Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Starr v Miller [2022] NSWCA 46 Hearing dates: 22 November 2021 Date of orders: 29 March 2022 Decision date: 29 March 2022 Before: Macfarlan JA at [1]; Meagher JA at [72]; White JA at [73] Decision: Appeal dismissed with costs. Catchwords: SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased's statement that she was not agreeable to one of her daughters getting any money was a reference to a testamentary gift — whether any "suspicious circumstances" Legislation Cited: Succession Act 2006 (NSW) Cases Cited: ASIC v Hellicar (2013) 247 CLR 345; [2012] HCA 17 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Boughton v Knight (1873) LR 3 P&D 64 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 Frizzo v Frizzo [2011] QCA 308 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Nicholson v Knaggs [2009] VSC 64 Payne v Parker [1976] 1 NSWLR 191 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Category: Principal judgment Parties: Susan Maree Starr (Appellant) Margo Anne Miller (First Respondent) David Patrick Brough (Second Respondent) Bradford Frederick McInnes Stuart (Third Respondent) Representation: Counsel: R D Wilson SC (Appellant) C Harris SC (Respondents) Solicitors: Young & Muggleton (Appellant) Campbell Paton & Taylor (Respondents) File Number(s): 2021/159930 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2021] NSWSC 426 Date of Decision: 6 May 2021 Before: Hallen J File Number(s): 2019/162571; 2020/34748 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 26 May 2018, Ms Nancy Louise Starr (the deceased) died aged 72 years, leaving four adult daughters (Belinda, Margo, Susan and Emma) surviving her. She left an estate with an agreed gross value of $8,674,379. This included substantial rural property interests. By a will dated 16 July 2012 she, in essence, left her principal rural interests and related assets to Margo, with the remainder to be divided equally between her three other daughters. In the Equity Division proceedings, from which the present appeal is brought, Susan sought revocation of a grant of probate in common form which had been made in respect of the 2012 will. She alleged that the deceased lacked testamentary capacity at the time of executing that will, and that the deceased's knowledge and approval of the terms of the will were not established. Susan sought probate of an earlier will. In separate proceedings, she also sought further provision out of the estate pursuant to the Succession Act 2006 (NSW). By a judgment of 6 May 2021 Hallen J granted probate in solemn form of the 2012 will to the executors named in it, being, Margo, Mr David Brough (the deceased's accountant) and Mr Bradford Stuart (the deceased's solicitor) ([2021] NSWSC 426). They are the respondents to this appeal. As well, his Honour awarded Susan $750,000 by way of further provision out of the estate. The principal issues that arose on the appeal were as follows: (1) Whether the instructions given by the deceased as to testamentary intentions were clear and unequivocal and whether she maintained them until the execution of the will; (2) Whether the deceased's statement that she was not agreeable to one of her daughters getting any money was a reference to settlement of an earlier dispute, not to a testamentary gift; (3) Whether the deceased knew and approved the terms of the will that she signed; (4) Whether the deceased had testamentary capacity at the time she gave instructions for and executed the will. The Court unanimously dismissed the appeal: In relation to Issue 1 (instructions as to testamentary intentions) The primary judge was correct in finding that, from February to July 2012, the deceased clearly intended that Margot receive the farm and her other three daughters receive the rest of her assets: [34]. His Honour was entitled, as he did, to place greater weight on the contemporaneous documents and the logical inferences to be drawn from them than Mr Stuart's limited recollection in cross-examination: [35]–[36]. In relation to Issue 2 (whether there was a reference to a testamentary gift) The primary judge was correct in finding that the deceased's statement at the 16 July 2016 meeting that she was not "agreeable about getting Emma any money" was a reference to settlement of an earlier dispute, not to a testamentary gift: [39]–[43]. His Honour was entitled to place greater weight on the undisputed contemporaneous evidence of Mr Stuart's careful approach to the deceased's execution of the will than on certain of Mr Stuart's answers in cross-examination which were not rational in light of the former: [42]. In relation to Issue 3 (knowledge and approval of terms of the will) The primary judge was correct in inferring the deceased's knowledge and approval of the will and in finding that there were no "suspicious circumstances" which warranted a higher bar for proof of knowledge and approval: [51]–[53]. This conclusion was supported by his Honour's findings that the deceased exercised her own judgment in deciding how to dispose of her assets, that the whole of the will was read out to the deceased before she indicated her approval of it, and that Margo was not present at the meeting when the will was read out and signed by the deceased: [46], [48]–[53]. In relation to Issue 4 (testamentary capacity) The primary judge was correct in inferring that the deceased had testamentary capacity to make the 2012 will: [55]–[70]. In reaching this conclusion, there was no error in his Honour placing less weight on the retrospective opinion of Dr Cetiner, a consultant psycho-geriatrician who found that the deceased's mental condition varied between mild to moderate Alzheimer's disease, than on the contemporaneous documentary evidence of the instructions that the deceased gave to her solicitor, Mr Stuart, which suggested that she had full testamentary capacity at the time she executed the will: [61]–[62]. Judgment 1. MACFARLAN JA: On 26 May 2018, Ms Nancy Louise Starr ("the deceased") died aged 72 years, leaving four adult daughters (Belinda, Margo, Susan and Emma) surviving her. She left an estate with an agreed gross value of $8,674,379. This included substantial rural property interests. By a will dated 16 July 2012 she, in essence, left her principal rural interests and related assets to Margo, with the remainder to be divided equally between her three other daughters. 