New South Wales Supreme Court CITATION : Fuggle v Sochacki [1999] NSWSC 1214 CURRENT JURISDICTION : Probate FILE NUMBER(S) : 117254/97 HEARING DATE(S) : 3, 4 & 5 November, 2 December 1999 JUDGMENT DATE : 3 December 1999 PARTIES : James Robert Fuggle (P) Andrew Nicholas Sochacki, Executor and Trustee of the Estate of the Late Dorothy Edith Boehm (D) JUDGMENT OF : Austin J COUNSEL : B E Kinsella (P) J Blackman (D) SOLICITORS : James Fuggle Solicitors (P) Elliot & Sochacki (D) CATCHWORDS : WILLS - testamentary capacity - testatrix had Altzheimer's disease - conflicting opinions of geriatrician and psychiatrist - significance of consent order under Protected Estates Act ACTS CITED : Protected Estates Act 1983 (NSW) Banks v Goodfellow (1870) 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Parker v Fellgate (1883) 8 PD 171 CASES CITED : Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Re Estate of Griffith, Easter v Griffith (Court of Appeal New South Wales, unreported, 7 June 1995) Re Hodges (1988) 14 NSWLR 708 Timbury v Coffee (1942) 66 CLR 277 Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267 DECISION : Proceedings to set aside probate of last will dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J FRIDAY 3 DECEMBER 1999 117254/97 - ESTATE OF DOROTHY EDITH BOEHM; JAMES ROBERT FUGGLE V ANDREW NICHOLAS SOCHACKI JUDGMENT (Ex tempore; revised 8 December 1999) HIS HONOUR: Introduction 1 Dorothy Boehm died on 27 June 1997. Probate in common form of her will dated 2 July 1993 ('the last will') was granted on 2 September 1997 to the executor named in the will, her solicitor Andrew Sochacki. Her estate comprised her house at 40 Kolora Way, Ocean Shores, valued for probate purposes in 1997 at $152,000, furniture and personal effects valued at $3,765 and about $39,000 in current accounts. 2 She had no children and both her husband and her de facto partner had died many years before her death. By her last will she gave pecuniary legacies of $5,000 each and specified personal effects to Mark Faulkner, Honor Faulkner and Timothy Faulkner. Timothy Faulkner is the son of the half-brother of the deceased and was her closest living relative at the time of her death. Mark and Honor Faulkner are Timothy's children. All three live in England. 3 She gave her house at Ocean Shores to Monica Paron, her carer, and another pecuniary legacy to her goddaughter, Caroline Davies. She gave the residue of her estate to Mark, Honor and Timothy Faulkner and Monica Paron in equal 25 per cent shares. It is evident that the value of the residue is low in view of the specific gift of the house and the pecuniary legacies. The proceedings 4 By a Statement of Claim filed on 7 November 1997 and subsequently amended, the plaintiff brought proceedings as attorney of Timothy Faulkner seeking revocation of the grant of probate and (inter alia) an order that probate of an earlier will made on 6 August 1992 ('the 1992 will') be granted to him, on the ground that the deceased was not of sound mind, memory and understanding at the time of making the last will. The defendant as executor of the last will has contested these proceedings. 5 The 1992 will was very similar to the last will, the main differences being that it contained an additional pecuniary legacy of $2,000 to Marie Hayes, a former neighbour of the deceased, and the specific gift to Mrs Paron was of the house then owned by the deceased, but sold prior to the making of her last will, namely, the house at 53 Fingal Street, Brunswick Heads. No doubt the plaintiff's expectation is that if the 1992 will is admitted to probate, the specific gift of the house will be ineffective since the named property was not owned by the deceased at the time of her death, and the house at Ocean Shores will be treated as part of the residue of the estate in which Mark, Honor and Timothy Faulkner, as well as Mrs Paron, each have a 25 per cent interest. Background facts 6 The deceased was born, Dorothy Edith Faulkner, in England in 1908. She had no brothers and sisters. Her mother died when she was three, and her father subsequently married Florence Faulkner ('Mrs Faulkner', to whom the deceased occasionally referred as `Bubbles'). The deceased married Frederick Biggerstaff, from whom she separated in 1948, though without a divorce. He died in 1950, though it appears the deceased did not become aware of this fact. In 1949 she emigrated to Australia and her father and Mrs Faulkner joined her here about eight months later. In the early 1950s the deceased met Erwin Edward Boehm and commenced a de facto relationship with him. She eventually came to be known as Mrs Boehm, though they never married. They lived in the Blue Mountains near Sydney until the late 1950s when they moved to Brunswick Heads. After the deceased's father died in 1962, her stepmother moved to Brunswick Heads and lived with the deceased, though she spent some time in England as well. Mr Boehm died in 1977, and Mrs Faulkner died on 20 January 1986. 7 From that time on the deceased was very lonely. She was in contact with her longstanding neighbours Mr and Mrs Hayes and with her third cousin, Rosalie May Faulkner-Camden ('Mrs Faulkner-Camden', whose nickname was 'Bud'). She also had regular contact with Monica Paron. Mrs Paron was employed by Home Care Service, who had assigned her in 1984 to take care of Mrs Faulkner, after the deceased had fallen and broken her hip and was unable fully to care for her stepmother. Initially Mrs Paron provided two hours of housework once a week, but that increased when Ms Faulkner became ill. Mrs Paron and the deceased became close and after Mrs Faulkner died Mrs Paron continued to provide two hours housekeeping per week and also visited the deceased as a friend, sometimes having dinner with her and occasionally sleeping over. This arrangement continued until 1992, as I shall record. Contact with relatives 8 Timothy's ex-wife Patricia Mary Faulkner, ('Patricia Faulkner') visited the deceased and her stepmother in May 1985, and the deceased wrote several friendly conversational letters to her during 1986 and 1987. Patricia Faulkner sent the deceased a Christmas card in 1993 and inquired about her during that year, but there is no other evidence of correspondence or contact between her and the deceased. Since the attempts at contact in 1993 occurred after Mrs Faulkner-Camden's long visit to the deceased (which happened in 1992), they could well have been as a result of communication between Mrs Faulkner-Camden and Patricia Faulkner. 