Williams v Public Trustee of New South Wales (No 2)

[2007] NSWSC 974

CITATION:	Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974
HEARING DATE(S):	6, 7, 20 & 21 August 2007 and later written submissions in reply from Plaintiff
JUDGMENT DATE :	4 September 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
DECISION:	Judgment for the Defendant on the Plaintiff’s Amended Statement of Claim.
CATCHWORDS:	SUCCESSION – WILLS – Plaintiff sought probate of informal will – whether Court satisfied that Deceased had executed informal will - TESTAMENTARY CAPACITY – Whether deceased had testamentary capacity at time of earlier will.
LEGISLATION CITED:	Evidence Act 1995 (NSW) – s.136 Wills, Probate and Administration Act 1898 (NSW) – s.18A(1)
CASES CITED:	- Bailey v Bailey (1924) 34 CLR 558 - Banks v Goodfellow (1870) LR5QB 549 - Burnside v Mulgrew [2007] NSWSC 550 - Eger, Re; Helprin v Eger (unrep) NSWSC 4 February 1985 per Powell J - Hatsatouris v Hatsatouris [2001] NSWCA 408 - Jeans v Cleary [2006] NSWSC 647 - R v Doney (2001) 126 A Crim R 271 - Shorter v Hodges (1988) 14 NSWLR 698
PARTIES:	Susan Diane Williams (aka Dionnet) – Plaintiff Public Trustee of New South Wales – Defendant
FILE NUMBER(S):	SC 106723/06
COUNSEL:	L.J. Ellison SC – Plaintiff P. Hallen SC – Defendant
SOLICITORS:	David Pain & Co – Plaintiff Clinch Neville Long – Defendant

106723/06 Williams v Public Trustee of New South Wales (No 2)

JUDGMENT
4 September, 2007

Introduction

1    The Plaintiff has been fighting her mother and two brothers for many years, first over control of the assets of her grandmother and then over control of the assets of her grand-uncle. While her grandmother and grand-uncle were alive, the war was waged in the Guardianship Tribunal, each side seeking either to gain control or to exclude the other side from control of the assets.

2    The grandmother and the grand-uncle have died. The war has been continued in these proceedings, which concern the validity of several wills made by the grand-uncle. An allegation of forgery has been made. The battle is an exceedingly bitter one. Whatever is the result in these proceedings, the war will not end in this Court.

3    Allan Gleeson (“the Deceased”) died on 20 June 2003, aged eighty-two years. On 15 October 2003, the Public Trustee obtained probate of a will dated 4 August 1997 (“the 4 August Will”).

4    On 2 May 2006, the Plaintiff, who is the grand-niece of the Deceased’s wife, commenced proceedings in which, by her Amended Statement of Claim:

– she alleges that on 30 November 2003 she discovered an informal testamentary document dated 24 August 1997, signed by the Deceased, which leaves the whole of the Deceased’s estate to her (“the 24 August Will”);

– she seeks orders revoking the grant of probate of the 4 August Will and granting to her Letters of Administration CTA in respect of the 24 August Will;

– in the alternative, she seeks revocation of the grant of probate of the 4 August Will on the grounds that the Deceased lacked testamentary capacity at that time and a grant of probate of a will dated 17 August 1995 which leaves the whole of the Deceased’s estate to her (“the 1995 Will”).

5    The Plaintiff concedes that, if she is successful in proving that the Deceased lacked testamentary capacity in making the 4 August Will then it will follow that he lacked testamentary capacity in making the 24 August Will. In that event, the Plaintiff seeks to prove the 1995 Will.

6    The Public Trustee, who is the Defendant, contends that:

– the Deceased had testamentary capacity when he made the 4 August Will;

– the Deceased’s signature on the 24 August Will is a forgery;

– if the Deceased’s signature is not a forgery, nevertheless the 24 August Will does not qualify as the Deceased’s last will under s.18A(1) Wills, Probate and Administration Act 1898 (NSW) (“WPA”);

– the grant of probate of the 4 August Will should not be disturbed.

7 The Defendant says that if it is found that the Deceased lacked testamentary in making the 4 August Will, it will be found that he lacked testamentary capacity in making the 24 August Will, if that document was indeed signed by him and otherwise qualifies as a will under s.18A(1) WPA. The Defendant does not dispute that the Deceased had testamentary capacity at the time he made the 1995 Will.

8    The parties agree that I should deal with the issues in the following order:

– has the Plaintiff proved that the 24 August Will was executed by the Deceased;

– if ‘yes’, has the Plaintiff proved that the 24 August Will qualifies as a will under s.18A WPA;

– did the Deceased have testamentary capacity in August 1997 when making the 4 August Will and, if applicable, the 24 August Will.

Background facts and circumstances

9    The Deceased was born on 20 November 1920. He was married once, to Norma Gleeson, who died on 9 June 1995. There were no children of the marriage.

10    On 25 January 1989, the Deceased made a will which was prepared by the Public Trustee at its Chatswood office. The will appointed the Public Trustee as executor and left the whole of the Deceased’s estate to his wife provided that, if she pre-deceased him, the estate was to go to the Plaintiff and her brothers, Stephen and Neville Christie, in equal shares.

11    The Deceased and his wife had, since about 1947, lived at 9 Phoenix Street, Lane Cove. The property was owned by them as joint tenants. In about 1993, the Plaintiff came to live with her grandmother, Mrs Round, the sister of the Deceased’s wife, who lived next door to the Deceased and his wife at 11 Phoenix Street. The Plaintiff says that after the death of the Deceased’s wife in 1995, she gave him substantial assistance, cleaning his house, doing laundry and providing meals.

12    On 17 August 1995, shortly after the death of the Deceased’s wife, the Deceased made a new will, again prepared by the Public Trustee at its Chatswood office. The will appointed the Public Trustee as executor and gave the whole of the Deceased’s estate to the Plaintiff provided that, if she pre-deceased him, the estate was to go to her children. As I have mentioned, there is no dispute that the Deceased had testamentary capacity at the time of making this will.

13    On 2 December 1997, a little more than three months after the disputed wills were made, the Guardianship Tribunal (“Tribunal”) made an Interim Order under the Guardianship Act 1987 (NSW) appointing the Protective Commissioner to manage the Deceased’s estate. On 31 March 1998, the Tribunal found that the Deceased was in need of a guardian but that there was no present need for a Guardianship Order, although there was a need for his financial affairs to be managed. Accordingly, the Tribunal dismissed the guardianship application, which had been made by Neville and Stephen Christie, and appointed the Plaintiff to manage his estate under the supervision of the Protective Commissioner. The reasons of the Tribunal for these orders have provided a great deal of useful information and I shall refer to them hereafter.