2. In the Equity Division proceedings, from which the present appeal is brought, Susan sought revocation of a grant of probate in common form which had been made in respect of the 2012 will. She alleged that the deceased lacked testamentary capacity at the time of executing that will, and that the deceased's knowledge and approval of the terms of the will were not established. Susan sought probate of an earlier will, dated 29 May 2006. Its validity was not disputed. In separate proceedings, she also sought further provision out of the estate pursuant to the Succession Act 2006 (NSW). 3. By a judgment of 6 May 2021 Hallen J granted probate in solemn form of the 2012 will to the executors named in it, being, Margo, Mr David Brough (the deceased's accountant) and Mr Bradford Stuart (the deceased's solicitor) ([2021] NSWSC 426). They are the respondents to this appeal. As well, his Honour awarded Susan $750,000 by way of further provision out of the estate. As Margo is the respondent who is personally interested in the outcome of the appeal, I refer below to her case on appeal rather than that of all three respondents. 4. On appeal, Susan contended that the primary judge erred in relation to two specific factual findings (Grounds 1 and 2) and in finding that the deceased knew and approved of the terms of the 2012 will and had testamentary capacity at the time that she executed it (Grounds 3 and 4). The award of further provision to Susan is not challenged. 5. For the reasons given below, Susan's appeal should be dismissed with costs. THE FACTUAL CIRCUMSTANCES 1. The deceased and her husband brought up their four daughters on a rural property called Arakoon situated near Molong, New South Wales. It was operated in conjunction with a nearby property named Hylands as a sheep and cattle grazing farm business. The daughters moved away from these properties, which were together referred to as "the farm", when they reached adulthood. 2. In 2002 the deceased and her husband gave a 10 acre block excised from Hylands to Emma who, with her husband, Craig, built a home on it. A bore was sunk on that part of Hylands retained by the deceased and her husband, and a pump and tank were installed near the bore to provide water for Emma and Craig's washing machine, toilets and garden, and for the sheep and cattle troughs on Hylands. The cost of the electricity used by the pump was included in Emma and Craig's power bills. As indicated below, there was a dispute (the "Bore Dispute") between the parties as to who should bear the cost of that electricity. 3. The deceased's husband died in 2005, leaving the whole of his estate to the deceased. Margo then moved back to the farm to assist her mother to operate it, making a significant salary sacrifice by giving up a job in Sydney. 4. Towards the end of 2011 both Susan and Margo became concerned about the deceased's mental condition, as a result of which the deceased attended her general practitioner, Dr Guerin. For health reasons, Dr Guerin was unable to give evidence in the Equity Division proceedings. Following a number of consultations, Dr Guerin referred the deceased to Dr Cetiner, a consultant psycho-geriatrician, who came to treat the deceased for Alzheimer's disease from 29 December 2011 to 8 December 2016. The Bore Dispute between the deceased and Emma 1. In late March 2012, the deceased and Margo met with the deceased's solicitor, Mr Stuart, to discuss the Bore Dispute between the deceased on the one hand and Emma and Craig on the other. On 2 April 2012, Mr Stuart sent the deceased a draft letter that he proposed be sent to Emma and Craig. The letter was six paragraphs in length and expressed in firm terms. The deceased subsequently rang Mr Stuart and instructed him to send the letter, which he did on 10 April 2012. As the primary judge held: "This evidence, which was not the subject of any challenge, demonstrates that the deceased appears to have read, and understood, the contents of the letter and that she had also understood that before the letter would be sent, she was required to provide instructions to Mr Stuart to send it." 1. The deceased met with Mr Stuart again on 19 April 2012. She instructed him to reject a proposal made by Emma and Craig in a lengthy letter dated 16 April 2012. 2. By letter of 30 April 2012, Mr Stuart reported to the deceased on a telephone call he had had with Craig. When he met with the deceased again on 7 May 2012, she instructed him that she would not pay any money to Emma and Craig in connection with the Bore Dispute. 3. The primary judge accepted Mr Stuart's evidence that the deceased was "simply uncompromising" in relation to the Bore Dispute and that she rejected his advice to make some financial recompense to Emma and Craig. His Honour continued: "Importantly, it was not suggested that the deceased had not understood the matters in dispute, or that she had not understood the advice given to her by Mr Stuart. It seems that Mr Stuart was content to follow the specific instructions given to him by the deceased. It was not put to him that he should not have done so because the deceased did not have the capacity to provide instructions, or that the instructions that she had provided demonstrated a lack of capacity to understand the consequences of those instructions." The instructions for, and execution of, the 2012 will 1. In February 2012, the deceased telephoned her accountant, Mr Brough, to ask if he would come with her to see Mr Stuart with regard to "drafting a new Will". She told Mr Brough that she had been diagnosed with early-stage dementia. 