New South Wales Supreme Court CITATION : Robinson v Spratt [2002] NSWSC 426 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 101632/00 HEARING DATE(S) : 7, 8, 9 May 2002 JUDGMENT DATE : 16 May 2002 Theresa Mary Robinson (Plaintiff/Cross Defendant) PARTIES : Clarice Rita Lamerton (Plaintiff/Cross Defendant) Audrey Veronica Spratt (Defendant/Cross Claimant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr J A Trebeck (Plaintiffs/Cross Defendants) Mr J Millar (Defendant/Cross Claimant) SOLICITORS : Alderdice & Clarke (Plaintiffs/Cross Defendants) Paul A Brown & Co (Defendant/Cross Claimant) CATCHWORDS : WILLS -testamentary capacity - series of wills - no actions of solicitor to determine capacity - testatrix commencing to suffer dementia and abuse of alcohol from 1989 - whether suffient understanding of effect of will - change in proportions of the distribution of the estate Banks v Goodfellow [1870] LR 5 QB 549 CASES CITED : Re Estate of Griffith (deceased) Easter v Griffith (unreported NSWCA 7 June 1995) Timbury v Coffee (1941) 66 CLR 277 DECISION : See paragraphs 44 et seq. - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J THURSDAY 16 MAY 2002 101632/00 THERESA MARY ROBINSON & ANOR V AUDREY RITA LAMERTON V AUDREY VERONICA SCOTT JUDGMENT Outline 1 Joan Margaret Godfrey (Mrs Godfrey) died on 24 July 1999 aged 80 years. Her husband had pre-deceased her and she had no children. Mrs Godfrey was one of a family of eleven children of whom seven sisters survived her. 2 During her lifetime Mrs Godfrey made a number of wills. Between 1978 and 1995 she made nine wills, although it is not contended she had capacity when she signed the eighth and ninth documents dated 19 September 1994 and 10 March 1995 respectively. 3 The plaintiffs, Mrs Robinson and Mrs Lamerton, who are sisters of the deceased, seek a grant of probate in solemn form of a will dated 4 June 1993. Their sister, Mrs Spratt the defendant, is also an executor named in that will. Mrs Spratt says that the testatrix lacked testamentary capacity to make the will dated 4 June 1993. By cross-claim she seeks probate in solemn form of a will dated 26 November 1990, or a copy thereof, the original having been destroyed. Mrs Spratt and Mrs Robinson and Mrs Lamerton are the executrices named in the 1990 will. Facts 4 Mr Davenport, a partner in Messrs Alderdice and Clarke, solicitors of Chatswood, acted as solicitor for Mrs Godfrey from 1973 at least for most of her legal requirements. He prepared seven of the nine wills I have mentioned. No original wills prior to 1993 are in evidence because Mr Davenport had a practice of destroying a prior will when it was revoked by a new will. 5 A copy of the will made by the deceased on 26 November 1990 is in evidence. It is apparently a photocopy of the will after execution bearing signatures of the deceased and the attesting witnesses. Mr Davenport was an attesting witness and gave evidence of due execution. It is accepted that if it is the last will of the deceased, probate in solemn form of the will as contained in a copy should be granted. If that were the position then the plaintiffs should, I think, be given the opportunity of taking a grant together with the cross-claimant, but it is not necessary to decide that yet. 6 By her 1990 will Mrs Godfrey gave her Wamberal property to Mrs Robinson on trust to pay the outgoings, to allow the property to be used at Mrs Robinson's discretion by the deceased's relatives and friends and, at the end of January 2005, to sell the property and to pay the net proceeds of sale to Erin Haughton, her great-niece, being the granddaughter of her deceased sister, Ruth. The residue of the estate was given to the trustees upon trust to pay legacies of $10,000 to each of Valerie Pike, her niece and Bruce Kilo, the son-in-law of her sister, Dorothy and to pay a legacy of $8,000 to her nephew James Rejek, the son of her sister, Audrey. Clause 4(e) of the will provided for the distribution of the balance of the estate as follows: (e) to hold the balance then remaining upon the following trusts: (i) One share for my sister THERESA MARY ROBINSON. (ii) One half share for my sister DOROTHY CLARE COSTELLO. (iii) One share for my sister AUDREY VERONICA SPRATT . (iii) One share to be divided equally between my nieces MARION THERESE HAUGHTON and VIVIENNE MAREE HAUGHTON to be paid to each of them when she attains the age of twenty-five (25) years. (iv) One quarter of a share to CLARICE RITA LAMERTON (or Twenty thousand dollars ($20,000) whichever is the larger). (v) Three quarters of a share to EILEEN RUBY GALE . The strange proportions added up to 4 ½ shares. 