a claim upon her bounty, and the basis for such a claim, and whether she was in a position to evaluate those claims and make a decision. Her memory is relevant because she had to have the ability to remember these matters. Her state of health is relevant because her physical and mental health might affect her testamentary capacity.
As to these matters, it is for the plaintiffs to establish testamentary capacity, and to do so on the balance of probabilities. The burden of proof rests on them throughout. Particular facts or matters might, because of their nature, call for particular scrutiny or particular care before I find that the burden of proof is discharged.
In relation to undue influence, the following observations by Sir James Hannen P in Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83 have often been referred to:
To be undue influence in the eye of the law there must be - to sum it up in a word -coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.
…
If therefore the act is shewn to be the result of the wish and will of the testator at the time, then, however it has been brought about — for we are not dealing with a case of fraud — though you may condemn the testator for having such a wish, though you may condemn any person who has endeavoured to persuade and has succeeded in persuading the testator to adopt that view — still it is not undue influence.
There is no role for a presumption of undue influence in relation to a will. To establish that a will was executed as a result of undue influence, it is necessary for the court to be satisfied that undue influence was in fact exerted. In a circumstantial case, it is necessary to show more than circumstances from which an inference of undue influence might be drawn, or circumstances consistent with a hypothesis of undue influence. It is necessary to persuade the court that the influence was exercised: Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 122 Powell J; Boyse v Rossborough (1857) 6 HLC 1 at 49; 10 ER 1192 at 1212. As Sir James Hannen makes clear in the passage set out above, and as other authorities establish, a distinction must be drawn between persuasion and undue influence. The court must bear in mind that it is not its function to require a testator to make a will of which the court approves.
It is appropriate to say something more about undue influence. The expression “coercion” used by Sir James Hannen is suggestive of the use of force, but is not limited to force. The underlying notion is that of compulsion. Compulsion can be achieved by threats, by persuasion, by psychological pressure. In Craig v Lamoureux [1920] AC 349 at 356-357 Viscount Haldane, speaking for the Privy Council, said:
… [A] will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime. And the Courts have in consequence never given to the principle to which the learned judges refer the sweeping application which they have made of it in the present case. There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done.
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2, 49 was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.
Footnote omitted
Viscount Haldane went on to refer to power “… unduly to overbear the will of the testator”. In Winter v Crichton, Powell J said at 121:
2.while, in relation to gifts, or other like transactions, made inter vivos, undue influence will be held to have been established in a case in which — whether because a relevant presumption has not been rebutted, or because of direct evidence to that effect — it has held that the donee has, by the unconscionable use of a position of influence over the donor, obtained an advantage for himself, the influence which must be shown to avoid a will must amount to force or coercion destroying free agency.
In a case like this the Court must distinguish between legitimate influence, persuasion and even pressure on the one hand, and on the other hand that degree of persuasion, pressure or influence that amounts to coercion, depriving the testator of “free agency”.
The burden rests on Mr Nash to establish undue influence, if Mr and Mrs Thomas establish that the will is otherwise valid. However, as a number of the matters relied upon by Mr Nash are relevant to the issues on which Mr and Mrs Thomas bear the burden of proof, it will be necessary to consider them as part of my consideration of the plaintiffs’ case.
The witnesses
Mrs Nash had three children: John Nash, Peter Nash and Mrs Thomas. At the date of her death on 26 October 2006, their respective ages were 59 years, 54 years and 49 years. Mrs Nash was living with Mrs Thomas and Mr Thomas at the time of her death, and had been since late June or early July 2005. Before that Mrs Nash lived in separate accommodation at Mr Peter Nash’s residence. She had lived there since about 1991. She consulted Dr Rachootin, a general practitioner, from 1993 onwards. Mrs Nash from time to time consulted Mr Fisher, a solicitor. At the time that Mrs Nash executed the will Mr Fisher suggested that she obtain a certificate verifying that she had capacity to execute a will. She saw Dr Rachootin for this purpose. Dr Rachootin referred her to the Repatriation General Hospital to obtain such a certificate, where she saw Dr Bulling, the other medical practitioner to whom I have referred.
Background
I will now outline the events leading up to and following the execution of the will. These events are either common ground, or established by documents. I make findings as follows, except when I indicate that I am merely repeating evidence given to me.
Mrs Nash was born on 8 January 1923. She had three children. In the mid 1980’s, after separating from her husband, she moved to Perth. Mrs Thomas was living in Perth with her former husband. Mrs Thomas’ first marriage broke down. Mr Thomas, with whom Mrs Thomas had previously been friendly, came from Adelaide to visit Mrs Nash in Perth. He was a long term friend of hers. His marriage had broken down. Mr Thomas and Mrs Nash had been friends for a number of years because of a mutual interest in the teaching of children. The plaintiffs rekindled their friendship. They returned to Adelaide in 1989, and married in 1991.
Around the time that the plaintiffs returned to Adelaide, Mrs Thomas and Mrs Nash purchased a property as tenants in common. The plaintiffs moved into that property.