9 Similarly, Timothy and Honor Faulkner wrote to the deceased's solicitor in February and March 1993, but there is no evidence of communication at other times after 1985 apart from the evidence of the visit to which I shall refer. Once again their communications in 1993 may have occurred after contact between them and Mrs Faulkner-Camden, though there is no direct evidence on that point. In December 1989 Timothy and Mark Faulkner travelled to Australia and visited Brunswick Heads. There is conflicting evidence as whether they made actual contact with the deceased. I shall return to that. Wills and financial management, 1985-1991 10 During the period from 1985 to 1991 the deceased made three wills, dated 4 April 1985, 16 February 1989 and 23 September 1991. In the 1985 will the residuary beneficiary was Patricia Faulkner, and Mrs Faulkner, Mark and Honor Faulkner received pecuniary legacies. In the 1989 will Patricia Faulkner and Mrs Paron received pecuniary legacies ($10,000 and $20,000 respectively), Mrs Hayes received a pecuniary legacy of $2,000 and Mark and Honor Faulkner received pecuniary legacies of $7,000 each as well as 37.5 per cent each of the residue of the estate (the remaining 25 per cent going to another beneficiary about whom there is no evidence). In the 1991 will Mrs Paron, Mrs Hayes, Mark and Honor Faulkner received pecuniary legacies in the same amounts as the earlier will, while Mark and Honor Faulkner each received 37.5 per cent of residue and the remaining 25 per cent residue went to Mrs Faulkner-Camden. 11 By the time of her stepmother's death, the deceased herself was a woman of advancing years and she sought and obtained assistance from her solicitor and her accountant with respect to her financial affairs. She granted a power of attorney to Mrs Sochacki by deed dated 24 August 1998. Mr Sochacki explains that when that arrangement was put into place he and Mr John Robinson, her accountant, attended to her accounting needs, including the filing of tax returns and the drawing of cheques for the payment of bills. Contact with Mrs Faulkner-Camden, 1991-92 12 In 1991 the deceased visited Ms Faulkner-Camden in Sydney on two occasions. Then in 1992 Mrs Faulkner-Camden came to visit the deceased in Brunswick Heads for a period of about seven to ten weeks, beginning on 16 May 1992. Mrs Faulkner-Camden says that she made the visit after Mrs Paron phoned to say the deceased's mental condition was deteriorating. But I find it unlikely that Mrs Paron would have said this in view of the latter's evidence that late in 1992, the deceased was an able and intelligent woman who understood and took part in conversations, though she had occasional losses of short term memory. 13 The deceased had a hernia operation complicated by an attack of influenza or pneumonia early in July 1992. Mrs Faulkner-Camden was still staying in the deceased's house when the operation occurred but she left shortly afterwards. She wrote to Mr Sochacki on 4 July 1992 from the house, saying that 'urgent business in Sydney' would compel her to leave shortly. Her recollection in oral evidence was she did not do so, but the letter is in evidence. 14 The deceased made a new will on 26 June 1992. The will was executed at the office of Mr Sochacki. The deceased was accompanied there by Mrs Faulkner-Camden. By this will the pecuniary legacies to Mark and Honor Faulkner were reduced to $5,000 each, the legacy to Mrs Paron was reduced to $17,000 (and specific bequests of chattels were added) and legacies were given to Timothy Faulkner ($5,000), Mrs Faulkner-Camden ($15,000), and Caroline Davies ($5,000). The pecuniary legacy for Ms Hayes was increased to $15,000 and she was given specific bequests of some chattels. The residue was divided into equal 20 per cent shares given to Mark, Honor and Timothy Faulkner, Mrs Faulkner-Camden and the New South Wales Cancer Council. 15 The circumstances in which the will of June 1992 arose are recounted in Mr Sochacki's affidavit of 29 October 1999. According to his evidence on this point, which I accept, he went with his secretary, Mrs Curtis, to the deceased's home to take instructions for that will on 21 June 1992. When he arrived Mrs Faulkner-Camden handed him a list, which is in evidence. That document, which bears the date 19 June 1992, is addressed 'Dear Andrew', and although it is not signed it appears to be in the same hand as other documents which were prepared by Mrs Faulkner-Camden. It purports to be a 'rough inventory of `some goodies'' which in Mrs Faulkner-Camden's opinion were of some value. It deals with items in the house in considerable detail. 16 There was conflicting evidence as to whether it was proper to describe this document as an instruction to Mr Sochacki. In my opinion, not much turns on this. The document is not in terms an instruction to Mr Sochacki for the purpose of preparing the will, but is rather more than merely a set of unathoritative suggestions. Given the circumstances in which it was handed over, Mrs Faulkner-Camden clearly intended that although she was not Mr Sochacki's client, Mr Sochacki would use the document for the purpose of preparing the will. 17 Mr Sochacki's evidence is that during the course of taking instructions Mrs Hayes, the next door neighbour (who is a friend of Mrs Faulkner-Camden) was present for part of the time and Mrs Faulkner-Camden was present for most of the time. At one stage Mrs Faulkner-Camden went around to the house pointing at various items of furniture and other articles, saying to whom the items were to go. 18 Mrs Faulkner-Camden's interest in the deceased's testamentary dispositions is confirmed by other evidence. In the letter to Mr Sochacki of 4 July 1992, to which I have referred, she expresses concern about safety of the contents of the house if it is unattended, and also expresses an interest in the deposition of its contents. Specifically she confesses to an interest in a grand picnic hamper. 