2. On 6 February 2012, the deceased and Margo met with Mr Brough and provided him with a list of the deceased's assets which Margo had prepared. Mr Brough's notes of the meeting indicate that he was told that Margo was to have the "farm". He recalled in evidence that the deceased also told him that the assets that were not "part of the farm [were] to go to the other three; the super, the cash and my share of Koranui". Koranui was a 93 hectare rural property in which the deceased had a one-quarter interest. 3. During the meeting Mr Brough raised the possibility of a transfer of the farm to Margo during the deceased's lifetime. His detailed note suggests that he did this because a challenge to a new will made by the deceased was "not out of the question". 4. Mr Brough and the deceased then met with Mr Stuart on the same day. The deceased reiterated that she wanted Margo to receive the "farm" and that the remaining assets were to be divided between her other daughters. 5. Mr Stuart gave evidence that when Mr Brough arranged the meeting, Mr Brough expressed concern to him that the deceased was in the early stages of dementia but, as stated by the primary judge: "[194] According to Mr Stuart, from his discussions with the deceased, he was satisfied that she understood what a Will was; that she had a reasonable understanding of the assets she would be disposing of by her Will; that she knew who would have a claim on her testamentary bounty; and that she was able to weigh up the relative 'entitlements' of each such person." For his record, Mr Brough made a note as follows: "No sign of Alzheimer's apparent at meeting. Should this be noted. Not sharp on dates and amounts but this has never been [the deceased]'s role." 1. In a letter to the deceased of 21 February 2012 Mr Stuart confirmed the deceased's intentions concerning the will. He noted that an available alternative to a will was for the deceased to make an intergenerational transfer of the rural property but he noted disadvantages in taking that course. 2. On 2 April 2012 Mr Stuart sent a letter to Dr Guerin asking for his view as to whether the deceased had sufficient mental capacity to: "…understand the effect of: 1. entering into a new Will; and 2. transferring her interest in the property to her daughter [Margo]". 1. Dr Guerin's response by letter of 7 May 2012 was that "[it] is my understanding that, at this time, [the deceased] understands the implications of her will". This letter was admitted into evidence by the primary judge "not as proof of the truth [of what was asserted in it], but as relevant evidence of an experienced solicitor making inquiries of a medical practitioner". 2. On 8 May 2012 Mr Stuart wrote to the deceased enclosing a copy of the letter from Dr Guerin and stating that he was ready to see the deceased, so that "the Land can be transferred to Margot [sic] and your new will executed". In cross-examination Mr Stuart said that the deceased subsequently told him that she did not want to make an inter vivos transfer to Margo but he could not recall when that instruction was given. Mr Stuart did however recall a telephone conversation in which the deceased said: "I want you, David and Margo to be executors. I want to leave the properties to Margo. Margo is to receive all shares in the Arakoon and the loan account. Everything else is to go Belinda, Susan and Emma." "[T]he Arakoon [shares] and the loan account" were associated with and therefore properly treated as part of the assets constituting the "farm". 1. Mr Stuart gave evidence that thereafter he drafted the form of will which was subsequently executed on 16 July 2012, based on the deceased's instructions given at the meeting of 6 February 2012. He said that he had had other conversations with the deceased regarding the will but he could not recall the detail of them. The execution of the will 1. Mr Stuart recorded his conversation with the deceased when they met on 16 July 2012 for her to sign the will. A transcript was subsequently prepared but the tape was not retained. 2. The transcript records a discussion about the deceased's family and property and the deceased's confirmation that she wished to leave the farm to Margo . Mr Stuart then provided the deceased with a copy of the draft will and asked her to read it to herself at the same time that he read it aloud. After he read the draft, the following discussion occurred: "[Mr Stuart]: Now Nancy you read through that as I read didn't you? [The deceased]: Yes. [Mr Stuart]: Do you have any questions? [The deceased]: No, I don't think I've got any questions [Mr Stuart]. I think it's alright but anyhow I'm not agreeable about getting Emma any money. [Mr Stuart]: Why is that? [The deceased]: Because she's had nothing to do with us for ages and she cut off our water but umm awful thing is that she had to go and buy the water out of Molong so you know she cut her own throat. [Mr Stuart]: Now Nancy when you came in was a discussion held about you transferring 'Arakoon' and 'Hylands' to Margo at this stage? [The deceased]: You can give it to her when I'm dead. Is that alright? [Mr Stuart]: That's fine. Yeah. So Nancy you understand the terms of the Will. [The deceased]: Mmmhhhmm. I do yes. I do understand it yes. [Mr Stuart]: Are you happy to sign it now then? [The deceased]: Yes. [Mr Stuart]: I will go and get some witnesses." (Emphasis added.) The will was then signed. 