Mrs Nash came to live in Adelaide in late 1991. Just prior to her returning to Adelaide, Mr Nash, who was operating a business, was given the opportunity to purchase the premises on which he conducted the business. Mr Nash raised with Mrs Nash the prospect of her assisting with the purchase of the premises. She paid $150,000 on behalf of Mr Nash to the vendor of the premises. The agreement pursuant to which the advance was made is not in evidence. I will return to the agreement between Mr Nash and Mrs Nash later in these reasons. The payment by Mrs Nash was linked to Mrs Nash living in accommodation on Mr Nash’s property. Mr Nash said in evidence that Mrs Nash knew she would have to wait five years before she could ask for her money to be repaid.
On her return to Adelaide, Mrs Nash stayed with the plaintiffs for a short time, but soon moved into a unit on Mr Nash’s property. She started seeing Dr Rachootin in 1993. Although she had experienced heart palpitations and abdominal pain, her physical health was quite good. In 1993 Dr Rachootin noted that Mrs Nash was anxious and possibly suffered from depression. She thought that this was a reaction to events in Mrs Nash’s life, such as deteriorating vision. Mrs Nash declined the use of antidepressants. Her condition improved after she adopted some practical suggestions made by Dr Rachootin.
In 1996, she asked Mr Nash to repay the loan to Mr Nash to enable her to purchase an interest in a retirement village. Mr Nash arranged to borrow the money needed to repay his mother, but she changed her mind after Mr Nash pointed out what he considered to be some drawbacks of the property. Mrs Nash again took steps to purchase a unit in 1997, with a view to moving out of Mr Nash’s property. Mr Nash again pointed out the drawbacks of the property, and she again changed her mind. Mr Nash did not repay the debt or any part of it.
Mrs Nash remained in her unit on Mr Nash’s property.
In October 1998, Mrs Nash transferred her half interest in the property that she had purchased with Mrs Thomas to Mr Thomas. The consideration was $56,000, secured by a mortgage granted by Mr and Mrs Thomas: P33. This was the amount originally paid by Mrs Nash, not the value of her half-interest. In about 1998, Mrs Nash released Mr and Mrs Thomas from part of their obligations to Mrs Nash arising out of the transfer. It appears that Mrs Nash wholly released them from their obligation later. Shortly after the transfer, the plaintiffs purchased a residential property as an investment. The result of this was that Mrs Nash made a gift to Mr and Mrs Thomas of at least $56,000.
While Mr and Mrs Thomas owed money to Mrs Nash, the asset (held by Mrs Nash) had the effect of reducing the amount of Mrs Nash’s pension. The amount of the reduction was not quantified. Neither Mrs Thomas nor Mr Thomas compensated Mrs Nash for that. Mrs Thomas said [T178]:
Well, there was no need. She didn’t ask for anything.
In the late 1990’s, Mrs Nash’s eyesight deteriorated as a consequence of age related macular degeneration. She retained peripheral vision, but her central vision was poor. It appears that she had stopped driving by then. By September 2005, an eye specialist wrote to the Royal Society for the Blind stating that she was legally blind, and requesting that she be registered as blind.
In July 2003, the plaintiffs purchased a parcel of land at Somerton Park. In September 2003, they sold the property in which they were then living, and moved into their investment property. They planned to build on their newly purchased block of land.
On 12 November 2003, Mrs Nash was taken to Mr Fisher’s office, probably by Mrs Thomas. It was not unusual for one or other of them to take her to appointments. Mrs Nash gave Mr Fisher instructions in relation to a will. By hand, Mr Fisher amended an earlier draft, which had not been executed, in accordance with Mrs Nash’s instructions. The will was duly executed by Mrs Nash on that day: P41. Mrs Nash saw Dr Rachootin soon after. Dr Rachootin wrote a note verifying on 2 December 2003 that Mrs Nash was “mentally capable of giving instructions for her will”: P49. On 5 December 2003, Mrs Nash returned to the offices of Mr Fisher. There, she executed a typewritten will identical in terms to the hand amended will that she had executed. At the same time, she executed a document appointing Mrs Thomas her attorney, and Mr Thomas the substitute attorney: P30. She also executed a document appointing Mrs Thomas her enduring guardian, and Mr Thomas her substitute enduring guardian: P31. Mr and Mrs Thomas said that Mrs Nash discussed this with them beforehand.
Sometime in 2004, Mrs Nash decided to leave her unit on Mr Nash’s property, and move in with the plaintiffs once their house at Somerton Park had been completed. Mrs Nash appears to have been dissatisfied with Mr Nash’s failure to repay the loan. The evidence suggests that Mr Nash and his wife were arguing a lot, and that this upset Mrs Nash. Mrs Nash might have had some difficulty coping with her living conditions as a consequence of the deterioration of her eyesight.
In June 2005 Mr Nash gave Mrs Nash a set of questions to give to the plaintiffs: D5. The questions appear to be discussion points for a family meeting that Mr Nash had advised Mrs Nash to request. The questions are directed towards Mrs Nash’s financial affairs, her pension, arrangements for her care (for example, should Mr or Mrs Thomas become incapacitated), and the future care of Mrs Nash. In mid June, the plaintiffs sent Mr Nash a handwritten reply to the questions: D6. At the end of the reply the plaintiffs, purporting to exercise the power of attorney granted to them by Mrs Nash, called for the repayment of the debt of $150,000 owed to her by Mr Nash. Mr Nash gave evidence that, on two occasions during June 2005, he explained to Mrs Nash how he planned to pay her the amount that she claimed. He said that although she did not understand what he proposed, she indicated her acceptance.