7 There was provision for substitution which is irrelevant in the events which have happened and there were other administrative clauses. 8 On 23 March 1993, Mrs Godfrey made a will with a solicitor, Mr McDermott, also at Chatswood. He did not give evidence and apparently his practice has been taken over by another solicitor. A copy of this will is in evidence. The original has not been located. This does not matter as no person seeks to have it admitted to probate and the persons interested have been cited. This will made no specific provisions as to the Wamberal property, which fell into residue. The legacies to James Rejek and Bruce Kilo remained, but no legacy was given to Valerie Pike. The residue was given under Clause 3(d) as follows: (d) To hold the balance then remaining upon the following trusts: (i) One Share for my sister THERESA MARY ROBINSON . (ii) One Quarter Share for my sister DOROTHY CLARE COSTELLO . (iii) One Share for m y sister AUDREY VERONICA SPRATT. (iv) One Share to be divided equally between my nieces MARION THERESE HAUGHTON and VIVIENNE MAREE HAUGHTON. (v) One Quarter of a Share to my grand niece ERIN HAUGHTON to be paid to her when she attains the age of twenty-five (25) years. (vi) One Quarter of a Share to my sister CLARICE RITA LAMERTON (or Twenty thousand dollars ($20,000) whichever is the larger) (vii) One Quarter of a share to my sister EILEEN RUBY GALE . 9 The layout of the will was similar to the 1990 will. The dispository provisions, although more simple, follow the precise lines of the earlier will and the provision of substitution and the administrative powers of the trustees are in the precise terms of the 1990 will. It is quite clear that Mr McDermott had a copy of the 1990 will, or perhaps some earlier will prepared by Mr Davenport in much the same terms, when preparing the will of March 1993. However, under Clause 4 of the 1990 will, the opening words are "I give devise and bequeath the rest and residue of my estate both real and personal whatsoever and wheresoever unto my trustees", whereas the opening words of Clause 3 of the March 1993 will are "I give devise and bequeath my estate both real and personal whatsoever unto my trustees". The will dated 4 June 1993 of which the plaintiffs seek probate again was in the same general form as the 1990 and March 1993 documents. Clause 3 commenced "I give devise and bequeath the whole of my estate both real and personal; whatsoever and wheresoever unto my trustees." The legacy to Bruce Kilo remained but the legacy to James Rejek was deleted. Clause 3(c) of that document is as follows: (c) To hold the balance then remaining upon the following trusts: (i) One share for my sister THERESA MARY ROBINSON . (ii) One quarter share for my sister DOROTHY CLARE COSTELLO. (iii) One half share for my sister AUDREY VERONICA SPRATT. (iv) One share to be divided equally between my nieces MARION THERESE HAUGHTON and VIVIENNE MAREE HAUGHTON to be paid to each of them when she attains the age of twenty-five (25) years. (v) One quarter of a share to CLARICE RITA LAMERTON or (Twenty Thousand Dollars ($20,000) whichever is the larger). (vi) One quarter of a share to ERIN RUTH HAUGHTON to be paid to her when she attains the age of twenty-five (25) years. In addition to any other powers they may have, my Trustees shall have the power at their discretion to pay monies out of the share to ERIN RUTH HAUGHTON for her education prior to her attaining the age of twenty-five (25) years. (vii) Three quarters of a share to EILEEN RUBY GALE. The wording of the substitution provision and the administrative provisions was precisely the same as in the two earlier documents. 