1. On 18 July 2012, Mr Stuart sent Dr Guerin a letter, together with a copy of the will and the transcript of the 16 July 2012 meeting. The letter included the following: "The writer was of the opinion that [the deceased] had full testamentary capacity at the time and that she understood the nature of the Will and its effect. It would be greatly appreciated if you would let us have a report in which you could state: 1. The length of time that [the deceased] has been a patient of yours; 2. How often and how recently you have seen [the deceased]; 3. A brief observation of [the deceased]'s state of health, her present condition and medication and its effect; and 4. Your conclusion that whether or not [the deceased] has had the necessary capacity to make the Will." 1. Dr Guerin replied by a letter of 19 July 2012 which included the statement that "[p]hysically [the deceased] appears consistent with her age, but it is apparent that her cognitive function has decreased recently". The letter also expressed an opinion as to the deceased's understanding but that opinion was not admitted into evidence because the basis for it was unstated. THE PRIMARY JUDGMENT 1. The primary judge's findings so far as they relate to the issues on the appeal were as follows. The deceased's 16 July 2012 comment 1. As recorded above at [25], the transcript of the meeting of 16 July 2012 indicates that, after the draft will was read and the deceased said it was "alright", the deceased said that "…but anyhow I'm not agreeable about getting Emma any money". The primary judge rejected the argument put to him on behalf of Emma that this comment was inconsistent with the terms of the will: "[239] Senior counsel for Margo submitted that the reference on 16 July 2012 to Emma not getting any money was a reference to the request from Emma for the deceased to pay for electricity and maintenance for the bore pump, not a reference to a testamentary gift. I accept this submission and do not read the transcript of the discussion, on this aspect, in the same way as suggested by senior counsel for Susan. As has been referred to above, not long before the deceased signed the 2012 Will, she had been in dispute with Emma and her husband, Craig, about the water pump. She had rejected all offers that had been made by them to resolve the dispute by the payment of money to them. In this regard, the deceased had been adamant. [240] In making the statement that she did about 'Emma getting any money', I am comfortably satisfied that the deceased was referring back to her dispute with Emma and Craig, and that she was not giving instructions for a Will that was inconsistent with what she had previously told Mr Brough and Mr Stuart. The deceased's statements had been consistent that Emma would be included, with Belinda and Susan, in receiving an equal share of the deceased's residuary estate. [241] It is also consistent with Margo's evidence, which I accept, that the deceased had told her when she saw a copy of the letter of 16 April 2012, received from Emma and Craig, that she wanted to take Emma out of her Will but that she had been advised by Mr Stuart that if she omitted Emma completely, that Emma might have grounds to contest the Will and so had decided to 'leave it as it is', which was a reference to the instructions that Emma should get one third of residue." The deceased's testamentary capacity, and knowledge and approval of the terms of the will 1. Having examined a number of relevant authorities, the primary judge said the following as to the approach he was required to adopt: "[457] Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight (1873) LR 3 P&D 64, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey (1924) 34 CLR 558, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo [2011] QCA 308, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs [2009] VSC 64, at [41] (Vickery J). … [460] As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, at [65] (Hodgson JA; Young JA and Bergin CJ in Eq agreeing): 'The criteria in Banks v Goodfellow [(1870) LR 5 QB 549] are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.' … [462] Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case. … [474] In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197, at [165] (Leeming JA). 1. The primary judge then proceeded as follows to find that the deceased had testamentary capacity and knew and approved of the contents of the will that she signed on 16 July 2012: "[492] The instructions that the deceased gave in February 2012 as to her testamentary intentions were clear and unequivocal and she maintained those testamentary intentions when she gave instructions to [Mr Stuart] to prepare the Will, and confirmed them again when she conferred with Mr Stuart at the time she executed the Will a few months later. [493] The transcript of some of what the deceased said to Mr Stuart about the Will was clear. This is not a case where her instructions to her solicitor changed in the months prior to, or at, the time she executed the 2012 Will. I am satisfied that she did know and approve of the terms of the Will that she signed. [494] In my view, the detailed, contemporaneous notes of Mr Brough and the correspondence written by Mr Stuart, are consistent and they more accurately depict the view taken by each of them going to the deceased's capacity than any estimate of her cognitive functioning by Dr Cetiner, who saw her on only two occasions and who was not concerned about her testamentary capacity. This is not a case of 'extreme old age', the deceased being 66 years of age when she executed the 2012 Will, living at home, and looking after herself, and, for the most part, being independent with activities of daily living, although with help from, particularly, Margo. … [502] In this case, it is clear from the instructions that the deceased considered the claims on her bounty of each of her children. As she stated it, she considered that it was Margo to whom she owed the greatest obligation. The solicitor's contemporaneous evidence on this topic was confirmed by at least one other independent witness. Whilst it may be accepted that there was a change in the deceased's Will [from an earlier will that she had executed in 2006], this was not a case in which it was an unexplained change. [503] The 2012 Will is also consistent with statements made by the deceased to other persons, such as Mr Brough, to Mr Stuart and to the registered nurse, Ms Christopherson. Her statements to each reveal the deceased's state of mind which was consistent with the intentions reflected in the 2012 Will. … [507] There is no evidentiary support that Margo participated, in any meaningful