Power of Attorney and Deed of Trust

14    The circumstances in which the Deceased came to execute a Power of Attorney and a Deed of Trust, the latter substantially benefiting the Plaintiff, are relevant in evaluating the Plaintiff’s evidence as to the genuineness of the 24 August Will.

15    On 26 May 1997, the Deceased executed a General Power of Attorney in favour of the Plaintiff. Attached to the Power of Attorney, is a certificate under s.163F given by Lewis Webb, solicitor, which certifies that Mr Webb explained the Power of Attorney to the Deceased before it was executed.

16    Mr Webb was a partner of Messrs Grogan & Webb, solicitors, who had been acting for the Plaintiff in proceedings before the Tribunal commenced by the Plaintiff’s mother, Mrs Fay Christie, concerning Mrs Round’s estate. The Plaintiff was resisting any orders in those proceedings. Mrs Christie was asserting that Mrs Round required protection from the influence of the Plaintiff.

17    The Plaintiff did not explain why the Power of Attorney in her favour was obtained from the Deceased. However, she admitted that she had concerns about the Deceased’s mental state by May 1997. By that time, the Deceased was manifesting the signs of a dementia which was later to become more severe. Mini mental state examinations of the Deceased on 23 June 1997 and 3 July 1997 gave scores respectively of 20/30 and 21/30, which were relatively low, as the Tribunal noted in its reasons of 31 March 1998.

18    It is a clear inference that the Power of Attorney was obtained at a time when the Plaintiff and her then partner, Mr Dionnet, were contemplating the sale of the Deceased’s Lane Cove house and the use of the proceeds to purchase a larger house for themselves, their several children and the Deceased. This is what happened.

19    In about July 1997, the Plaintiff and Mr Dionnet arranged for the purchase of a house in Castle Hill for $405,000. The contract was in their names as purchasers. The deposit was provided from the Deceased’s money. A mortgage of $400,000 was taken out over the property in order to provide the balance of the purchase price. The Deceased’s property at Lane Cove was then sold for $600,000 and the proceeds went to discharge the $400,000 mortgage over the Castle Hill property. The Plaintiff, Mr Dionnet, their respective children and the Deceased took up residence in the Castle Hill property, the Deceased occupying a separate granny flat. Accordingly, although the Deceased occupied a relatively small area in the house, the whole of the purchase price had been provided by him.

20    The Plaintiff’s solicitor, Mr Grogan of Messrs Grogan & Webb, acted for Mr and Mrs Dionnet in the purchase of the Castle Hill property and for the Deceased in the sale of his Lane Cove house.

21    The Plaintiff says that she did not participate in obtaining the Power of Attorney in her favour and that it was not at her suggestion that it was obtained: T 24.18. This evidence is difficult to accept in light of the Deceased’s state of mental impairment by May 1997 and in view of the fact that the Power of Attorney was prepared by the firm of solicitors which acted for her in the conveyancing transactions, and was explained to the Deceased by one of the partners of that firm.

22    A Deed of Trust dated 25 September 1997 relating to the Castle Hill property was executed by the Plaintiff, Mr Dionnet and by the Deceased. It acknowledged that the Plaintiff and Mr Dionnet held the Castle Hill property in trust for the Deceased. The Deed was prepared by Messrs Grogan & Webb. Mr Grogan witnessed the signatures of the Deceased, Mr Dionnet and the Plaintiff.

23    Aspects of the Deed of Trust are troubling, particularly in light of the fact that by September 1997 the Deceased was already suffering from some degree of mental impairment – the precise degree of which I will come to shortly – and the same solicitor was acting for both the Deceased and for the Plaintiff and Mr Dionnet.

24    Recital A of the Deed provides:

“The Beneficiary is and has at all times been over the age of eighteen years and not subject to a legal disability.”

25    In view of the concerns which the Plaintiff said she had by May 1997 as to the Deceased’s mental capacity, and in view of the results of the mini mental tests in June and July 1997, one wonders why this Recital was included and what justification Mr Grogan, supposedly acting on behalf of the Deceased, had for including it. Mr Grogan has not been called to give evidence.

26    Other troubling provisions of the Deed are as follows:

“RECITAL C. The deposit and all other monies required to be paid for the purchase of, or to retain and maintain, the trust estate have been provided and will at all times during the continuance of this trust be provided by the Beneficiary.

…

3. The parties hereby agree that in the absence of instructions from the Beneficiary the Trustees may act as they see fit and the Beneficiary shall be bound by the acts of the Trustees in this regard.

4. The Beneficiary shall provide the Trustees with all monies necessary to hold and to continue to hold and maintain the trust estate on trust for the Beneficiary as and when such monies are due to be, or in the opinion of the Trustees should be, paid. The Beneficiary shall further provide the Trustees with all monies which may be required by the Trustees to enable them to perform and comply with the covenants terms and conditions contained in any mortgage or charge which the Trustees may execute over or in respect of the trust estate at the request of the Beneficiary either alone or together with the Beneficiary. Nothing in this clause shall make it incumbent on the Trustees to enter into any mortgage, charge or lease in respect of the trust estate.

5. The Trustees shall notify the Beneficiary of all notices, assessments, claims or demands which the Trustees receive in respect of the trust estate and shall promptly pay all outgoings including rates, taxes and charges of all kinds from funds provided by the Beneficiary.

6. The Beneficiary covenants with the Trustees to keep the Trustees at all times indemnified against all loss and liability of any kind whatsoever in respect of or arising out of the Trustees acting as Trustees of the trust estate. The Beneficiary agrees that all funds or property which may become subject to these trusts shall stand charged with and be security for the Trustees’ performance of the trusts arising under this deed to the extent that the Trustees shall have the benefit of the charge constituted by way of security in respect of all rights of reimbursement and indemnity to which the Trustees may be or become entitled to in respect of the covenants on the part of the Trustees contained in this deed.

…

9. The Trustees may, without prior reference to or authority of the Beneficiary, make such decisions and take such action or refrain from taking such action, as they may in their absolute discretion decide, over or in respect of the trust estate. The Beneficiary shall accept and be bound by all such actions or decisions of the Trustees without having any recourse against the Trustees. The provisions of this clause shall not operate to protect the Trustees for dishonesty or wilful neglect of the Trustees in carrying out their duties or delegations hereunder.

10. The Trustees shall not be entitled to capital or income of the trust fund beneficially other than by way of reasonable remuneration for service rendered or performed so that subject to the foregoing no provisions of this deed shall operate so as to confer or be capable of conferring any benefit to or on the Trustees directly or indirectly out of the trust estate.”

27    These provisions may be said to weigh very much in favour of the Plaintiff and Mr Dionnet: they were provided with a house for themselves and their children wholly at the expense of the Deceased; they were entitled to deal with the property without reference to the Deceased; they were entitled to “remuneration” for their services but were not required to perform any specific services for the Deceased; the Deceased was not expressly given any right to reside in the property.