19 Also in evidence is a document in Mrs Faulkner-Camden's hand which is unaddressed but bears on the back of the last page a date stamp for 25 May 1992, which according to evidence was affixed in Mr Sochacki's office. This document began 'I wish to be present at all times with Dorothy. I feel it only fair if you have a witness so should she request I am present at all interviews please.' The letter asked that she be made a trustee or co-executor so she could be involved in 'policing her affairs'. It asked that Mrs Paron be interviewed to express her request for inclusion in Dorothy's will. The document is not hostile to Mrs Paron but it expresses an apprehension that she may find that attending to Dorothy's needs would become too much of a burden. The letter also gives an account of Mrs Faulkner-Camden's constrained financial situation. 20 It is difficult on the evidence to draw any firm conclusion as to the purpose for which that document was prepared or as to the manner in which it came to be received in Mr Sochacki's office. However, at least one thing is clear. In my opinion the document confirms Mrs Faulkner-Camden's considerable interest in the testamentary dispositions of the deceased's assets and her desire to have a role in the process of distribution of the estate. Events after Mrs Faulkner-Camden's visit in 1992 21 When the deceased was discharged from hospital in July 1992 arrangements had been made for respite care. However, according to Ms Paron's evidence, which I accept, she formed the view that as the deceased was still taking antibiotics and seemed to be still quite sick it would be inappropriate for her to look after herself in a hostel. She said she took the deceased to see Dr Holmes, who cancelled the arrangements for respite care, and she then took the deceased to her own home. The deceased continued to live with Mrs Paron for the ensuing ten months or so, although she returned to her house at Brunswick Heads during the day on a frequent basis. Mrs Paron and members of her family assisted the deceased to move out of the Brunswick Heads house and it appears that some chattels which the deceased no longer wished to retain were sold for the benefit of the deceased. There is no suggestion that Mrs Paron acted in any way improperly in doing so. 22 After Mrs Faulkner-Camden returned to Sydney from Brunswick Heads she continued to be concerned about the disposition of the deceased's assets and the situation which obtained in Brunswick Heads. It appears she contacted Home Care Service who wrote her a letter to assure her that Mrs Paron had not acted improperly and had at no time any involvement in the making of wills. The terms of the letter give rise to the inference that Mrs Faulkner-Camden had expressed concern to Home Care Service on those matters. The letter continued that while there was no suggestion of impropriety that was room for a possible conflict of interest, and so arrangements had been made for Mrs Paron to work with Mrs Boehm privately, with the blessing of Mr Sochacki. The letter from Home Care Service is not dated, but it seems to me probable that it was written in the latter part of 1992. In any event Mrs Paron ceased to work for Home Care Service at some time in 1992 and thereafter she continued to care for the deceased on a private basis. Her evidence, which I accept, is that while they were living together in Mrs Paron's house the deceased paid for some parts of housekeeping and she paid for other matters. Subsequently, after orders were made in the Protective Division in the manner to which I shall refer, Mrs Paron was paid $75 per week by the manager of the estate, Mr Robinson, for the deceased's food, medicine and other expenses. The making of the 1992 Will and the sale of the Brunswick Heads house 23 On 31 July 1992 the deceased came to see Mr Sochacki at his office. She told him that she wished to change her will, and according to Mr Sochacki's evidence the deceased said that the previous will had been made 'under duress from my cousin Bud'. She told Mr Sochacki that she wanted Mrs Faulkner-Camden out of her will. The evidence does not make entirely clear the reasons for the antagonism which the deceased had developed towards Mrs Faulkner-Camden, but obviously a strong antagonism existed at that point. Specifically, it is not clear to me whether there were some other events not the subject of evidence, beyond Mrs Faulkner-Camden's behaviour in the manner which I have outlined, though it may be that this behaviour would itself have been sufficient to antagonise the deceased. 24 Mr Sochacki took instructions for the making of a new will and they were reflected in the 1992 will, the contents of which I have already summarised. I should reiterate, however, that the important changes were that Mrs Paron was to receive the house at Brunswick Heads and that the previous substantial bequest in favour of Mrs Faulkner-Camden were removed. 25 The deceased had contemplated for some time that she would sell her house at Brunswick Heads. It was a two-storey house and her limited mobility made it difficult for her to manage the stairs. Eventually the house was sold with settlement occurring on 16 March 1993. She purchased the house at Ocean Shores by contract dated 29 March 1993, settlement occurring on 16 April 1993. Mr Sochacki acted for her. Obviously 1993 was already, prior to the events to which I am about to refer, a year of substantial activity and presumably stress for the deceased. The Protective Division proceedings 26 Early in March 1993 Mr Sochacki became aware that Mrs Faulkner-Camden had approached the Legal Aid Commission for assistance with respect to a proposed application to the Protective Division to place the deceased's affairs under management under the Protected Estates Act 1983 (NSW). 27 On 16 June 1993 Mr Sochacki telephoned the deceased to report on a conversation which he had had with Mr Tunbridge of Legal Aid. He told her that Mr Tunbridge would be sending documents with respect to the Protective Division application. The deceased became upset and insisted on a meeting with Mr Sochacki, and a meeting was duly arranged for later that day. The summons in the Protective Division proceedings was taken out in June 1993, originally returnable on 7 July 1993. Documents, presumably including the summons, were served on Mr Sochacki on 17 June 1993. 