way, in its preparation or execution. Her conduct, in saying to the deceased that she would be prepared to give up 'Hylands' in order to 'keep the peace', a matter rejected by the deceased, confirms that she was not endeavouring to protect her own position by involving herself in its preparation." DETERMINATION OF THE APPEAL GROUND 1: CONTINUITY OF INSTRUCTIONS 1. By this ground of appeal, Susan asserts that the primary judge erred in finding: "(a) at J [492] that the instructions the Deceased gave in February 2012 as to her testamentary intentions were clear and unequivocal and she maintained them when she gave instructions to Mr Stuart to prepare the Will and confirmed them again when she conferred with Mr Stuart at the time she executed the Will months later (in July 2012); (b) at J [493] that this is not a case where the Deceased's instructions to her solicitor changed in the months prior to or at the time she executed the 2012 Will." 1. The first error alleged by Susan in these findings is that they overlook the fact that, for part of the period from February to July 2012, the deceased considered that the option, raised by her solicitor, that Margo should be given the farm by inter vivos transfer rather than by will, should be adopted. It is clear, however, that by the end of that period the deceased had given instructions, as recommended by Mr Stuart, that that course should not be adopted but rather that the deceased's original intent expressed in February 2012 that the farm be given by will should be adhered to. 2. In these circumstances, Susan's criticisms of the findings should be regarded as insubstantial. For complete accuracy, the primary judge could perhaps have qualified his findings by referring to the option that was apparently adopted for a limited period, and to which the primary judge had made detailed reference, that the gift to Margo be inter vivos rather than testamentary. The substance of what his Honour said was however relevantly correct in that from February to July 2012 the deceased intended that Margo receive the farm and her other three daughters receive the rest of her assets. That, for a time, the mechanism by which the deceased intended that this be achieved varied did not support Susan's case on testamentary capacity or on the deceased's lack of knowledge and approval of the contents of the will. Rather, what occurred supported Margo's case in that the communications between the deceased and Mr Stuart concerning the possibility of an inter vivos transfer suggested that the deceased was capable of turning her mind in a rational fashion to the disposition of her assets and did so in a way that came to be reflected in the terms of the 16 July 2012 will. 3. The second error alleged by Susan by this ground of appeal is that the primary judge should not have found that, as Mr Stuart deposed in his affidavit evidence, Mr Stuart received confirmation from the deceased about her wishes prior to drafting the will. Susan submitted that, instead, the primary judge should have treated as determinative Mr Stuart's evidence in cross-examination that he had no recollection of a conversation to this effect and should have found that any such conversation would have been inconsistent with Mr Stuart's evidence in cross-examination that it was on 16 July 2012 that he first received confirmation about the deceased's wish that she wanted to leave the farm to Margo by testamentary devise. 4. As Mr Stuart proceeded to draft the will prior to the 16 July 2012, it is however highly likely that he received some such instructions as he described in his affidavit of 31 January 2020. His Honour was entitled to treat Mr Stuart's limited recollection in cross-examination as not of great significance, particularly because, by the time Mr Stuart gave evidence, nearly nine years had passed since the communications in question. The primary judge was instead entitled, as he did, to place much greater weight on the contemporaneous documents and the logical inferences to be drawn from them. The primary judge had the advantage of seeing and hearing Mr Stuart, who was by then retired from practice, give his evidence. It was well open to his Honour to discount Mr Stuart's evidence in cross-examination on this topic due to the passage of time, as his Honour explicitly did in relation to Mr Stuart's evidence concerning the deceased's testamentary capacity: "[190] Mr Stuart was cross-examined extensively about his knowledge of the deceased's capacity at the time of the conference. I found some of his evidence to be inconsistent, but this, it seemed to me, was caused by the passage of time that had passed since the events that occurred. The contemporaneous records that he produced supported the broad thrust of his evidence." See also [72], [262]–[263] and [266]. 1. For these reasons, Susan has not established the second error that she asserts occurred. Ground 1 should accordingly be rejected. 2. One other matter that should be mentioned in this context is that the gift contained in the will of personal items as such to Margo is not referred to in the notes of the February 2012 meetings of the deceased with Mr Brough and Mr Stuart but for the reason given below in [53] there is a sufficient basis for inferring the deceased's knowledge and approval of it. GROUND 2: THE DECEASED'S STATEMENT ABOUT EMMA NOT "GETTING ANY MONEY" 1. By this ground Susan contended that the primary judge erred in concluding that the deceased's statement at the 16 July 2012 meeting that she was not "agreeable about getting Emma any money" was a reference to the Bore Dispute, not to a testamentary gift. The judge's reasoning is quoted at [29] above. 