28    The Tribunal was troubled by the one-sidedness of the whole arrangement whereby the Deceased’s house came to be sold and the Deed of Trust entered into, the same solicitor acting for the Deceased and the Plaintiff and Mr Dionnet. The Tribunal was troubled by the fact that the Deceased had not had independent legal advice given to him prior to the completion of the transaction: see the Tribunal’s reasons of 2 December 1997, para 4.6 (Exhibit P1 pp40-41) and the Tribunal’s reasons of 31 March 1998, para 4.7 (Exhibit P1 p58).

29    I share the Tribunal’s concerns. The transaction is capable of suggesting that the Plaintiff was willing to take advantage of the Deceased’s mental infirmity to secure a very substantial financial benefit for herself.

30    I appreciate very well that there is no claim in these proceedings that the Plaintiff procured the 24 August Will (if it be genuine) or any other financial advantage (including the trust arrangement) from the Deceased by undue influence or other unconscionable means. However, the history of the Plaintiff’s dealings with the Deceased’s property is, in my view, part of the circumstances which I must take into account in assessing the credit of the Plaintiff, particularly as to the genuineness of the 24 August Will. The arrangements which the Plaintiff made for the sale of the Deceased’s Lane Cove home and the acquisition of the Castle Hill property at a time when the Deceased was clearly suffering from some mental disability demonstrate that the Plaintiff was very concerned to ensure that she and Mr Dionnet had control of the only substantial asset of the Deceased.

31    Of some significance in this regard is the Plaintiff’s conduct and statements after the Deceased’s death. Unquestionably, she knew that the whole of the money for the purchase of the Castle Hill property had been provided by the Deceased, and that she and Mr Dionnet held that property on trust for him. She must have known that there was no provision in the Deed of Trust whereby the property passed to her on the Deceased’s death.

32    In a letter dated 1 October 2003 to the Public Trustee, the Plaintiff said:

“I refer to your recent letter requesting that I have my property (referring to the Castle Hill house) valued. Frankly, I do not understand why that is necessary. The above property was (as you also stated in one of your letters) purchased by me in 1997. Not only did I personally purchase the property but I also took out a mortgage on the property so as to secure my property.

You have stated that I am not a beneficiary of Mr Gleeson’s estate and therefore do not have any right to knowing any details of the estate so my question is why are you bothering me with your questions re: 9 Phoenix Street Lane Cove and why are you harassing me regarding my property? Mr Gleeson’s name has never been connected with the Title of this property.

I will be contesting the latest written will allegedly made by Mr Gleeson on the grounds that round about the time it was made Mr Gleeson was whisked away from where he was playing Bingo in a club and taken to the Central Coast without my knowledge. After three days was returned home very disorientated and not knowing where he had been. The Police have a report. I will also be filing, through a solicitor, for a copy of the Will so I can compare the signature with legal documents that I am holding and in fact the Will which I am holding. Mr Gleeson actually made a spoken Will at the Guardianship Tribunal held in April 1998 whereby he pointed to the beneficiaries (I believe) of the Will, who actually instigated the Tribunal Hearing in November o 1997, which you are now holding and said ‘ he did not want anything to do with them and that he wanted Susan to have everything’.

There is a Trust Document which was drawn up some time after the initiation of the purchase of my property which set out how Mr Gleeson wanted to pay for outgoings on my home. Mr Gleeson did this as I gave a [sic] a well paid job to become his sole carer and he wanted to make sure that I was financially secure whilst caring for him. Mr Gleeson was aware that he had the onset of Dementia and made plans for when he could no longer care for himself. I also hold a Power of Attorney which was also drawn up for the same reason.”

33    I make allowance for the fact that, at the time that the Plaintiff wrote this letter, her emotions must have been aroused by the prospect that she would be deprived of the benefit of the Castle Hill property if the 4 August Will was proved. Nevertheless, the statements that she “personally purchased” the property and “took out a mortgage on the property so as to secure my property”, and that the Deed of Trust was to provide for payment of outgoings “on my home”, were not true. I do not accept the explanation, at T35.5, that when she wrote the letter she believed that the property was hers and was not the property of the Deceased.

The making of the 4 August Will

34    In her affidavit of 13 March 2006, the Plaintiff said:

“On 3 August 1997, the deceased did not return home from Bingo. I reported him missing to the Police. At my insistence, after ringing everywhere possible to locate the deceased including the local Clubs he often attended, the Police telephoned my parents home at Toukley on the Central Coast. The Police advised me they had telephoned my brother Neville Christie at Toukley and the deceased was with him. The deceased returned two days later, still wearing the same clothes he had left for Bingo in three days earlier. Annexed hereto and marked ‘C’ is a true copy of a Will dated 4 August 1997 apparently prepared by the Public Trustee at Gosford. I do not have any personal knowledge as to how the deceased got to the Public Trustee at Gosford. At no time did the deceased advise me he had executed a new will whilst at the Central Coast from 3 to 6 August 1997.”

35    In her affidavit of 6 July 2007, the Plaintiff amplified this evidence as follows:

“In or about late July, early August 1997, I came home from work to discover Allan was not at his home. I made some enquiries with neighbours and the club to discover that Allan had attended Bingo that day, which means it was either a Tuesday or a Thursday. After speaking with neighbours, I concluded he had attended Bingo and had not returned home. As I could not locate him I concluded he had attended Bingo and had not returned home. As I could not locate him I reported Allan missing to the Police and filed a missing persons report. Very late that evening, after I had contacted police, a police officer rang me to advise me that they had located Allan at Toukley at ‘my relatives’ house. I was distressed that he had gone without telling me. I assumed the trip to Toukley was not arranged as I had originally checked his house when I couldn’t find him and noticed that nothing appeared to be missing. There were no clothes, shoes, bags or other things absent.”

36    In this evidence the Plaintiff was clearly saying that she discovered that the Deceased was missing, made enquiries without success and, having no idea where he could be, contacted the Police to report the Deceased as a missing person.

37    In her first affidavit she says that she insisted that the Police call her parents’ house at Toukley and that she was later advised by the Police that the Deceased was with her brother, Neville.

38    In her second affidavit the Plaintiff says nothing about insisting that the Police call her parents at Toukley. She gives the impression that she had no idea where the Deceased might have been.