In early July 2005, Mr Thomas went to Mrs Nash’s unit to collect her belongings. Mr Nash was present at the house when Mr Thomas arrived. The atmosphere at the house appears to have been tense. Mrs Thomas arrived later. There were some arguments between those present. There is no need to go into the details.
The plaintiffs left Mr Nash’s house with Mrs Nash and her belongings. With the exception of some formal correspondence relating to the family meeting and the debt, Mrs Nash and Mr Nash did not have any further contact until shortly before her death.
In July 2005 Mr and Mrs Thomas sent two handwritten letters to Mr Nash informing him that “matters” (the loan, it seems) had been put in solicitors’ hands: D7, D9. At Mrs Nash’s request, Mr Thomas took her to see a solicitor in relation to the debt. On 3 August 2005, the solicitor sent Mr Nash a letter demanding the repayment of the debt: D24. Mr Nash replied by letter dated 30 August 2005, neither offering nor refusing repayment. He said the loan was subject to a “time to pay proviso”: D24. In the letter he alleged that Mrs Nash mistakenly thought she had to pay money to Mrs Thomas, and complained about being “cut off” from Mrs Nash.
Mr Nash did not pay the amount he owed to Mrs Nash. Both Mrs Thomas and Mr Thomas gave evidence that she became increasingly upset about his failure to repay the debt.
Mr Nash gave evidence that he unsuccessfully attempted to rent the vacant unit. His plan was to borrow money to repay Mrs Nash, and use the rental to repay the borrowed money. Nothing came of that. As I have said, Mr Nash did not have any significant contact with Mrs Nash during this time.
Mrs Thomas took Mrs Nash to Mr Fisher’s office on 2 September 2005. Mrs Nash met with Mr Fisher for the purpose of instructing him to change her will. Mr Fisher suggested that Mrs Nash obtain from a doctor a certificate that she had testamentary capacity. On 6 September 2005, Mrs Nash saw Dr Rachootin for this purpose. Dr Rachootin referred her to the Repatriation General Hospital.
Mr Thomas drove Mrs Nash and Mrs Thomas to Mr Fisher’s office on 27 September 2005. The will was duly executed. In accordance with the Wills Act 1936 (SA), Mrs Nash signed the will in the presence of two witnesses after it was read to her. The two witnesses, Mr Fisher and a receptionist at his firm, Ms Le, then signed the will in the presence of Mrs Nash.
Mrs Nash saw Dr Bulling at the Repatriation General Hospital on 10 October 2005. In a report of the same date Dr Bulling expressed the view that “although Mrs Nash has some short term memory impairment she currently does have testamentary capacity”: P36.
At the time that Mrs Nash executed the Will, she had suffered or was suffering from a number of conditions for which she was receiving adequate treatment. They are summarised by Dr Rachootin in her referral of 6 September 2005 to Dr Bulling: P32. In particular, she had hypertension and borderline hypothyroidism, both of which were satisfactorily managed with prescription medication. She continued to suffer from heart conditions, which were under control with treatment. As a result of macular degeneration, her eyesight had deteriorated to the point that she was certified legally blind. She also suffered hearing loss, particularly in her left ear. It is unclear whether, at the time of the will, she suffered from a depressive condition or anxiety. However, it is clear that she suffered from these conditions from time to time.
Notwithstanding her ailments, throughout the time that she lived with the plaintiffs, she continued to go to a fitness centre about twice a week. She was an active participant in classes.
Early in 2006 Mr Nash’s marriage failed. As a result of proceedings in the Family Court, his bank accounts were frozen. His business ceased to operate. He developed a depressive condition. He was unable to repay the loan to Mrs Nash, because of his wife’s claim against his assets.
In October 2006, the plaintiffs went for a holiday to Vietnam. While they were away, Mrs Nash was admitted to hospital, having suffered a transient ischaemic attack at home. She required treatment in hospital.
Shortly after, she fell, breaking her hip. She required surgery. The plaintiffs, one of Mrs Thomas’ daughters, Mr Nash and John Nash visited Mrs Nash in hospital. Mrs Nash expressed her love and affection to Mr Nash and John Nash and said that she was pleased that they had come. During the surgery, Mrs Nash died, aged 83 years.
The wills
The plaintiffs were appointed the executors and sole beneficiaries of the will. In the event that the plaintiffs predeceased Mrs Nash, the will appointed Mrs Thomas’ two daughters sole beneficiaries as tenants in common. The estate’s main asset is the debt owed by Mr Nash. Apart from that, the estate has a net value of about $8,000.
The plaintiffs were also appointed executors of the 2003 will. Under that will, Mrs Thomas was to receive most of Mrs Nash’s personal property and two thirds of the residue of her estate. Mr Nash and John Nash also stood to benefit. They were to receive in equal shares the remaining one third of the residue of Mrs Nash’s estate. Mr Thomas was not a beneficiary. In the event that any of the beneficiaries were to predecease Mrs Nash, their respective children would take their place as beneficiary.
Factual issues - capacity

My summary of the background is as long as it is because the factual issues can only be understood and assessed against this background.