2. In support of the ground, Susan relied in particular upon evidence as follows given by Mr Stuart in cross-examination, after he was directed to the relevant statement of the deceased recorded in the 16 July 2012 transcript: "Q. And did you then understand at that stage that [the deceased] did not want Emma to receive any money under the will? A. Yes. Q. It was your understanding at the time that the will, under the will, Emma was to receive potentially money? A. Yes. Q. And you knew that the will you were asking [the deceased] to sign was inconsistent to what she said about Emma in that question and answer, correct? A. Yes, yes. Q. To that extent, she did not approve of the contents of the will, did she? A. No. Q. You say to his Honour in your affidavit you are an experienced legal practitioner when it comes to wills and probate. Don't you? A. Yes. Q. You knew at the time that statement was said that [the deceased] was not approving the contents of that will. A. Yes. Q. So what steps did you take to ensure that she understood? A. None. Q. Why was that, Mr Stuart? A. I don't know. Q. Did you have no confidence that she'd be able to understand any explanation you gave her? A. Yes." 1. The primary judge was conscious of this evidence when reaching his conclusions as to what the deceased was referring to at the meeting of 16 July 2012, as he referred to it (at J[238]) immediately before expressing his views about the deceased's comment concerning Emma (see J[239]–[241]) quoted in [29] above. 2. Mr Stuart's evidence in cross-examination quoted in [40] above was clearly of little if any weight, as was implicitly the view of the primary judge. The primary judge said that he found some of Mr Stuart's evidence, apparently including the passage presently under consideration, to be inconsistent but that inconsistency was "caused by the passage of time that had passed since the events that occurred". Mr Stuart's answers in cross-examination in the passage relied upon were not rational in light of the undisputed contemporaneous evidence of the careful and responsible approach taken by Mr Stuart to the deceased's execution of the will and his obvious satisfaction in 2012 that the deceased had approved the contents of the will that she signed. This was most notably demonstrated by Mr Stuart's statement in his letter of 18 July 2012 to Dr Guerin that he was "of the opinion that [the deceased] had full testamentary capacity at the time [of executing the will] and that she understood the nature of the Will and its effects". 3. Ground 2 should in these circumstances be rejected. GROUND 3: THE DECEASED'S KNOWLEDGE AND APPROVAL 1. Susan's contention that it was not proved that the deceased knew and approved of the contents of the 2012 will was in large measure founded upon the matter raised under Ground 2, which I have rejected. Subject to addressing Susan's submissions concerning three specific aspects of the will (a charging clause in cl 10, a gift of personal use items and jewellery in cl 7 and the gift of residue in favour of Emma), this ground must therefore also be rejected. 2. The primary judge correctly recognised that the onus concerning knowledge and approval is on those propounding the will. Susan contended on appeal that there was a high bar for proof of knowledge and approval in the present case by reason of the existence here of "suspicious circumstances" (see for example Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [144]–[145], [147]). 3. Susan relied in this context on three matters. The first was that Margo attended the deceased's meeting with Mr Brough on 6 February 2012 and gave him notes as to the deceased's assets which Margo had prepared. This is however of limited significance as it was the deceased, not Margo, who provided to Mr Brough, at the meeting, details of how she wanted her estate to be distributed. Indeed, Margo insisted at the meeting that she would be content to receive the Arakoon property only, with Hylands to go to Emma, but the deceased instead insisted on both properties being given to Margo. This supported the view that the deceased was exercising her own judgment in deciding how to dispose of her assets. 4. Secondly, Susan referred to evidence that Margo was present at the 16 July 2012 meeting but acknowledged that Margo denied being there. As the primary judge made no finding that Margo was there, and as no such finding was sought on appeal, the submission can be disregarded. 5. Pointing against the circumstances being "suspicious" was also the evidence that Margo was not present at the deceased's 6 February 2012 meeting with Mr Stuart when the deceased gave instructions for her will, that Margo was not a party to the telephone conversation with Mr Stuart when the deceased later confirmed her instructions and that (it must be accepted in the absence of a finding to the contrary) Margo was not present at the 16 July 2012 meeting when the will was read out and signed. 6. In these circumstances, and in light of the rejection of Ground 2, considerable significance can and should be given, on the issue of knowledge and approval of the will, to the fact that the draft will was read out at the 16 July 2012 meeting before the deceased executed it, and that she expressed her approval of it. In some circumstances, limited weight should be given to the reading out of a will before execution (see Mekhail v Hana at [137]–[138]) but, subject to the conclusion on Ground 4 concerning testamentary capacity, this is not one of them. 7. As noted above, the charging clause in cl 10 of the will is the first of the three specific aspects of it addressed under Ground 3. Clause 10 is in the following terms: "10. ANY executor who may be a solicitor accountant or other person engaged in any profession or business may act in a professional or business capacity in relation to the administration of my estate and shall be entitled to charge and retain all professional and other charges for any business or act done by him or his partner or partners or by his or their clerks or agents in connection with the trusts of this Will whether in the ordinary course of his business or not and although not of a nature required in the employment of the solicitor accountant or other professional person PROVIDED HOWEVER that nothing in this Will shall prevent my executors from applying to the Court for commission." 