39    A copy of the Police report of the incident is in evidence. It shows that the Plaintiff reported the Deceased as missing on 6.30pm on 31 July 1997. A record of what was said by the Plaintiff was created at 6.53pm the same day. It states:

“The [Deceased] went to North Sydney Leagues Club on 31/7/97 to go Bingo. He usually returns between 2 and 3pm but at this stage has not returned. The [Deceased] suffers from dementia. The [Plaintiff] is concerned for the welfare of the [Deceased] as on 30/7/97, the [Plaintiff’s] brother contacted the [Deceased] stating that he was going to come down and get him/see him. Allegedly, 18mths ago the [Plaintiff’s] brother, Neville Christie 40 old of 56 Woodlands Prkway Buff Point Ph [phone], assaulted both the [Plaintiff] and [Deceased]. [Plaintiff] is concerned that he may have come down and taken the [Deceased].”

40    A further record was created at 11.32pm on 31 July 1997. It states:

“At 8:15pm on Thursday the 31/7/97, TOUKLEY police attended 43 Athol Street, TOUKLEY in relation to the [Deceased]. Police found [Deceased] staying with Fay and Max CHRISTIE at this address. [Deceased] stated that he was okay, and would be staying for a few days. After speaking to the informant in this matter, [Plaintiff] and her brother, Neville CHRISTIE, it appears that both parties are involved in court proceedings to control [Deceased’s] legal and daily affairs due to his deteriorating mental health. [Plaintiff] has stated that she has legal control of [Deceased’s] legal affairs but could provided [sic] no evidence of this. When reporting this matter to police she has stated that her brother is unstable, a drug addict, and given police the impression that her brother may have taken [Deceased] against his will to TOUKLEY. The brother Neville CHRISTIE has stated that the informant has been disowned by her family. He said that his sister is intimidating [Deceased] to gain access to his assets. At this stage it is unknown who is telling the truth.”

41    It is obvious from the Police record created at 6.53pm on 31 July 1997 that the Plaintiff told the Police officer that Neville Christie had contacted the Deceased on the previous day, saying that he was coming to see him or pick him up to take him somewhere. It is clear that the Plaintiff gave the Police officer particulars of Neville’s address and telephone number and said that Neville had previously assaulted both her and the Deceased. From the record created at 11.32pm that day it is clear that when the Police officer rang to tell the Plaintiff that the Deceased had been found at the house of the Plaintiff’s parents, the Plaintiff gave the Police officer her version of the struggle between herself and her brothers over control of the Deceased’s assets.

42    None of this is even faintly suggested in the affidavit evidence of the Plaintiff.

43    When confronted in cross examination by the content of the Police report, the Plaintiff denied telling the Police officer anything to the effect that Neville had contacted the Deceased on 30 July and had indicated that he would come to see the Deceased the next day. She denied saying anything other than that her grand-uncle was missing, he had dementia, and she was really concerned for his safety. She said that, at the time, she had assumed that the Deceased had got off at the wrong bus stop or had otherwise got lost. She denied giving the Police the address and telephone number of her brother, saying that she did not know these particulars at the time.

44    A few minutes later, she said that, when first reporting the Deceased as missing, she had been asked were there any relatives of the Deceased and she had given the telephone number of her parents. This was consistent with the evidence in her first affidavit but not with the evidence in her second affidavit, nor with what she had said a few minutes earlier in cross examination. Contrary to what appears in the Police report, the Plaintiff said that it was when she spoke to the Police on the second occasion that she told them that Neville had assaulted her and the Deceased.

45    I do not accept the evidence of the Plaintiff as to what occurred on 31 July. I do not accept her evidence that she did not say what appears in the Police report as attributed to her when reporting the Deceased as missing. She could not explain how the Police officer could have known her brother’s name, address and telephone number unless she had given them to him. Not only was her evidence implausible and inconsistent, but her demeanour in giving that evidence did not inspire confidence in its reliability.

46    From these circumstances I infer that what in fact occurred was that when the Plaintiff could not find the Deceased on 31 July she feared that Neville Christie had come to collect him, as had been indicated the previous day, and had taken him back to Toukley. The Plaintiff was apprehensive that Neville and her mother might influence the Deceased to do something with his assets or estate and she wished the Police to intervene to interrupt whatever might be happening, suggesting to the Police that Neville may have been holding the Deceased against his will.

47    This incident is significant, as it shows that the Plaintiff was prepared to go to considerable lengths to prevent her mother and brothers from having any influence over the financial affairs of the Deceased. It shows also that the Plaintiff is prepared to be somewhat less than frank in her evidence.

48    There is very little evidence as to what led the Deceased to make the will of 4 August.

49    Clearly, the Deceased was at Toukley, at Mrs Christie’s house, on 31 July 1997. On 4 August he presented himself at the office of the Public Trustee at Gosford wishing to make a will. He had with him a certificate dated 1 August 1997 from Dr Valerie Redwin. Dr Redwin practises at Lane Cove. The Deceased must have returned to Sydney on 1 August for examination by Dr Redwin, and then gone back to Toukley shortly afterwards. It is a fair inference that he was driven to and from Sydney by a member or members of Mrs Christie’s family.

50 Mrs Christie has sworn an affidavit in these proceedings but she declined to present herself for cross examination on the ground of ill health. I was not persuaded by a brief letter from her doctor that the risk to her health was such as to justify permitting her affidavit to be read without cross examination. It so happens that Mrs Christie’s affidavit is now in evidence as being part of a bundle of documents provided to the Plaintiff’s expert psychiatrist for the purposes of his report. However, in view of the hostility between the parties and the effect which that hostility may have on the reliability of evidence, I do not accept Mrs Christie’s affidavit as evidence of the truth of the statements made therein, so that its admission is limited under s.136 of the Evidence Act 1995 (NSW).

51    There is no record of whether the Deceased himself arranged the appointment with the Public Trustee on 4 August or whether it was done by someone on his behalf. However, it is of some significance that having the will prepared by the Public Trustee was in accordance with the Deceased’s own practice in the case of the 1989 and 1995 Wills.

52    It is a clear inference that the Deceased had Dr Redwin’s certificate with him when he came to the Public Trustee’s office on 4 August because he, or someone on his behalf, had made an enquiry with the Public Trustee as to what was required if there was a possibility that someone intending to make a will lacked testamentary capacity. In such circumstances, it was the policy of the Public Trustee to advise that a doctor’s certificate should be brought to the interview at which instructions for the will were to be taken.

53    Dr Redwin’s certificate states:

“This is to certify that I have examined Allan Gleeson today and find him to be of sound mind and able to manage his own affairs. He does have some short-term memory loss.”

Dr Redwin has no independent recollection of her examination of the Deceased which led to the giving of the certificate.

54    Three officers of the Public Trustee gave evidence of what transpired when the Deceased attended at the Public Trustee’s office and made his will on 4 August. The senior officer was Mr McLachlan, the Branch Manager. He had had many years of experience at the Public Trustee office and had taken instructions for thousands of wills. The next senior officer was Ms Francis, who had been in the Public Trustee’s office in various positions since 1984. She also was highly experienced in taking will instructions. The most junior officer was Ms Jackson, who had been in the Public Trustee’s office since 1989 and had frequently acted as a witness to the execution of wills.