Mrs Nash’s state of health is an issue. Not surprisingly, her health deteriorated over the last 10 years of her life. In particular, because she suffered from macular degeneration, her eyesight deteriorated. Mr Nash described a woman who, in the year or so before her death, was quite frail and was having real difficulty coping mentally, was anxious, and was showing signs of what looked like early dementia (poor memory, episodes of bad temper, impulsive and uninhibited behaviour). He suggested that her strongly held religious beliefs, and her beliefs about God and the devil, indicated some lack of balance. Mr and Mrs Thomas described a woman who was coping well for her age, physically and mentally, subject to the impact of her macular degeneration. She knew her own mind.
Mr Nash raises the apparently irrational exclusion of him and John Nash from benefits under the will.
He says that he had a good relationship with his mother until she moved out in the middle of 2005. He says that he cared for her, and in particular took care for her health. He suggests that after she moved to live with Mr and Mrs Thomas she fell under their influence. He suggests that this was made easier because of their shared religious beliefs. He suggests that Mr and Mrs Thomas prevented him from maintaining contact with his mother, or made it very difficult to do so, and that she must have wrongly interpreted this as him turning his back on her.
Mr Nash argues that he never refused to repay the $150,000 that Mrs Nash lent him. His mother had no reason to be resentful on this score. In 1996 and in 1997 she had changed her mind about moving out. Although at first he did not have the money readily available, he always intended to repay her, and in fact made arrangements to do so in 1996 and 1997. He intended to repay her in 2005 when the issued was raised, and took steps to that end. Her apparent anger and resentment about the loan was misplaced.
Mr Nash suggests that Mr and Mrs Thomas persuaded Mrs Nash to press him for repayment, and made use of the Power of Attorney granted to Mrs Thomas to do so. He argues that they did so with a view to persuading Mrs Nash to hand the money to them. He claimed that they needed money to pay for their new house. He argues that Mrs Nash had no reason to call for the money.
Mr Nash argues that Mr and Mrs Thomas have received far more from Mrs Nash than he or his brother John Nash did, and that the disproportion suggests a lack of understanding or judgment on his mother’s part. He suggests that Mr and Mrs Thomas took any available opportunity to get money from Mrs Nash.
Mr Nash also suggests that Mrs Nash lacked the capacity or willpower to resist the persuasion of Mr and Mrs Thomas. Once Mrs Nash was living with them, Mr and Mrs Thomas manipulated or pressured Mrs Nash into making the will in their favour, and led her to believe that Mr Nash and John Nash had turned against her. This is an inference, he argues, that should be drawn from the circumstances.
Mr Nash is probably suggesting, as well, that his proposal in June 2005 for a family meeting was intended to protect Mrs Nash’s interests and welfare. He suggests that Mr and Mrs Thomas declined to have the meeting, and persuaded Mrs Nash not to agree to it, in order to prevent him raising things that needed to be raised in Mrs Nash’s interests.
The issues can be summarised as follows.
Had Mrs Nash’s mental and physical health deteriorated to such an extent that she lacked capacity to make the will? Were the reasons that Mrs Nash gave for excluding her sons wrong and irrational, suggesting that her memory was so bad that she could not assess the claims on her estate, or that she lacked the mental capacity to do so? Does the disproportion in benefits point the same way? Do the circumstances in which the will was made, coupled with Mrs Nash’s physical and mental capacity, and coupled with the provisions of the will, give rise to a doubt about Mrs Nash’s capacity which is not dispelled by the evidence?
As well, Mr Nash submits that I should find that Mr and Mrs Thomas exerted undue influence over Mrs Nash. However, if the point last made lacks force, there is no scope for a finding of undue influence.
Reliability of witnesses
I find that Dr Bulling and Dr Rachootin are competent and reliable witnesses. Each of them gave her evidence well. Dr Rachootin’s notes were detailed, enabling me to rely on her record of events over the years.
I accept the substance of the evidence of Mr and Mrs Thomas. I regard them as truthful. At times their memories were not reliable. That is not surprising. At times their antagonism towards Mr Nash was evident. This may have coloured some of their evidence. That is not surprising, because the family is divided.
I also accept a good deal of Mr Nash’s evidence. I accept him as truthful, by and large. He has obviously spent many weeks collecting material for this case. He has an eye for detail, to a degree that is sometimes excessive, and sometimes obsessive. He demonstrated that he will not let go of an issue. He is aggrieved by what has happened, and that has fed his suspicions. But I accept that much of his evidence is reliable, as distinct from the material in some of his documents, and as distinct from his claims and suspicions. However, as will appear, I do not accept his evidence depicting his mother, in the latter half of 2005, as very frail, forgetful, with significant memory problems, and unable to cope with life.
I accept Mr John Nash as truthful, but I am cautious about the reliability of his evidence. His memory is not good. At times he seemed not to comprehend what was put to him.
I accept as truthful and accurate the evidence of Mr Fisher and Ms Le.
Findings as to Mrs Nash’s health and mental capacity
In the end all relevant circumstances have to be considered together. But it is convenient to begin with the issue of health and mental capacity.