28 It is evident that the effect of the initiation of the Protective Division proceedings on the deceased was dramatic, and the antagonism which appears to have already existed in her mind towards Mrs Faulkner-Camden was exacerbated. She filed an affidavit in the Protective Division proceedings in which she said this: 'I am perfectly capable and I stress with great emphasis and indignation that I am perfectly capable of charting the path of my future and of making decisions in respect of my future and in choosing the people whom I want to look after my affairs. I am also perfectly capable of choosing my friends and/or carers and I resent the unqualified or unwarranted, uninvited interference from my third cousin Rosalie May Faulkner-Camden. I have a very good and close friend, confidant and carer, Monica Paron, who has been looking first after my mother, and now after me for a period of some nine (9) years. She is a person I love and trust implicitly.' 29 Thus by June 1993 the disruption to the deceased's life which had begun in the previous July with her operation and illness and her move out of and subsequent sale of the Brunswick Heads property, took a significant further turn for the worse because of the Protective Division proceedings and her consequent determination to make her own decisions about the disposition of her property. 30 The Protective Division proceedings ultimately led to orders made by the Deputy Registrar in December 1993 declaring that the deceased was a person who was incapable of managing her affairs and ordering that the estate of the deceased be subject to management under the Protected Estates Act 1983 (NSW), making other consequential orders. However, those orders were not the product of a full contested hearing, since eventually the deceased decided, on advice of her counsel and Mr Sochacki, that she should not contest the matter because of the stress and cost involved. The signing of the last Will 31 On 18 June 1993 the deceased consulted Dr Norbert Weber. Doctor Weber interviewed the deceased with Mrs Paron and was subsequently asked to attend when she signed a further will. Instructions for the further will, which was her last will, were given to Mr Sochacki when he met with her on 16 June 1993. It must be remembered that this was about the time when she was first made fully aware of the Protective Division proceedings. Mr Sochacki says that at the time of giving instructions the deceased said, 'I must be very careful with my will because I am leaving my house to Monica. My cousins and various other distant relatives may cause trouble in respect of this will.' According to his evidence the deceased told him that 'all they could speak of is what it is I will leave them in my will.' 32 Mr Sochacki prepared the last will and arranged for the deceased to execute it on 2 July 1993. He also took precautions to prepare for that occasion having regard to what had been said to him by the deceased. Present at the time of the execution of the will were Dr Weber, Mr Robinson, Mrs Curtis (Mr Sochacki's secretary), and Mr Sochacki. The will was witnessed by Mrs Curtis and Dr Weber. Mr Sochacki, Dr Weber, Mr Robinson and Mrs Curtis have all given evidence as to what occurred before the will was signed by the deceased. It emerges from that evidence that before she signed the will Mr Sochacki spoke to her for the purpose of ensuring that she understood the document. He took her through the will clause by clause and asked her whether she understood each clause after he had read it to her. At some stage in the process, probably after working through the whole of the will, he asked her whether she realised that she was leaving her real estate, being a major asset, to Monica Paron, her friend and carer. The deceased replied in the affirmative. He also asked her whether anyone including Monica Paron had exerted any pressure on her to leave the house to Mrs Paron and the deceased replied 'certainly not'. The will was then executed. The evidence of those who were present is that she appeared to them to understand what she was doing. 33 After the execution of the last will the deceased continued to live at Ocean Shores with Mrs Paron and Mrs Paron's evidence, which I accept on this point, is that after a while the deceased had increasing problems with her hip. By 1995 Mrs Paron was unable to assist her to wash herself due to a back injury and it was decided that the deceased would move into nursing home at Lismore. After the deceased moved into the nursing home Mrs Paron continued to visit her regularly and during those visits the deceased recognised her. The law 34 In those circumstances the sole question for the Court to resolve is whether at the time when the last will was made the deceased had the testamentary capacity to make it. The law on the subject is not relevantly contested. The starting point is the judgment of Sir Alexander Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549. His Lordship said (at 565): 'It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects, shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - and that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.' 35 Most of the cases on the subject deal with circumstances where it is alleged that the testator suffered from a delusion which poisoned his affections towards someone who otherwise would have been a natural object of bounty. There is an element in the evidence in the present case, to the effect that the deceased became highly antagonistic towards Mrs Faulkner-Camden and decided to prefer her loyal friend Mrs Paron both in the 1992 will and (by continuation) in the last will, upon which the plaintiff based a submission that this was such a case. But the main thrust of the present case relates to the former part of his Lordship's observation, that is, the simple question whether the deceased was able to understand the nature of the act of will-making and its effects in the context of the property of which she was disposing. Perhaps the case which comes closest to the present case in a factual way is the decision of the Court of Appeal of New South Wales in Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 (16 July 1999), where the allegation of testamentary incapacity arose out of the testatrix's cerebral haemorrhage, and not only out of allegations of delusional beliefs about those with a natural claim on her bounty. That case shows, however, that the principles which emerge from Banks v Goodfellow and subsequent cases are nonetheless applicable in such circumstances. 