10 On 19 September 1994 Mrs Godfrey made another will. I will return to this but it was in exactly the same terms as the 1993 will. Mr Davenport had some doubt about the capacity of Mrs Godfrey in 1994 and for that reason, contrary to his usual practice, he did not destroy the prior will when he put the 1994 will in his strongroom. 11 On 10 March 1995 Mrs Godfrey made another will with another solicitor arranged by Mrs Spratt. This deleted the legacy to Bruce and made no provision for Erin. Otherwise it made provision for the same persons with some adjustment of shares. Mrs Spratt originally sought a grant of probate of this will but no longer does so. She said that while she herself had considered the deceased had testamentary capacity in March 1995 she had accepted advice and medical opinion that this was not so. Assets in the estate 12 There is no detailed evidence of the assets owned by Mrs Godfrey at the times she made her will in 1990 and the later documents. At the date of her death her estate consisted of the following: Estimated Values (a) 11 Private Road, Northwood $ 750,000 (b) Furniture in home $ 3,276 (c) Unit 7/14 Nicholas Street Wollstonecraft $ 290,000 (d) Unit 12/270 Pacific Highway Artarmon $ 320,000 (e) 28 Dillon Street, Wamberal $ 220,000 (f) Funds held by Protective Commissioner $ 72,961 _________ $1,650,237 There were disclosed liabilities of $103,124. Medical matters 13 After the death of her husband in 1973 the deceased's mother lived with Mrs Godfrey at Northwood for some time and probably until she died in 1985. After that time Mrs Godfrey's health began to deteriorate, partly as a result of a long term drinking problem. She was admitted into hospital in November 1989. In a report of 27 February 1990, Dr Storey, a specialist neurologist, reported that at the time, namely November 1989, Mrs Godfrey was "having transient episodes of confusion and dysphasia and at times frankly paranoid delusions". A neuropsychological assessment of Diana Carine on 19 February 1990 reported that Mrs Godfrey had been "somewhat confused and has tended to be unco-operative … while immediate memory was sometimes intact (depending on her level of alertness) performance on all other tests of cognitive function was poor. Impression: disruption of language function in this patient appears in the context of generalised rather than focal cerebral dysfunction." 14 After Mrs Godfrey returned from hospital in 1989, Mrs Robinson, who owned her own home at Epping, commenced to live with her sister intermittently and by 1992 she was living full time at Northwood, although she was often away from the house during the day. There was another admission to hospital in February 1990 with the same symptoms as in 1989. In February 1992, Dr Storey gave a report which may have been for the purpose of supporting an application to the Taxation Commissioner to waive penalties. In that report Dr Storey said: I have seen Mrs Godfrey on many occasions since 1989 when she presented with episodes of speech disturbance and a gradual deterioration in her memory. She has been extensively investigated for this problem and it is likely that this is due to cerebro-vascular disease. However, her memory has been deteriorating and for the last 18-24 months she has really not been able to manage her own affairs. 15 On 4 February 1991 the deceased signed an enduring power of attorney in favour of Mrs Robinson. After that Mrs Robinson looked after the deceased's financial affairs and paid all accounts, although she said that the payments were approved by Mrs Godfrey. On the day when she signed the March 1993 will, Mrs Godfrey executed a new power of attorney in favour of Mrs Robinson and Mrs Spratt jointly. Mrs Robinson said that in 1993 and earlier she and the deceased (and sometimes other sisters), would go to a fish shop at Crows Nest and to a restaurant in the Lane Cove Plaza. On these occasions, at least when Mrs Godfrey had not been drinking, it seems that she could carry on a normal conversation discussing family matters and the like. 16 Medical records of her local doctor show that she saw Mrs Godfrey regularly during 1992 and 1993, often for arthritic problems but also for alcohol induced problems. The notes report "fitting" on 7 April 1993 and "very confused" on 10 May 1993 and "had a fall, fracture rib cage strapping" on 3 June 1993. 