The evidence of Dr Rachootin is helpful because Mrs Nash consulted her on a regular basis from 1993 until Mrs Nash’s death. Dr Rachootin considered Mrs Nash’s testamentary capacity in 2003, and again in 2005. On each occasion she asked Mrs Nash about her assets and what she proposed to do with them. On each occasion she administered a mental state test, and this gave results consistent with her opinion. She did not place undue reliance on the test, treating it as no more than a general screening test. She was aware of Mrs Nash’s state of health. In particular, she was aware of her tendency towards anxiety and depression. She did not suggest that Mrs Nash showed signs of significant memory problems, or signs of difficulty making appropriate conversation. She said that the medication being taken by Mrs Nash would not have impaired her cognitive ability. She had no concerns about Mrs Nash’s level of cognition.
Dr Rachootin gave her evidence clearly, carefully and in a balanced way. I place significant weight on her evidence as supporting a finding of testamentary capacity. Dr Rachootin gave evidence that she referred Mrs Nash to the Repatriation General Hospital in 2005 not because of any doubt that she had about Mrs Nash’s capacity, but because she wished to avoid having to give evidence in the event of a dispute.
I note that from about 2003 Mrs Nash was telling Dr Rachootin that she was anxious about “money tied up with her son”. At times she was tearful about this. She referred from time to time to a “financial dispute” with her son.
Dr Bulling is a specialist physician. She is a member of the Australian Society for Geriatric Medicine. She practices as a consultant geriatrician. She is well qualified to make an assessment of Mrs Nash’s condition.
She saw Mrs Nash on 10 October 2005, after Mrs Nash had been seen and assessed by a nurse and then by a medical registrar. Dr Bulling had a summary of Mrs Nash’s state of health, provided by Dr Rachootin.
Dr Bulling said that the mental state assessment that had been made had no direct relationship to testamentary capacity. That test indicated some short term memory impairment. Dr Bulling talked to Mrs Nash. Mrs Nash gave her a “coherent” account of her assets, and of her wishes in relation to them. There was no evidence of delusional beliefs. Dr Bulling realised that the issues were whether Mrs Nash understood the nature and effect of making a will, whether Mrs Nash understood the extent of her estate and who might expect to benefit from it, and that Mrs Nash should not suffer from a mental illness that would cause her to include people in the will who would not otherwise be included: T301.
I find that Dr Bulling made appropriate enquiries and conducted an appropriate assessment. I accept her evidence that Mrs Nash gave no indication that she lacked testamentary capacity. I rely on this evidence also.
Dr Bulling records in her letter of 10 October 2005 to Dr Rachootin that Mrs Nash told Dr Bulling that she was upset because of difficulty getting her money from her son.
Mr Fisher is an experienced solicitor. Preparing and advising on wills is a substantial part of his practice. He first dealt with Mrs Nash in 1996, in connection with Mrs Nash’s desire for Mr Nash to repay the debt that he owed her: T354.20-24. He saw her on 2 September 2005. She was with Mrs Thomas. She told Mr Fisher that she wished to change her will. He understood from what she said that this was because of the dispute over the loan to Mr Nash. He was aware of this dispute, having taken instructions from her in relation to it in the past. He could not remember any discussion on 2 September 2005 about John Nash other than that Mrs Nash wished to exclude him from her will: T369. Mrs Nash’s instructions were “quite emphatic”: T370. The instructions came from Mrs Nash, not from Mrs Thomas. Because Mrs Nash was making no provision for her sons, and because this might result in a challenge to the will, he recommended that Mrs Nash get a certificate from a doctor. He did not specifically question Mrs Nash about her capacity. In cross-examination he said at 376:
AI didn't feel the need… I dealt with Mrs Nash on a number of occasions through the years. She was interactive in our discussion, she led the discussions and she was emphatic about her instructions. I had no reason to doubt her capacity, I had known the lady for some time and I had taken instructions from her before.
Earlier he said that if he had any doubt about a client’s capacity, he would get medical advice before taking instructions and preparing a will: T375. He did not rely on the certificate from Dr Rachootin: T380. He advised it should be obtained in case there was a later challenge to the will.
When Mrs Nash returned to execute the will, he had it read over to her before inviting her to sign it. Mrs Thomas was not present when this was done.
The effect of his evidence is that Mrs Nash’s instructions were clear. Mr Fisher had dealt with her on a number of occasions. He was alert to the issue of testamentary capacity, and a possible challenge to the will. There was nothing to make him doubt that Mrs Nash had testamentary capacity.
I rely also on Mr Fisher’s evidence, which I accept. There is no reason to doubt that he took due care to satisfy himself that Mrs Nash had testamentary capacity.
He confirmed that in his dealings with Mrs Nash over some time, the loan to Mr Nash had been a contentious issue, and was making her anxious and upset.
Mrs Thomas said that Mrs Nash had wanted to move out of Mr Nash’s property for some years. Mrs Nash told her that she was not happy there. Mrs Thomas described what seemed a normal relationship with her mother while she was living at Mr Nash’s house. She helped her mother quite a bit, taking her to appointments and the like. In 2005 her mother’s health was reasonable, but her eyesight was very poor. She was more or less blind. But Mrs Nash took an interest in the world around her. She listened to the news. She was interested in her grandchildren. She took care of her own finances. She had her own bank accounts, and attended to payment of her bills, although once she moved in with Mrs Thomas there were really no bills to pay. Mrs Nash made her own decisions. Mrs Nash appeared to know what she wanted done with her will, and what needed to be done to change it. She knew what medication to take and when, but needed help because of her poor eyesight. Mrs Thomas said that Mrs Nash told her that she proposed to make no provision for Mr Nash in her will because of the dispute over the loan.