36 Counsel for the plaintiff has relied on several propositions of law which I accept for the purposes of this judgment. The first is that unsound mind for the purpose of establishing a lack of testamentary capacity may take the form of general mental imbalance. This is established by Perpetual Trustee Co v Baker and also by another case relied on by both counsel, Re Estate of Griffith, Easter v Griffith (Court of Appeal New South Wales, unreported, 7 June 1995). Secondly, any delusion which affects the will makes the entire will invalid ( Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267). Thirdly, where in the light of the medical evidence it appears that the deceased suffered from an affliction which was relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will ( Bull v Fulton (1942) 66 CLR 295). In such cases the question is whether the evidence as a whole is sufficient to establish affirmatively that the testator was of sound mind when the will was executed ( Timbury v Coffee (1942) 66 CLR 277, 283; Woodhead at 273). 37 A particular issue on the facts of this case is whether the orders made in the Protective Division proceedings should be taken to determine the issue of testamentary capacity. As I have mentioned, they were made by consent. It may be arguable, nonetheless, that an issue estoppel arises out of the Court's declaration that the deceased was incapable of managing her affairs. However, any such estoppel does not bear directly upon the issue for determination in this case. The question of incapacity to manage affairs which arises under the Protected Estates Act 1983 (NSW) is not the same as the question which arises when the issue is about testamentary capacity. Specifically it is not hard to imagine cases (and perhaps this is one of them) where it is possible to conclude that a person is incapable of managing their affairs but nevertheless of sound mind, memory and understanding to the extent required to enable that person to make a valid will. 38 I should mention one other point of law. During the hearing I inquired of counsel whether either party submitted that the deceased's testamentary capacity was different on 16 June 1993 when instructions were given from 2 July 1993 when the will was executed. And if there was such a submission, I inquired, which would the law identify as the relevant date for the purpose of determining testamentary capacity? Counsel for the plaintiff referred me to a passage from The Laws of Australia , Law Book Co, 1999, Ch 4, Pt A, Div 3, paragraph [65], according to which: 'If a testator was of sound mind at the time of giving instructions and not at the time of the execution, the will will be admissible to probate if at the time of execution the testator was aware that he or she was executing a will for which he or she had previously given instructions'. 39 Several authorities are given for that proposition, including Parker v Fellgate (1883) 8 PD 171. 40 However, in the view I have taken of the facts it is unnecessary for me to determine that issue. For the reasons which I shall give, my conclusion is that the deceased was sufficiently of sound mind, memory and understanding that she was capable of both giving instructions on 16 June 1993 and of executing the will on 2 July 1993. 41 An allied issue, whether the level of understanding which must be proved for the making of a new will may be reduced if the new will is similar to a previous will not under challenge, also does not need to be decided. This is because, in my opinion, the deceased had the requisite testamentary capacity even to exclude an object of bounty in June and July 1993, as well as it to confirm an exclusion which had been achieved in a previous will. 42 In these circumstances the question of testamentary capacity is to be determined with respect to the evidence of the deceased's capabilities in the period June-July 1993. The evidence before me comprises medical evidence and lay evidence and I shall consider them in turn. Medical Evidence 43 I was impressed by the evidence of Dr Hugh Fairfull-Smith, who swore affidavits on 4 November 1998 and 4 November 1999 and gave oral evidence. He is a specialist geriatrician who has had 13 years' experience specifically related to assessment of people with varying degrees of dementia. 44 He saw the deceased in 1987 and again on 23 June 1993. He expressed the opinion in his report of 30 June 1993 that the deceased had a mild to moderate degree of dementia affecting her ability to make judgments based on details. 45 His evidence distinguishes between the forgetful phase of dementia and the confused phase to which it progresses. He says that the initial symptom of the form of dementia known as Alzheimer's disease is short term memory loss which gradually expands from simple things (for example, misplacement of an object) to more severe forgetfulness (for example, that a cousin has died; or to refer to the facts of this case, that friends have recently visited). It progresses to the confused state when the patient has difficulty in dressing, gets lost in her own house, and experiences day/night disorientation. Eventually the dementia proceeds to a third phase when the patient is completely demented and is in a vegetative state. The basis for Dr Fairfull-Smith's conclusion that the deceased had reached only the forgetful stage was his interview with the deceased and a test which he performed. 46 In his interview the deceased showed him what he described as 'excellent social knowledge'. He said she was aware of the things of most significance to her and was able to remember things that had some emotional context. In his observation she was able to function socially and determine how she would spend her day. 47 He observed some elements of forgetfulness such as her inability to recall the Prime Minister's name, and poor orientation to place, and to some extent time. However, he found her to have good problem solving skills and visuo-facial orientation. 48 The test which he applied was the mini-mental status examination of Blessed and Tomlinson. In 1987 she had scored 30 out of 34. By 1993 her score was 19 out of 34, principally because of deficit in short-term memory. 