55    None of the Public Trustee officers has a clear independent recollection of the interview with the Deceased on 4 August, but their recollection has been assisted by full notes made at the time on a Will Information Form and also by reference to established Public Trustee policy. None of these witnesses has any recollection whether the Deceased was brought to the interview by anyone, but all are clear that no one else was present when he gave Mr McLachlan and Ms Francis his instructions for the will.

56    From information provided verbally by the Deceased, Ms Francis filled in the Will Information Form which is in evidence. Ms Francis then prepared the will and read it to the Deceased in the presence of Mr McLachlan and Ms Jackson. Ms Francis and Ms Jackson then witnessed the Deceased’s signature on the will.

57    I will return shortly to the evidence of the Public Trustee officers in dealing with the issue of testamentary capacity.

Whether 24 August Will signed by Deceased

58    The 24 August Will provides:

“ THIS IS THE LAST WILL AND TESTAMENT OF ALLAN ALFRED JOHN GLEESON OF 9 PHOENIX STREET, LANE COVE, NEW SOUTH WALES

I hereby REVOKE ALL PREVIOUS WILLS made by me (Allan Alfred John Gleeson) and make this my last Will and Testament.
Susan Diane Williams is to receive everything I own, including my property upon my death. Susan has been like a daughter to me since my wife’s death and because of that I want to make certain that Susan receives everything.

Signed Allan A J Gleeson (signature) 24 August, 1997
Witness (illegible)
Witness (illegible)”

59    There are two issues:

– did the Deceased sign the 24 August Will;

– if he did, does the document have testamentary effect under s.18A(1) WPA.

60    In answering the first question, I do not have to be satisfied by the Defendant’s evidence that the Defendant has proved the disputed signature to be a forgery, as though the Defendant bears the onus of proving that the document is not the will of the Deceased. It is the Plaintiff who is propounding the document as an informal will and the burden of proof that the document is indeed the last will of the Deceased remains with the Plaintiff: Bailey v Bailey (1924) 34 CLR 558, at 570ff; Re Eger; Helprin v Eger (unrep) NSWSC 4 February 1985 per Powell J; Burnside v Mulgrew [2007] NSWSC 550, at [12].

61    The 24 August Will was allegedly found by the Plaintiff and her daughter in unusual circumstances some five months after the Deceased’s death and after probate of the 4 August Will had already been obtained. It is not a will prepared by a solicitor. The signature of the Deceased is questioned. The signatures of both witnesses are illegible so that the witnesses cannot be identified. There is no evidence as to when, where and in what circumstances the Deceased signed the document. The document leaves the whole of the Deceased’s estate to the Plaintiff and it revokes an inconsistent will made only twenty days previously with the assistance of the Public Trustee. All of these circumstances excite suspicion so that the Court must be vigilant in requiring the Plaintiff to prove to the Court’s comfortable satisfaction that the document was actually signed by the Deceased. If the Plaintiff does not meet this standard of proof, the document will not be granted probate even though the Court is not prepared to make a positive finding of forgery.

62 As to whether the document complies with s.18A, there is no issue that the document purports to be of a testamentary character. The only question is whether, having regard to the circumstances in which the document was found, the Plaintiff has proved that the Deceased demonstrated, by some act or words, that he intended that the document should, without more on his part, operate as his will: Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56].

63    The Deceased’s purported signature on the 24 August Will has been examined by two forensic documentary examiners retained by the parties, Mr Dubedat for the Plaintiff and Ms Novotny for the Defendant. They disagree as to whether the signature is likely to be a forgery.

64    In addition to paying close attention to the evidence of the experts, I have examined for myself the questioned signature and other genuine signatures of the Deceased, as I am entitled to do: R v Doney (2001) 126 A Crim R 271, at [61]; Jeans v Cleary [2006] NSWSC 647, at [155].

65    My own comparison of the disputed signature with other genuine signatures of the Deceased does not suggest strongly that it is a forgery. As is so often the case with signatures of infirm or elderly people, the signature on the 24 August Will is shaky, with frequent interruptions. So also are genuine signatures of the Deceased made in his later years. I accept the evidence of Ms Novotny that the disputed signature has five anomalies in formation not discernable in other signatures. However, those anomalies may be explicable by a number of possibilities, such as a momentary distraction of the Deceased during signature, or slight movement of the paper.

66    In short, I could not conclude that the disputed signature is genuine, or is not genuine, by reference to the expert evidence alone. However, it would be unreal and wrong to form any such conclusion by reference only to expert handwriting evidence. Such evidence is only one part of the whole body of evidence bearing upon the authenticity of the document. As it happens, in the present case the most important evidence is that relating to the condition in which the document was found.

67    In her affidavit of 13 March 2006, the Plaintiff said that on Sunday, 30 November 2003, she asked her daughter, Stefanie, to help her clear out the garage at the Castle Hill house. There were several boxes of the Deceased’s belongings, amongst other items. Stefanie found a box in the loft of the garage. The Plaintiff quickly looked at the contents and saw that they comprised old newspaper clippings and postcards. She told Stefanie to throw the box away. She proceeded:

“Stefanie did not throw the box out. After we had finished clearing the garage, she went through the box and found the Will. Stefanie showed me the document.”

68    In her affidavit of 13 March 2006, Stefanie Williams said that when she had finished clearing the garage she went through the boxes she had been asked to throw out. She continued:

“I noticed a tin box inside the box. I opened the tin box and found several items, including a funeral fund book and a folded piece of paper. When I opened the folded piece of paper, it was a typed and signed document which I now believe is the Will of the deceased dated 24 August 1997. I gave the Will to my mother.”

There can be no doubt that in this evidence Ms Williams was saying that the piece of paper on which the 24 August Will was written was folded.

69    Ms Williams was cross examined in the afternoon of 7 August 2007. In the morning of that day, the handwriting experts had given their evidence. They had agreed that the 24 August Will (Exhibit P5) showed no signs of ever having been folded. Ms Williams went into the witness box after the luncheon adjournment. In cross examination she gave this evidence:

“A. So inside the tin box there was a newspaper article and there was some funeral, just some of those funeral books, and then I think there was some more postcards in that one, but actually inside, it was just normal newspaper and inside the newspaper, the newspaper was sort of folded over the top and in between the newspaper there was just an A4 piece of paper and I read it and it was like, from what it said, it was a will.

His Honour: Can you just tell me again, how big was this tin box?
A. Um, the tin box, it would – I'm not quite sure of the size. I know it's, they call it now a scrapbook size. It's between A3 and A4. It is just a bit bigger than A4, but they call it a scrapbook size.