As to John Nash, she had helped him acquire his house, and she did not want any of her estate to go to his children. The point she was making was that a child of John Nash had been imprisoned, and Mrs Nash apparently was concerned that this child would squander anything that he inherited.
Mr Thomas’ evidence was briefer. He said that Mrs Nash did not behave impulsively, was able to concentrate when necessary, and could follow a conversation. He denied that she complained about memory difficulties.
The evidence by Mr and Mrs Thomas accords with the evidence of the first three witnesses. I accept the substance of their evidence. They might have underplayed Mrs Nash’s health problems somewhat, but that is the most one could say.
I have considered Mr Nash’s criticisms of the evidence of Mr and Mrs Thomas. I recognise that they have a reason to slant their evidence, but so does Mr Nash.
By and large they gave their evidence well. Mrs Thomas appeared to answer questions honestly. I have allowed for the evident tension between her and her brother. I agree with Mr Nash that her evidence about not compensating her mother for loss of interest, and for the reduction in her pension, after the sale in 1991 of her mother’s interest in the house property, is surprising. One might think that payment or compensation would be offered rather than waiting for a request. But overall Mrs Thomas appeared to be truthful. Her evidence about her mother’s health and state of mind is consistent with that of Dr Bulling, Dr Rachootin and Mr Fisher. I accept her evidence.
Mr Thomas displayed more obvious antagonism towards Mr Nash, and some impatience with the process. Mr Nash established in cross-examination that Mr Thomas had charged Mrs Nash for some odd jobs done in about 1990, and for driving her around in her own car: T470-T473, T543-T544, D55. I find it surprising that Mr Thomas would charge Mrs Nash in these circumstances. His explanation was not at all convincing. The evidence suggests a preparedness to seek benefits from Mrs Nash. But despite this, I accept the substance of his evidence about Mrs Nash’s physical and mental state.
During the course of the trial, Mr Nash tendered a bundle of anonymous communications directed to him. He argued that they were sent to him by Mr Thomas. The substance of the communications does not relate to this matter. There is no basis for finding that they came from Mr Thomas. I am not prepared to do so. I am not able to say, by comparison, that they came from Mr Thomas. I rejected the tender of the documents.
I do not accept the argument by Mr Nash that Mr and Mrs Thomas inveigled Mrs Nash into coming to live with them, aiming to isolate her from her sons, and to exert influence over her to secure financial benefits under a favourable will.
There is plenty of evidence to support a finding, which I make, that Mrs Nash wanted to move out of the unit on Mr Nash’s property. This was because of her dissatisfaction about the loan and because of tension between Mr Nash and his wife. There is no evidence that Mr and Mrs Thomas tried to turn Mrs Nash against Mr Nash, or to persuade her to make a will in their favour. I return to this issue below.
I reject the evidence of Mr Nash that Mr and Mrs Thomas prevented him from contacting his mother once she had moved. On this point I find Mr Nash’s evidence unconvincing. There was nothing to stop him contacting his mother, at least by telephone. For reasons that only he knows he chose to make no contact with her. In the context of the tension over the loan, it is not surprising that Mrs Nash would interpret this as Mr Nash turning his back on her.
Mr Nash gave evidence that at times his mother was forgetful, and complained about memory difficulties. This is consistent with the evidence of Dr Bulling and Dr Rachootin. He gave evidence of a discussion or discussions with Mrs Nash not long before she moved out, when she complained (referring to matters he was urging her to consider) that she could not keep the words in her head. This is of no particular significance. Indeed, it would not surprise me if Mrs Nash had difficulty following Mr Nash’s sometimes intricate approach to issues. On another occasion he said that she showed a lack of understanding of the effect of the power of attorney granted in favour of Mrs Thomas. Many people have difficulty understanding what a power of attorney is. I invited Mr Nash to summarise his concerns about his mother’s health at about June 2005. He said that she had a bad memory, that her temper was uncertain, and that the will she made was inconsistent with her expressed wish to avoid the kind of dispute that occurred over her former husband’s will in 2001. As to the first two of these, I find that Mrs Nash’s memory problems did not indicate a lack of testamentary capacity. There is no evidence to support a finding that her temper or temperament were indicative of a lack of testamentary capacity. As to the third, that is a matter to weigh up.
Mr Nash said that his mother often talked about the malign influence of the devil on her well being, and on others, and that she frequently invoked the intervention of God. I do not treat this, if correct, as evidence of irrationality or as evidence of a delusional belief. In earlier times plenty of people used to speak this way. Many still do. Taken too far such speech might suggest an unbalanced mind, but in this case it does not.
The effect of the evidence as a whole remains to be considered. But there is no reason to conclude from the evidence about Mrs Nash’s physical and mental health that Mrs Nash lacked the mental capacity to make a will, and no reason to conclude that she did not satisfy the tests set out above. Nonetheless, the evidence must be considered in its broader context.