49 On the basis of his observations and that test, he concluded that she retained the ability to manage her affairs in a broad sense, she was able to communicate and make a stable choice, and could grasp the significance of information. However, she would have difficulty recalling all relevant information and would only be able to get the gist of things, though she would be able to use that to manipulate her position rationally to a logically consistent conclusion. He specifically disagreed with Dr Holmes' assessment that she had advanced senile dementia. 50 Doctor Fairfull-Smith agreed that there may be day-to-day fluctuations in the performance or ability of a person with senile dementia. Improvements could be brought about, he said, by some good event. Likewise, stress elements could make the patient appear worse. Then when the stress was taken away the patient would revert to a better state. He said that in the right surroundings and circumstances the deceased, in a position of comfort with people with whom she was familiar, not feeling threatened or rushed, would be capable of making a rational decision. 51 Counsel for the plaintiff drew my attention to some evidence of Dr Fairfull-Smith in cross-examination, in which he had admitted that while it was possible that she could make a rational decision on a given day such as 2 July 1993, he could not say with any certainty that she was in fact capable of making a rational decision on that day. It seems to me, however, that Dr Fairfull-Smith's evidence in cross-examination is entirely consistent with his affidavits and goes no further than the affidavits on this question. The condition of the sufferer of dementia depends on the circumstances which obtain on the particular occasion when an assessment is needed. Doctor Fairfull-Smith based his answer to the cross-examiner on the statement that he was not there on 2 July. Considering his evidence as a whole it appears to me he was reasonably confident that her disease had not progressed so far as to prevent her from ever making a rational decision and in the right circumstances she would be capable of doing so. 52 I was also impressed by Dr Fairfull-Smith's general manner. It appears to me that he would be able to put a patient at ease and create an environment in which an accurate assessment of her capabilities could be undertaken. The description of the interview in his report of 30 June 1993 indicates in my mind that he did so when he saw her on 23 June. 53 Doctor Fairfull-Smith's evidence is consistent with the evidence given by Dr Weber. Doctor Weber is a general practitioner who cannot be expected to have the level of expertise of senile dementia possessed by Dr Fairfull-Smith. Nevertheless, he did have the opportunity of examining the deceased on 18 June 1993 and perhaps more significantly, attending at Mr Sochacki's office on 2 July 1993 and witnessing the will. His somewhat impressionistic evidence was that on 2 July, observing the deceased, he was confident that she was capable of making her own decisions. 54 The medical evidence for the plaintiff was given by Dr Petroff and Dr Holmes. Dr Petroff's report was dated 11 October 1993, relating to his examination of the deceased on 23 September 1993. This examination arose out of orders made by Hodgson J in the Protective Division proceedings, on an application by the Legal Aid Commission. Hodgson J had taken the view that since there was clearly a dispute about the capability of the deceased to manage her affairs, the Court would be assisted by further assessment. Mr Tunbridge, the solicitor for the Legal Aid Commission, confirmed that Dr Petroff would be available and Dr Petroff was accordingly appointed. Dr Petroff is a psychiatrist whose expertise is in dealing with mental disorders including depression and schizophrenia. 55 Alzheimer's disease is a physical disease affecting the brain. Doctor Fairfull-Smith gave evidence, which I accept, that one would normally refer a patient with senile dementia to a geriatrician rather than to a psychiatrist. That is consistent with Dr Petroff's own evidence to the effect that he had not treated a patient whose sole illness was Alzheimer's disease without any other components of mental disorder. Nevertheless, though a patient with Alzheimer's disease would typically be treated by a doctor other than a psychiatrist, it appears on the evidence that a psychiatrist is an appropriate person to assess the effect of such a disease on the level of understanding of the patient. In that sense Dr Petroff as an expert whose opinion is to be carefully considered. 56 Dr Petroff found that the deceased was disoriented as to time, not knowing the year, the month or even the season. She did not know where she lived and mentioned Brunswick Heads, which was her previous place of abode. She was unable to recall Dr Petroff's name, despite being told what it was and wrongly identified him as the tax man or someone sorting out her will. She had profound impairment of recent memory and could recall virtually nothing of the conversation which had occurred previously in the consultation. He said she had a very pleasant, placid demeanour giving one the impression of a person in control, but in his opinion she was severely disoriented. He said it was fairly pointless discussing matters with her as it only tended to upset her. He noted her belief that the Protective Office would cause a man to live with her and to tell her what to do. He found that she had Alzheimer's disease with dementia of moderate severity and that she was certainly not able to manage her own affairs. In reaching this conclusion he was influenced by his observation that she could very easily be taken advantage of. 57 Some aspects of Dr Petroff's evidence have caused me disquiet. Observing him in the witness box, I noticed he was inclined to speak rather quickly and at times not clearly. The explanation which Dr Petroff gives in his report of the interview, reinforced by his oral evidence, implies that nothing about the interview would have put her at ease or relieved her stress or made her feel comfortable. It appears from his report that at least a significant part of the interview related to her financial affairs. He told her - he says he did so on four occasions - that he was there to 'assess' her fitness to manage her affairs, and he inspected her cheque butts. Her interpretation that the interview was with the 'tax man' may not therefore be surprising. 