His Honour: Thank you.

Hallen: Please go on. You looked through the box and what did you find?
A. Yeah. Inside the newspaper article that was folded there was an A4 document like letter and it had – at the time I don't think I really understood what it was, but, from what I know and what it said, it was a will and because I didn't quite understand it, I went and showed my Mum and talked to her about it.

Q. All right. We will come to that in a moment. Your evidence now is that you found the piece of paper in between other pieces of paper. Is that what you now say?

A. There was, no, it was in a box with newspaper clippings and like all the postcard things, but the actual letter was folded in, well, there was a newspaper article that was cut out of a newspaper and it was folded in that.”

70    Whether or not the 24 August Will was folded or was contained in the tin box without bearing any signs of folding is highly important. The original document (Exhibit P5) is an A4 sized piece of paper. There is a fold diagonally across the top left hand corner but that fold is identical to the fold on the covering exhibit page which has been stapled to it so that it is clear that the fold in Exhibit P5 was made after the document was stapled to the cover note. Otherwise, the document bears no evidence at all of ever having been folded.

71    Ms Williams’ examination did not conclude before the trial was adjourned until 20 August. When she returned to the witness box she brought the tin box in which she said she had found the 24 August Will. It is Exhibit D9.

72    As I have remarked, the 24 August Will is a piece of paper which is A4, or so little different as to be immaterial, as both experts agree. When one lays a piece of A4 paper over the tin box, it is immediately apparent that its edges and four corners overlap the edges of the box by some centimetres. It would have been quite impossible for the 24 August Will to have been placed flat in the tin box without the corners and the edges of the paper curling up or being folded up in some way.

73    The contents of the tin box were also produced. They comprise various folded pieces of paper of varying thickness which occupy probably a little less than half of the volume of the tin box. In addition, there is a pile of used postage stamps in a plastic bag. When the plastic bag is placed in the box, the plastic is higher than the sides of the box although the plastic is easily compressed. The evidence was that the tin box also contained some stones and a funeral fund book, although these are not now produced. Ms Williams said that she had kept the folded newspaper clipping inside which the 24 August Will was found, but she did not produce that clipping. She said that she could not remember where the will was in the box in relation to the other items, i.e., whether the will was on top of, at the bottom of, or somewhere in the middle of the box.

74    The tin box has a hinged lid which, when closed, is quite hard to open. In other words, when the lid is closed, it is closed very firmly and would compress anything inside which did not quite fit into the box.

75    Various experiments were tried by Ms Williams and by the experts in the witness box to see if an A4 sized piece of paper could be placed in the box with the other objects, with the lid closed, without any discernible creasing or folding. The results are in evidence but demonstrate what is common sense: discernible creases or folds were created. As the Plaintiff’s expert witness Mr Dubedat said, if a piece of paper is placed with other objects in a box which is smaller than the piece of paper, one would have expected, on the balance of probabilities, to see some discernible evidence on the paper of creasing or folding: T197.19 - .51.

76    Mr Dubedat suggested that Exhibit P5 could have been placed in the box bent over or rolled in a cylinder so that when the box was opened the paper would spring open, leaving no discernible sign of folding or creasing. I think that this suggestion is fanciful. Ms Williams did not say that that was how the document appeared when she opened the tin box. Further, placing the paper in the box in the manner suggested as possible by Mr Dubedat would not be the ordinary way in which one would place a piece of paper in a container which was too small for it if left unfolded. The Deceased had folded all other pieces of paper found in the tin box which would otherwise have been too large to fit inside the box. One would have expected him to do the same with Exhibit P5.

77    I conclude that it is highly improbable that the document which is Exhibit P5 was found inside the tin box, unfolded, as Ms Williams says.

78    I have other reservations about Ms Williams’ evidence. She was confronted in cross examination by the inconsistency between her affidavit evidence – which was that Exhibit P5 was folded when she found it – and the evidence which she immediately volunteered – after the luncheon adjournment and after the experts had given evidence in the morning that Exhibit P5 was not folded – that Exhibit P5 was not folded when she found it but was flat inside a folded newspaper. She said that the affidavit was wrong and that her instructions to the Plaintiff’s solicitors had been incorrectly recorded in the affidavit. At T124.35 - .50, she said that she had skimmed through the affidavit before signing it because she was rushing to be with her friends. At T148.24 she said that she was in a rush when reading the affidavit because she was going to her boyfriend’s house. At T149.16 - .26, she admitted that she had no recollection at all of what had happened when she signed the affidavit, and that what she had said was “what I think would have happened”.

79    It was clear from this evidence and from Ms Williams’ demeanour in giving it that Ms Williams was unable to explain the serious discrepancy between her affidavit evidence and her oral evidence, and that she had been giving evidence about how the discrepancy occurred which she had no basis for believing was true.

80    In these circumstances, I find it improbable that the 24 August Will was found inside the tin box, as Ms Williams and the Plaintiff assert.

81    To summarise:

– there is a reasonable basis in Ms Novotny’s evidence for regarding the Deceased’s purported signature on the 24 August Will as not genuine;

– there is no evidence as to when, where and in what circumstances that will was prepared and signed by the Deceased;

– there is no evidence that the Deceased had any legal advice or other assistance in preparing the will;

– the manner in which the will was prepared and executed is contrary to an established practice of the Deceased in having his wills prepared and witnessed by the Public Trustee;

– both purported witnesses to the Will cannot be identified;

– the Will leaves the whole of the Deceased’s estate to the Plaintiff, contrary to a will prepared by the Public Trustee and executed by the Deceased only twenty days earlier;

– no one but the Plaintiff and her daughter gave evidence as to the finding of the Will;

– the Will was allegedly found in November 2003, only a short time after the Plaintiff was put on notice in about September 2003 that the Defendant was in the process of realising the assets of the Deceased in the course of administering the 4 August Will;

– the Plaintiff had vigorously, but untruthfully, asserted in her letter of 1 October 2003 to the Public Trustee that the Castle Hill property, acquired with the funds of the Deceased, was hers;

– I do not regard the evidence of the Plaintiff in matters relating to the assets and affairs of the Deceased as reliable, for the reasons given earlier;

– I do not regard the evidence of Ms Williams as to the finding of the 24 August Will as plausible and reliable.

82    Having regard to the caution which the Court must exercise in assessing the Plaintiff’s case in such circumstances, I am not satisfied that the Plaintiff has proved that the 24 August Will was executed by the Deceased.

Compliance with s.18A

83    Even if the 24 August Will was executed by the Deceased, I am not satisfied that he demonstrated an intention that, without anything further to be done on his part, it should operate as his will.