The terms and circumstances of the will
There is no reason to think that Mr Thomas or Mrs Thomas put pressure on Mrs Nash to move out of the unit on Mr Nash’s property, or to move in with them. That was not suggested by Mr Nash in evidence. The evidence indicates that from about 1996 Mrs Nash was interested in moving out. Mr Nash gave evidence that in 2003 he and his mother had a dispute over her involvement in an argument between him and his wife. This probably played a part in Mrs Nash’s decision to make the will of 5 December 2003, and to execute at the same time the power of attorney and the appointment of an enduring guardian. There is evidence that she was upset by Mr and Mrs Nash arguing. It is likely that from about this time Mrs Nash was more concerned to move out than before.
It suffices to find, as I do, that it was Mrs Nash’s own decision to move out of Mr Nash’s property, and to move in with Mr Thomas and Mrs Thomas.
It is common ground that after Mrs Nash moved out, the issue of Mr Nash repaying the loan by his mother was the subject of correspondence and some telephone conversations with Mr and Mrs Thomas. I accept that Mr and Mrs Thomas were acting on behalf of Mrs Nash, and that they believed that they were acting in her interests. I accept that the relationship between Mr Nash and his mother was strained, but that was because of the issues surrounding the loan. I find that there was a degree of hostility between Mr and Mrs Thomas on the one hand and Mr Nash on the other, but that on the part of Mr and Mrs Thomas this was attributable to the circumstance, as they saw it, that Mrs Nash was upset because of her inability to recover her money.

It is also common ground that after Mrs Nash moved in with Mr and Mrs Thomas, there was virtually no contact between Mrs Nash and her two sons. The sons’ explanations for this were not convincing. Mr Nash could easily have telephoned Mrs Nash, or visited her during the day when Mrs Thomas and Mr Thomas were at work. I do not accept his evidence that Mr and Mrs Thomas would not have allowed him to have contact with his mother. Nor is there reason to think that they would have put difficulties in the way of John Nash having more contact with his mother.
I do not need to decide just why Mr Nash and John Nash had so little contact with their mother. It suffices to find, as I do, that the lack of contact upset Mrs Nash, and understandably so from her point of view. I am satisfied that this played a part in her decision about her will.
There is no doubt that Mrs Nash was aggrieved and upset, from about 2003, by the difficulty she was having in obtaining repayment of the loan to Mr Nash.
I do not find that Mr Nash was determined not to repay his mother under any circumstances. I accept that in 1996 Mrs Nash changed her mind about moving out. In 1997 Mr Nash persuaded her that the proposed purchase of accommodation was unwise. There must have been some discussions with Mrs Nash about repayment on other occasions, because all of the evidence indicates that for a number of years Mrs Nash was telling people, such as Dr Rachootin and Mrs Thomas, about her concern that she would not get her money, and about her distress as a result of that. When demands for repayment were made in the latter part of 2005, Mr Nash temporised: see, for example, D24. By then relationships were strained. The fact is that, without refusing to pay, Mr Nash gave no indication of a willingness to do so.
It is understandable that Mrs Nash believed, as I find she did, that she was unlikely to be repaid. She might or might not have been correct, but her belief was not unfounded, and was certainly not irrational.
Mr Nash did not produce the loan agreement between him and his mother, although on several occasions I invited him to do so. His reluctance is curious. Its effect is summarised in D24, a letter of 3 August 2005 from a solicitor for Mrs Nash to Mr Nash. It suffices to say that the agreement was not a simple one. The evidence suggests that it was drafted by Mr Nash, taking as a precedent a standard form agreement for entry into a retirement home of some kind. It would be surprising if Mrs Nash understood how the agreement operated. As well as being somewhat complicated, it was probably not well drawn. This would have added to her sense of frustration.
The issue of the loan clearly soured the relationship between Mrs Nash and Mr Nash, and I so find. I do not need to decide just why Mr Nash never repaid the loan. I accept that by 2006 (after the will was made), he was unable to do so, for the reasons outlined earlier. But the significant finding that I make is that Mrs Nash was understandably frustrated and upset over the situation, and was understandably angry with Mr Nash. There was apparent reluctance on his part to repay the money, and I have no doubt, having seen him in court, that any discussions with him would have quickly descended to a mass of frustrating detail.
I find that the lack of contact with Mr Nash once Mrs Nash moved out, and the difficulties over the loan, led Mrs Nash to decide to exclude Mr Nash from any benefits under her will. In fact, her only significant asset was the loan. I am satisfied that the relationship between Mrs Nash and Mr Nash was deteriorating before she moved out, because of the issue of the loan. I find that the lack of contact contributed to this decision to exclude John Nash from benefits under the will. In the circumstances, Mrs Nash’s decision to exclude Mr Nash and John Nash from benefits under her will does not suggest irrationality or an inability to assess the claims on her estate.
I agree with Mr Nash that Mr and Mrs Thomas have been treated more favourably than he or John Nash were treated. In 1998, Mr and Mrs Thomas received a gift of $10,000, a substantial amount, when Mrs Nash released part of the debt they owed to her. It appears that the balance of the debt, $46,000, was released later. Along the way they received a number of gifts from Mrs Nash. If, as executors, they recover the loan to Mr Nash, they will then as beneficiaries have received the whole of Mrs Nash’s assets. But, in the circumstances outlined above, it is understandable how this came about. This circumstance does not suggest an incapacity to assess claims on Mrs Nash, nor does it suggest an irrational attitude or any delusion on the part of Mrs Nash in relation to Mr Nash. The issue is not whether I consider that Mrs Nash has been fair. The issue is whether the contents of the will give rise to a doubt about Mrs Nash’s capacity that is not displaced by the evidence. The contents of the will do not give rise to such a doubt.