1. In light of the conclusions reached in [46] to [49] above and as the whole of the will, including this provision, was read to the deceased and she indicated her approval of it, there is no reason to conclude that the primary judge was wrong to infer the deceased's knowledge and approval of cl 10 which was to the same effect as a provision of the deceased's 2006 will. 2. The same conclusion is applicable to cl 7 of the will which provides: "7. I GIVE DEVISE AND BEQUEATH to my daughter MARGO ANNE STARR all my items of personal use or ornament including furniture and jewellery but I request that she does distribute to her sisters such items as she may desire." 1. Again, the reading of the will was, in the circumstances of the present case, a sufficient basis for inferring knowledge of this specific part of the will, as well as its entirety. 2. The third specific aspect of the will to which Susan referred was the gift of one third of residue in favour of Emma. The essence of the deceased's instructions to Mr Stuart, as reflected in the will, was that the farm was to be given to Margo, with the residue to the three other daughters. Given that I have rejected Ground 2 and that the primary judge's explanation of the deceased's observation about Emma at the 16 July 2012 meeting is therefore to be accepted, there is no reason to doubt the deceased's knowledge and approval of the gift of one-third of the residue to Emma. The deceased's comment about Emma was no doubt provoked by the reference to Emma in the will, with the deceased wanting to leave Mr Stuart in no doubt that the firm position she had taken in relation to the Bore Dispute was maintained. GROUND 4: TESTAMENTARY CAPACITY 1. Susan contended on appeal that the primary judge made a number of errors in concluding that the deceased had testamentary capacity to make the 2012 will. 2. First, she submitted that the primary judge erred in describing the deceased's mental condition in the period from late December 2011 to July 2012 as "mild dementia stage, although there were occasions when the symptoms appeared to be referable to the moderate stage". Contrary to Susan's submission, this finding did not however differ in a material way from the evidence of Dr Cetiner, a consultant psycho-geriatrician, whose evidence was adduced by Susan. He said that in December 2011 he diagnosed the deceased with "Alzheimer's disease in the mild to moderate stage". The materiality of such difference as there was between the two descriptions was not established. 3. It is clear from Dr Cetiner's affidavit that he placed some weight on the performance of the deceased in Mini Mental State Examinations ("MMSE"), which are used to assess memory recall and screen for dementia. Dr Cetiner referred to a score of 14/30 as reflecting a moderate stage of dementia whereas a score between 20 and 23/30 could indicate the presence of "early stage or mild dementia". On at least two occasions (1 December 2011 and 11 December 2012) the deceased scored 20/30 on MMSEs and on other occasions received varying scores below 20. This indicates, as did Dr Cetiner's diagnosis of "mild to moderate" Alzheimer's disease, that unsurprisingly the deceased's condition varied from time to time and in different circumstances, as was also reflected by the primary judge's findings. 4. Susan also complained that the primary judge erred in finding that "there was no evidence of any behavioural, or psychological symptoms of dementia" but that complaint did not fully and fairly reflect the judge's finding which was: "There was clearly evidence of the deceased suffering some impairment of memory and of cognition, but there was no evidence of any behavioural, or psychological, symptoms of dementia." 1. Dr Cetiner did however give evidence that when he first saw the deceased in December 2011, she was "tearful, suffering labile mood, which is a common complication of Alzheimer's disease" and that she had a language problem ("expressive dysphasia") which is indicative of disordered thought and a possible lack of comprehension. 2. Nevertheless, this evidence did not go so far as to contradict the other evidence before the primary judge justifying his Honour's conclusion that the deceased was aware of and approved the contents of her 2012 will. Dr Cetiner, for example, only referred to a "possible" lack of comprehension. The evidence of the oral and written communications concerning the will and the Bore Dispute to which the deceased was a party constituted much more powerful evidence on that issue. 3. Secondly, Susan submitted that the primary judge erred in preferring the contemporaneous documentary material to the evidence of Dr Cetiner. Dr Cetiner had however only seen the deceased on two occasions and had not at those times, in any event, been concerned with any issue as to her testamentary capacity (see J[494] quoted in [31] above). Dr Cetiner was thus only able to give a retrospective opinion and he was in any event not aware of all the circumstances relevant to assessing the deceased's level of cognition. Importantly, he was not aware of the instructions that the deceased gave to Mr Stuart and Mr Stuart's communications with the deceased concerning the Bore Dispute with Emma and her husband. The primary judge rightly placed significant weight on these matters (see [10] and [13] above). 4. Against Dr Cetiner's evidence, the primary judge was also entitled to weigh the other contemporaneous material including, in particular, Mr Stuart's statement in his letter of 18 July 2012 to Dr Guerin. Mr Stuart stated that he considered that the deceased "had full testamentary capacity at the time [that she executed the will] and that she understood the nature of the Will and its effects". That Mr Stuart wished to seek confirmation of his opinion from Dr Guerin did not negate its value. Mr Stuart simply took the prudent step that a careful solicitor would where the solicitor was aware that his or her client had been diagnosed with dementia. As I indicated in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (with the concurrence of Bell ACJ at [1]), the evidence of an experienced solicitor may be entitled to substantial weight in such a context as the present (see also [65]–[67] as to the limitations that may need to be given to the weight accorded to expert evidence given on a hypothetical basis). 