84    First, contrary to his established practice, the Deceased did not involve the Public Trustee with the preparation of the will nor did he deliver it, after execution, to the Public Trustee for safe keeping.

85    Second, if the Plaintiff’s evidence is accepted, the Deceased placed the document in a tin box which contained items of no value or significance other than, perhaps, a sentimental value. There were only photocopies of a Certificate of Title and building plans of his Lane Cave house as it must have been in about 1947. There were some newspaper clippings from the Second World War. The contents of the box looked as if they had not been disturbed for many years. It is not the sort of place one would keep an important document which would need to be located quickly after one’s death.

86    Finally, the Deceased did not expressly refer to the 24 August Will, either to the Plaintiff or anyone else.

87    In these circumstances, if the Deceased actually signed the document it is possible – amongst many other possibilities – that he put it away to be taken to the Public Trustee or otherwise affirmed if, and only if, he firmly and finally changed his mind about the will he had made on 4 August 1997.

Testamentary capacity

88    In view of my conclusions as to the 24 August Will, the only will in respect of which testamentary capacity is now in issue is that of 4 August. That will was prepared with the assistance of the Public Trustee, it is rational on its face, it was duly executed by the Deceased in the presence of witnesses, and it has been granted probate. Accordingly, it is presumed to be made by a person of competent understanding, in the absence of evidence to the contrary: Shorter v Hodges (1988) 14 NSWLR 698, at 706.

89    There is direct, detailed and impartial evidence from the Public Trustee officers as to what occurred when the Deceased gave his instructions for the 4 August Will. That evidence is derived from full and careful notes made on the Will Information Form, which was completed contemporaneously with the making of the will. The evidence of the Public Trustee officers is unchallenged and I accept it without hesitation.

90    The evidence of the Public Trustee officers is that the Deceased was alone when they interviewed him and that he gave his instructions unprompted by anyone. The Will Information Form correctly records the full name, address, date of birth and former occupation of the Deceased. It records that he was a widower with no children. It records a telephone number which is said to be incorrect in two of the digits. However, it is impossible to say whether that error was made by the Deceased or by the person who took down what he said.

91    The Will Information Form lists, correctly, the names of the intended beneficiaries and their relationships to the Deceased. The name “Stephanie” is incorrectly spelled as Ms Williams spells it “Stefanie”. Again, it is impossible to say whether this error was that of the Deceased or the person who took down what he said. The error is, in any event, of no significance.

92    The Will Information Form records that the Deceased correctly gave his house at Lane Cove as the only real estate which he possessed and that he said that he owned it as sole proprietor. He said, correctly, that there was no mortgage on the title, that it was a brick and tile home built in 1947, with a 66ft frontage, and that the house was insured with the NRMA. He said that he thought the home was worth $300,000.

93    The Deceased’s Lane Cove house was sold later in 1997 for $600,000. I do not think that it is of any consequence that in August the Deceased thought the house was worth only $300,000. Elderly people who have been living in their homes for many years often have no interest in knowing what their homes are worth in current market conditions. Not everyone in Sydney is a real estate speculator.

94    The Deceased correctly gave particulars as to his bank account and other assets. He correctly gave his Department of Veteran Affairs pension number. He correctly gave the name of his wife and said that she had died some years ago.

95    In response to a request for information as to possible claimants under the Family Provision Act, the Deceased is recorded as stating:

“Name of possible claimant: Susan (i.e. the Plaintiff)
Address: 11 Phoenix Street, Lane Cove
Relationship to Testator: Niece
Reason for exclusion: Testator claims
– Susan is living with a ‘french man’ & is ‘out to get what he can get’
– feels Susan’s spouse will take Susan’s money & use it for his own purposes
– does not wish to give Susan anything
– not dependent on testator
– Susan brings the testator a ‘hot meal each night’ but he provides Susan with his bingo winnings ie food trays etc.
– Family have expressed concern about Susan & believes she will contest Will.”

96    The information which the Deceased gave as to the Plaintiff’s circumstances is not irrational on its face. The Plaintiff was indeed living at the time with a man of French birth and with a French name, Pascal Dionnet. They were not married until 1998 and they separated in January 2000 and were later divorced. The marital relationship was obviously short-lived; possibly, it was a difficult one. It is not unlikely that the Deceased witnessed whatever difficulties there may have been in the relationship and formed his own opinion as to Mr Dionnet. I have no evidence upon which I could form a view as to whether the Deceased’s opinion of Mr Dionnet was irrational.

97    The Deceased was correct in saying that the Plaintiff was not dependent on him at the time. He was correct in recording that Mrs Christie and her family had “concerns” about the Plaintiff’s intentions regarding his estate. He did not say that he agreed with those concerns and that he now regarded the Plaintiff as undeserving of any testamentary consideration. What he did say was that the Plaintiff was not dependent upon him and that he felt that if he left money to her Mr Dionnet, rather than the Plaintiff, would end up as the beneficiary. There is no evidentiary basis upon which I could properly conclude that the reasons which the testator gave for excluding the Plaintiff from the will, while including her daughters, were irrational or perverse.

98    The following notes were made in the Will Information Form as to testamentary capacity. Mr McLachlan wrote:

“He well &truly knew his assets & who his beneficiaries needed to be, he was clear in his mind about what he was doing, & was remarkable in his memory of his Dep’t of Vet pension number. We obtained a Dr’s (certificate) as it was indicated he had some short-term memory loss.”

99    Ms Francis wrote:

“Understood nature of will? – Yes – suffers short-term memory loss but was able to recall all information without prompting. Interviewed alone in presence of myself and Brian McLachlan. Testator was very lucid, clear in instructions.”

100    Ms Jackson wrote:

“I sat in Wills Room with Sue Francis and Mr Gleeson while Sue read out the will. Mr Gleeson confirmed with ‘yes’ after each clause was read (+ each beneficiary). He confirmed to Sue that these were his wishes and he signed and Sue and I witnessed.”

101    Mr McLachlan recalled that he formed the strong view at the time that the Deceased had no need of a doctor’s certificate because he was so clear in his instructions. He said, and I accept, that he would not have allowed the Deceased to continue with the process of making a will unless he had been completely satisfied that the Deceased had testamentary capacity.

102    In support of the contention that the Deceased lacked testamentary capacity when executing the 4 August Will, the Plaintiff relies on the report of Dr Parmegiani, a report of Dr Clarke, and the evidence of the Plaintiff and her former husband, Mr William Phipps.

103    Dr Parmegiani is a consultant psychiatrist, now in private practice. He has had a distinguished career, mainly in the public sector and in the insurance sector. His experience has been more in the assessment of psychiatric symptoms arising out of physical injury than in geriatric medicine. He has given evidence in less than ten or eleven cases regarding assessment of testamentary capacity.