There is no hint of any complaint by Mrs Nash to Dr Rachootin, whom she evidently trusted, that she was under any pressure from Mrs Thomas or Mr Thomas to make a will in their favour, or to benefit them. Although Mr Nash suggested that Mr and Mrs Thomas were desperate to obtain funds when they were building their new house (in 2004 and 2005), there is no evidence to support that suggestion. I reject it. I accept Mrs Thomas’ evidence that she and Mr Thomas were able to meet their commitments: T220.
The decision by Mr and Mrs Thomas, and Mrs Nash, to decline to participate in a family meeting is not suspicious. It does not suggest an attempt by Mr Thomas or Mrs Thomas to avoid facing issues that had to be faced, or to conceal things from Mrs Nash. The matters proposed by Mr Nash for discussion are set out in D5. Some of the matters are reasonable issues to raise; some (for example, what happens if Mr and Mrs Thomas “have a marital problem”?) are inappropriate or intrusive; some are premature (for example, what happens if Mrs Nash has to move to a nursing home?). It is unlikely that the proposed meeting would have cleared the air. It is likely to have been upsetting for Mrs Nash, and to have led to arguments between Mr Nash and Mr and Mrs Thomas. There is nothing suspicious about Mr and Mrs Thomas and Mrs Nash declining to participate in the proposed meeting.
I have considered the evidence as to Mrs Nash’s physical and mental capacity, and also now the circumstances as a whole. I have reflected on the circumstances leading up to the making of the will, the making of the will itself, and the contents of the will. I am satisfied that Mrs Nash had capacity to make the will. There is nothing in the circumstances that leaves a doubt about her capacity that is an obstacle to that conclusion. The matters raised by Mr Nash are readily explicable when the circumstances are known.
I am satisfied that Mrs Nash satisfied the criteria for testamentary capacity set out above at [71]-[77].
Undue influence
Mr Nash’s submission that the will is attributable to the exercise of undue influence by Mr and Mrs Thomas requires separate consideration.
I will summarise the submission by Mr Nash, with some additions that I consider he would adopt.
Over 18 months or so preceding the will Mrs Nash was dissatisfied with Mr Nash’s failure to repay the loan. Mr and Mrs Thomas were desperate for money to pay for the house to be built at Somerton Park – they purchased the land in July 2003. Mr and Mrs Thomas worked on Mrs Nash, suggesting that if she came to live with them in a new house, her problems (the loan, dissatisfaction with the existing accommodation, perhaps some of her health problems) would be solved. Her health was poor and getting worse. Her mental state was poor, she was forgetful and struggling to cope. Mrs Nash was vulnerable because of this, and because she was concerned about her declining health and where she would live. She became alienated from Mr Nash. She fell under the influence of Mr Thomas and Mrs Thomas. They kept her away from Mr Nash and John Nash once she had moved. Once she was living with Mr and Mrs Thomas, Mrs Nash was dependent on them for her care and accommodation. She was dependent on them emotionally. Her ability to resist them was minimal. They were easily able to overcome her will, and cause her to make the will in question, she having no free choice in the matter.
The final proposition is a conclusion to be drawn, if at all, from the preceding circumstances.
I am not prepared to so conclude.
I agree that Mrs Nash was dissatisfied with Mr Nash. She had reason to be dissatisfied. I reject the submission that Mr and Mrs Thomas were desperate for money. There is no evidence that they worked on Mrs Nash to come to live with them. She wanted to leave Mr Nash’s property. There is no evidence of Mrs Nash saying that a move to Somerton Park would solve all of her problems. Her health was failing, but there is evidence that I accept that she was reasonably active, took an interest in the world around her, and knew her own mind. I reject Mr Nash’s submission that she was barely able to cope with life. It is true that once Mrs Nash went to live with Mr and Mrs Thomas, she was beholden to them. But there is no evidence that Mrs Nash was likely to allow Mr and Mrs Thomas to overbear her will. Nor is that an inference that I would draw from the evidence before me. There is no evidence that Mr and Mrs Thomas isolated Mrs Nash from her sons, and so no basis for inferring that they tried to prevent her disclosing to them what she was proposing to do and what she had done. The evidence of Dr Bulling, Dr Rachootin and Mr Fisher does not necessarily exclude a finding of undue influence, but that evidence tends to undermine the basis upon which Mr Nash seeks that finding.
When I stand back and look at what is left, it does not support a conclusion that, having brought Mrs Nash to live with them, Mr and Mrs Thomas exercised such influence and persuasion as to deprive her of a free choice. I reject Mr Nash’s submission. It is based largely on surmise and suspicion, attributable to his mistrust of Mr Thomas and Mrs Thomas.
Conclusion
I am satisfied that the will was validly made.
The Court pronounces for the force and validity of the last will and testament of Violet Frances Nash late of 9 Mayfair Avenue Somerton Park 5044 in the State of South Australia the above named deceased being the document dated the 27^th day of September 2005 referred to as exhibit A in the affidavit of Peter Grant Fisher sworn on 21 March 2007 filed in the probate file No. 007-564 and propounded on behalf of the plaintiffs.
I will hear the parties on the question of the costs of the action.