58 The interview with him was the result of orders by the Court which had been opposed by the deceased. In these circumstances, while she was undoubtedly disoriented during the interview, it seems to me that the disorientation may not have been as extreme as the 'delusion' to which the cases refer. The interview with Dr Petroff is an application of the prediction made by Dr Fairfull-Smith, that the reaction of the deceased would be affected by her surroundings and that she may well be disoriented when under stress. While I do not reject Dr Petroff's evidence I am inclined to discount his conclusion to the extent that it is inconsistent with the conclusion of Dr Fairfull-Smith. 59 Dr Holmes was the deceased's general practitioner from 1984 until May 1993. He gave evidence that she suffered from 'advanced senile dementia', recording that she was unable to remember the details of day-to-day activities and had lost her short term memory. I regard Dr Holmes' evidence as consistent with the opinion of Dr Fairfull-Smith, except in one respect. The difference is that Dr Fairfull-Smith, on the basis of his knowledge and experience, describes the condition as mild to moderate in the forgetful phase of dementia, whereas Dr Holmes, relying essentially on observation of forgetfulness, describes the condition as advanced. I prefer the evidence of Dr Fairfull-Smith. Non-medical evidence 60 The defendant relies on the evidence, described above, of those who were present when the last will was signed. In my opinion it is more likely than not that the circumstances in which she signed the last will were conducive to rational decision-making, in terms of the criteria explained by Dr Fairfull-Smith. She knew the people who were there, and was familiar with the surroundings. The meeting was conducted by Mr Sochacki, whom she trusted. And most importantly, the meeting was arranged at her request and she wanted to be there. 61 The plaintiff relies on a number of incidents observed by Mrs Faulkner-Camden and Mrs Hayes. It seems to me that most of those incidents are consistent with Dr Fairfull-Smith's diagnosis that the deceased was in the first stage of dementia, for they are accounts of various kinds of the forgetfulness. Thus, Mrs Hayes gives evidence that on at least one occasion the deceased discovered an account which was very old and expressed concern that it had not been paid, and that she misplaced her keys on several occasions. Mrs Hayes also gives evidence that the deceased forgot that she had had visitors on the same day, that she could not remember, during her trip to the airport to visit Mrs Faulkner-Camden in 1991, that she was heading to the airport and assumed that her destination was a hotel, and that in 1992 she persistently forgot that her destination with Mr Faulkner-Camden and Mrs Hayes was Jupiters Casino. I accept that these events occurred, and that they indicate a significant level of forgetfulness referable to dementia, but I do not, in view of Dr Fairfull-Smith's subsequent diagnosis, take them as implying that the deceased had moved beyond the forgetful phase of the disease. 62 I am apprehensive about some aspects of Mrs Faulkner-Camden's evidence. She was very much concerned with the destination of the deceased's estate, as I have said. She had an interest, though not necessarily a direct pecuniary interest, in presenting the deceased's mental state in a bad light. She gave evidence in the Protective Division proceedings to the effect that the deceased's house was in a dirty state, but that is inconsistent with the evidence of Ms Paron and the fact that Mrs Paron assisted in the cleaning of the house on a regular weekly basis. I therefore conclude that Mrs Faulkner-Camden's evidence on that point, not repeated in the affidavits in these proceedings, was untrue. Her evidence in the present proceedings was not consistent on all points and in particular, she gave an unconvincing account of the origin and destination of the documents which became Exhibits D 2 and D 3. In the circumstances I regard it as unlikely that the deceased failed to remember Mrs Faulkner-Camden's identity, and also unlikely that Mrs Faulkner-Camdem found the deceased's wallet in the oven. But even if Mrs Faulkner-Camden's evidence on this point is accepted, it would not show in light of all other evidence that the deceased had moved beyond the forgetful phase. 63 The evidence of Mark Faulkner is that he visited the deceased with his father Timothy at a nursing home in Brunswick Heads, and that she could not remember where she had put things and did not recognise his father or himself. Mrs Paron gave evidence that the deceased received a letter from Timothy Faulkner which was posted to her from Sydney to the effect that he had come out to visit her and that he did not see her because he was running late. I find the evidence of Mark Faulkner unsatisfactory. It is a very short affidavit, and naturally enough Mr Faulkner was not available to give oral evidence, and the affidavit attributes the wrong location to the nursing home. I found Mrs Paron to be a witness of truth and I accept her evidence. I conclude that it is unlikely that Timothy and Mark Faulkner made contact with the deceased during their 1989 visit and therefore I reject the evidence of her state of mind which they purported to give. Particular instances of alleged delusion 64 Counsel for the plaintiff invited the Court to find that there were specific items of evidence which established that the deceased was deluded. Apart from matters to which I have already referred, he placed particular emphasis on some matters reported by Dr Fairfull-Smith in his report of 30 June 1993. According to Dr Fairfull-Smith the deceased said that she had been sent some letters which, she understood, asserted she was 'off her head'. She said, 'I am aware of my cousin in Sydney wanting my money, I would rather it went to a cat's home than any of them getting it.' Dr Fairfull-Smith says that the deceased explained to him that most of her relatives were in England, that she had had very little contact with them for several decades, and that she never had a good relationship with them. She explained that her cousin in Sydney was the only relative in Australia. 