104    Dr Parmegiani did not examine the Deceased. He based his opinion on reading a considerable volume of material provided to him by the Plaintiff’s solicitors. I have to say at the outset that as Dr Parmegiani’s cross examination progressed, I gained the impression that he was in danger of falling into the role of advocate for the Plaintiff’s cause. His report was selective in the material to which it referred. For example, it referred extensively to the allegations made by Mrs Christie and her family to the Guardianship Tribunal as to the mental state of the Deceased, although those allegations were untested. He referred to “concerns” which the Tribunal had with the Deceased’s short-term memory loss and to the mini mental state tests conducted on the Deceased in June and July 1997 which recorded “obvious memory problems”. He referred briefly to the Will Information Form completed by the Public Trustee officers when they took instructions from the Deceased for the 4 August Will. He referred to Dr Clarke’s report, which assessed the Deceased in February 1998.

105    In his report, Dr Parmegiani did not refer expressly to the test of testamentary capacity enunciated in Banks v Goodfellow (1870) LR5QB 549, at 565. He did not expressly give his opinion as to whether the Deceased understood the nature and effect of making a will, whether the Deceased understood the extent of his testamentary estate, whether he was able to comprehend and appreciate claims to which he ought to give effect, and whether his state of mind prevented him from making a rational disposition of that estate. Dr Parmegiani did not expressly state his conclusion as to whether or not the testator had testamentary capacity according to the Banks v Goodfellow test. He concluded his report thus:

“Ultimately, it is a matter for the court to determine whether Mr Gleeson had testamentary capacity on 4 August 1997. The weight of medical information however indicated that he suffered significant deficits in short-term memory, that he could be easily influenced, and that he was unable to manage his finances.”

106    However, in the witness box Dr Parmegiani asserted a definite conclusion that the Deceased lacked testamentary capacity when he executed the 4 August Will: T235.18 - .29.

107    I am not persuaded by the opinion expressed by Dr Parmegiani in cross examination that the Deceased lacked testamentary capacity. My reasons are as follows.

108    In his report, Dr Parmegiani referred to, but did not discuss at all, what was obviously critical evidence, namely, the impartial observations of experienced Public Trustee officers who had taken the Deceased’s instructions on the very day the will was prepared and executed. The reasons which he gave in cross examination for not doing so were, with respect, a little obscure. He said:

“Q. Did it not occur to you that in having regard to Mr Gleeson's testamentary capacity as at 4 August a much safer source of information would be the impartial officers of the Public Trustee experienced in taking wills from elderly people?
A. Yes.

Q. What sort of weight did you place on the information provided by the Public Trustee officers?
A. Well, obviously it is a starting point because they had an opportunity to assess Mr Gleeson at the time; however, the information that they relied upon I do not trust. In other words, what he was saying at that time and the medical report, the reassuring medical report of Dr Redwin, did not seem to be based on sound medical knowledge, so I think the decision at the time was fraught.”

109    I confess that I am not sure that I understood what Dr Parmegiani meant by this explanation. He seemed to be saying (possibly) that he did not trust the observations of the Public Trustee officers because they themselves were not doctors. Perhaps he was saying that the Public Trustee officers were relying upon Dr Redwin’s certificate but that certificate was untrustworthy because Dr Redwin had not conducted a full psychological assessment. Perhaps what he meant was that the only assessment he would rely upon was a full psychological assessment professionally conducted.

110    If Dr Parmegiani intended to say any of these things, then his reasoning was unsound. The Public Trustee officers were not themselves directly making a medical assessment of testamentary capacity which Dr Parmegiani was being asked to accept or reject. The Public Trustee officers had simply recorded what instructions the Deceased gave them, and that he had given those instructions without assistance from documents and without being prompted. They were also giving their observations of his mental state as lay people but, nevertheless, in the case of Mr McLachlan and Ms Francis, as people who had long experience in taking will instructions from those in all states and conditions. Dr Parmegiani did not grapple with the fact that the Deceased was capable of giving the information referred to in the Will Information Form, nor did he grapple with the observations of the Deceased made by the Public Trustee officers.

111    In short, Dr Parmegiani’s report fails to persuade me because it does not address each of the legal requirements for testamentary capacity, and because it fails to take into account in a meaningful way the most important and reliable evidence concerning the Deceased’s capacity, namely, what the Public Trustee officers observed and recorded at the time that the 4 August Will was made.

112    Dr Clarke is Director of Geriatric Services at the War Memorial Hospital, Waverly. At the request of the Plaintiff’s solicitors, Dr Clarke assessed the Deceased on 13 February 1998. He concluded that there was definite dementia of moderate degree. The Deceased scored 12/30 in a mini mental state examination. There were no indications of any complications of his dementia in terms of night confusion, wandering, agitation, aggression, paranoia or hallucinations.

113    Dr Clarke summarised his findings thus:

“Alzheimer’s disease is present of a moderate degree. There has been progression in the degree of dementia in that a Mini Mental State Examination in June 1997 recorded a score of 21/30. It has now deteriorated to 12/30. … I am also very definite that there is no way he could now be asked to make any sorts of changes regarding his will or other legal matters because his degree of dementia is too great for anything like that.”

114    I bear in mind that Dr Clarke’s assessment was made in February 1998, slightly more than six months after the 4 August Will was made. I bear in mind that during that time the Deceased’s degree of dementia increased. It is not possible to say what stage the dementia had reached by 4 August and whether there was a marked decline after that date. For these reasons, I do not regard Dr Clarke’s report as a strong and convincing contra-indication to the observations made and recorded by the Public Trustee officers on 4 August. If anything, Dr Clarke’s report suggests that there must have been a quite severe decline in the Deceased’s condition between 4 August 1997 and February 1998

115    The Plaintiff has given evidence as to the Deceased’s mental condition in early August 1997, when he returned from his visit to her parents’ house at Toukley. That evidence was given in the context that the Plaintiff knew that the Deceased had made the 4 August Will while visiting her parents. For the reasons which I have given, I am unable to rely on that evidence, particularly in the light of the impartial evidence given by the Public Trustee officers.

116    Mr Phipps has given evidence about an episode when the Deceased could not recall who he (Mr Phipps) was. Mr Phipps’ recollection as to when the episode occurred was vague. It was of no real assistance in light of the evidence which had been given by the Public Trustee officers.

117    It will be apparent that I consider that the evidence of the Public Trustee officers as to what the Deceased said and did on 4 August 1997 is the most reliable guide to his testamentary capacity. I am satisfied that the Deceased did have testamentary capacity at the time he executed the 4 August Will.

Orders

118    There will be judgment for the Defendant on the Plaintiff’s Amended Statement of Claim. I will hear the parties as to costs.

– oOo –