5. As well, it should be borne in mind that, leaving aside the specific aspects of the will to which Susan directed attention on appeal, the essential matters of which it was necessary for the deceased to know and approve were simple: that the farm was to go to Margo and the residue of the estate was to be divided equally between the deceased's other three daughters. The level of capacity necessary in order to understand these matters was not high. Moreover, Mr Brough and Mr Stuart, both disinterested witnesses who were professionals, gave evidence that in the relevant period the deceased expressed her wishes in these terms. 6. Thirdly, Susan submits that the primary judge erred in concluding that the 2012 will was not irrational on its face. The primary judge took this conclusion into account when considering the issue of testamentary capacity but made it clear that he did not reason that the deceased had capacity merely because the 2012 will was rational. 7. Susan's submission on the topic of irrationality should be rejected because it did no more than identify ways in which the deceased might have divided her estate in an arguably more reasonable fashion than the division for which the 2012 will provided. Any unreasonableness of a will, as distinct from irrationality, is of little, if any, relevance on an issue as to testamentary capacity. In any event, the basic scheme of the 2012 will bore the hallmarks of reasonableness: the rural residence/business and personal use items to be given to the adult child who lived with and assisted the deceased, with the balance of the estate to be divided between the three other children. 8. Fourthly, Susan complained that the primary judge erred in finding that the deceased was "for the most part… independent with activities of daily living, although with help from, particularly, Margo". Susan submitted that Dr Cetiner's contemporaneous reporting indicated that the deceased "remained living at home with 'close supervision' not just 'help' from her daughter". As Margo submitted, the primary judge's use of the word "help" was, however, consistent with the following conclusions expressed by the nurse, who assisted the deceased, and, notwithstanding his use of the term "close supervision", also by Dr Cetiner: "(i) on 1 December 2011 Mary Rose Taffa - a nurse who went to visit and assess the deceased - noted 'independent with all personal ADLs' and 'able to shop appropriately with Margo's help'; (ii) on 29 December 2011 Dr Cetiner noted in his report to the deceased's GP that 'she remains mostly independent with her living skills, but she is closely supervised by one of her daughters'; (iii) on 19 April 2012 Dr Cetiner noted in a report to the deceased's GP that 'Importantly, Mrs Starr remains living at home with close supervision from her daughter. She is independent with her living skills and there are no services'; and (iv) on 11 October 2012 Dr Cetiner reported again to the deceased's GP that '... she remains independent with her living skills, but receives some assistance from her daughter Margo for more complex activities such as shopping'." 1. Finally, Susan submitted that the Court should "more comfortably conclude that the deceased lacked capacity, as a result of the respondent's unexplained failure to call evidence from Margaret Starr, the deceased's sister-in-law, who was a person who would presumably give truthful evidence of the degree of the deceased's incapacity". Susan relied upon the principles stated in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at [308], [312] and [320]–[321]. 2. This submission should be rejected. Margo's case was not dependent on "uncertain inferences", nor was there a question about whether "limited material [was] an appropriate basis on which to reach a reasonable decision" (see ASIC v Hellicar (2013) 247 CLR 345; [2012] HCA 17 at [169]). Rather, as Margo submitted on appeal, the respondents: "… called evidence [from] the parties who might be expected to be called as witnesses in a case of this nature: they called the evidence of the deceased's accountant and solicitor, who were involved in providing the instructions for, and the execution of, the Will, and the witnesses to the execution of the Will. They were unable to call the deceased's GP, because he was elderly; had dementia; and had no memory of ever having treated the deceased but they tendered into evidence his notes and obtained evidence from his nurse, Ms Christopherson…; and of course Margo gave evidence. In these circumstances it would not be expected that the respondents should also call the deceased's sister-in-law, Margaret, and their failure to call her is of no significance." 1. As the plurality said in ASIC v Hellicar at [165], "[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led". That Margo might have been able to call further evidence relevant to her case did not establish that the evidence she did call was deficient or insufficient for appropriate inferences and conclusions to be drawn in her favour. 2. In any event, the evidence did not establish that Margaret Starr, the deceased's sister-in-law, was in Margo's "camp" (see Payne v Parker [1976] 1 NSWLR 191 at 201). Contrary to Susan's submission, that was not established by the fact that Margaret Starr "financed by way of loan, part of the settlement with the plaintiffs in the related family provision matters". CONCLUSION AND ORDER 1. As Susan has not succeeded on any of her grounds of appeal, her appeal should be dismissed with costs. 2. MEAGHER JA: I agree with Macfarlan JA. 3. WHITE JA: I agree with Macfarlan JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022