65 In my opinion these statements of the deceased to Dr Fairfull-Smith do not signify any state of delusion. It is clear that by June 1993 the deceased was extremely antagonistic towards Mrs Faulkner-Camden. I infer that her antagonism must have extended by that time, at least to a degree, to Mrs Hayes, because Mrs Hayes and Mrs Faulkner-Camden were good friends, and Mrs Hayes had been present during Mrs Faulkner-Camden's visit in 1992 when questions of destination of the deceased's assets were discussed. I also infer that Mrs Faulkner-Camden saw herself as a spokesperson for the English relatives and must have been understood by the deceased in that light. Therefore, when the deceased talked about 'them' getting her money, she probably had in mind the English relatives, represented by Ms Faulkner-Camden, and possibly also Mrs Hayes. Her assertion that she had never had a good relationship with her English relatives is contrary to the evidence. But in the state of mind which had been induced by the Protective Division proceedings, it is not surprising that she would have magnified the antagonism she felt towards Mrs Faulkner-Camden as the representative of the English relatives to a degree which would have caused her to disregard the earlier history of their relationship, or exaggerate the breakdown of the relationship. In any event while the relationship does not appear to me to have been bad during the 1980s, it was certainly not a close relationship with the English relatives directly and could plausibly be described as 'not a good one'. 66 It appears to me that the antagonism which the deceased felt towards Mrs Faulkner-Camden, and through her the English relatives, had an objective basis which cannot be described as an irrational. After all, Mrs Faulkner-Camden antagonised her in 1992 in a manner which caused her to exclude Mrs Faulkner-Camden personally from the 1992 will, and in 1993 Mrs Faulkner-Camden had deepened the upset which the deceased already felt by initiating the Protective Division proceedings, and at about the same time the deceased's solicitor was contacted by the English relatives. Looking at those things together, a rational testatrix may well have decided that she should take steps to ensure that her loyal friend received the property which was intended for her, and that this property should not pass to her relatives. Perhaps the only slightly surprising aspect of the last will is that the English relatives figured in it at all. Conclusion 67 I conclude, weighing the medical and lay evidence together, that during the period June to July 1993 the deceased, though under stress because of the Protective Division proceedings, and highly antagonistic towards Mrs Faulkner-Camden, had a sound mind, memory and understanding in the sense required for her to make a valid will. Consequently the proceedings must fail. I shall hear argument from the parties with respect to costs. Costs (after hearing submissions) 68 The plaintiff seeks an order that costs be paid out of the estate or that the parties be left to bear their own costs, notwithstanding that he has been unsuccessful in the proceedings. He makes submissions on three bases. 69 First, he refers to a well-known exception to the rule that costs should follow the event, in the field of probate litigation, that where the testator has been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate: Re Hodges (1988) 14 NSWLR 708, 709. In the present case there is no proper basis for applying this principle. The testator did not engage in any intentional conduct which created the problem which has been the subject of the litigation, which has arisen out of her mental disease. 70 Secondly, the plaintiff relies on another exception to the normal rule about costs, that if the circumstances led reasonably to an investigation in regard to the document propounded as the will, the costs may be left to be borne by those who respectively incurred them: see Re Hodges at 709. The plaintiff says that Dr Petroff's reports, the first with respect to the Protective Division proceedings and the second confirming his opinion in the context of the present proceedings, led reasonably to an investigation into the testamentary capacity of the deceased and produced this litigation. But I have found that on the basis of the medical and lay evidence the testator had the mental capacity to make the will. In my opinion a comparison of the medical evidence of Dr Petroff and Dr Fairfull-Smith would lead to the reasonable conclusion that the evidence of the latter was to be preferred to the evidence of the former, both because the reports indicate the contrasting environments in which the deceased was assessed by the doctors and also because it was evident from the reports and surrounding circumstances that Dr Fairfull-Smith had a superior level of experience as well as relevant expertise. 71 Finally, the plaintiff seeks to invoke the Court's discretion by referring to two matters. The first matter is that the executor chose to apply to and obtain probate in common form, although in the plaintiff's submission the better course would have been to seek probate in solemn form. That may well be so, but it seems to me that whether the parties were as present aligned or on the other sides of the record the results would have been the same. The absence of an application for probate in solemn form has not affected the outcome. 72 The plaintiff also refers to some correspondence from which it emerges that in October 1999, not long before the hearing, the plaintiff offered to settle the matter on the basis that the proceedings be dismissed without any order as to costs. But by that time, the defendant had presumably incurred significant costs in respect of which there was no offer of reimbursement. 73 In all the circumstances, therefore, it appears to me the proper order is that the plaintiff should pay the defendant's costs. Orders 74 I order that the Statement of Claim be dismissed and that the plaintiff pay the defendant's costs of the proceedings. * * * * * * * * * * Last Modified: 12/16/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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