17 By 1993 the deceased's drinking and mental state deteriorated to the extent that she would often stay in bed all day. 18 According to Mrs Robinson, Mrs Godfrey's condition deteriorated markedly after 1994. She would drink until she passed out and just lie on the floor. Her speech became difficult to understand, she became aggressive and she had difficulties with ordinary comprehension. 19 Mrs Lamerton in an affidavit sworn on 6 May 2002 said that she came to Sydney regularly and stayed at Northwood with Mrs Godfrey. She visited five or six times in 1993. She said the deceased spoke of the Lamerton children and knew their names. They would watch TV and discuss it. They could have normal conversations. Mrs Godfrey knew that a loan to a niece had been repaid and said, "the caveat on the title can now be cleared up". 20 Dr Rosenfeld, a specialist geriatrician gave a report dated 20 December 2000. This was really directed to the testamentary capacity of the deceased in 1995, not in 1993, as that was then the issue between the parties. He had read the reports of the neuropsychologist and of Dr Storey, to which I have referred, and reports of other specialists given in 1995. I set out part of his report as he gives a description which is not challenged of matters between 1990 and 1993. He said: The conclusions arising out of this illness, and the tests that were performed, are that, in addition to the effects of alcohol, there is the likelihood that brain ischaemia (deficiency of blood supply and oxygenation of the brain) is present. Brain ischaemia is a further important cause of deteriorating mental capacity and in this case it has also lead [sic] to the occurrence of epilepsy (fitting). It is clear from the history and the notes that Mrs Godfrey has declining mental function. The neuropsychological report documents major cognitive difficulties. By the end of 1990 a power of attorney was given to Theresa Robinson because "Joan became concerned about her affairs". From that time Mrs Robinson attends to the "paying of bills and organising Joan's tax etc". In Theresa Robinson's affidavit it is evident that, even from 1990 onwards, Mrs Godfrey continues, and increases, her alcohol consumption and her "Mental state started to deteriorate markedly". Owing to increasing care needs Theresa Robinson started to live with her intermittently. By 1992 with the need for increasing assistance she began living in to assist full time. In a letter from Dr Storey 7/2/92 it is noted that Mrs Godfrey has been seen on many occasions since 1989 with episodes of speech disturbance and a gradual deterioration in her memory. She has been "Extensively investigated … likely … due to cerebrovascular disease. … memory has been deteriorating and for the last 18-24 months she has really not been able to manage her own affairs." 21 I will return to the medical evidence later. This part of the report is a useful summary of the medical facts at the relevant date. 22 There was a serious falling out between Mrs Robinson and Mrs Spratt towards the end of 1994. The reasons for this are not relevant to this case. In August 1994 the deceased was admitted to the Caroline Chisholm Nursing Home but returned home to Northwood a month later. On 13 October 1995 an application was made to the Guardianship Board by Mrs Robinson that she be appointed guardian of Mrs Godfrey. It seems that Mrs Spratt opposed that and that as a result the Guardianship Board appointed the Public Guardian as guardian. Mrs Robinson wrote a letter to the Guardianship Board in support of her application. In that letter she said, inter alia: "Joan's condition of dementia first began to be apparent in a mild form from about 1989 or 1990 and I stayed with her with increasing frequency during this time. Her condition had deteriorated, from 1991, to an extent that I was required to stay with her on a full time basis. Mrs Spratt has a record of attempting to benefit from Joan's estate well and above Joan's wishes. I believe that Mrs Spratt's latest action of removing Joan from Caroline Chisholm Nursing Home is another such attempt. An earlier attempt Mrs Spratt took advantage of one of Joan's less lucid moments to organise a new will through a solicitor unfamiliar with Joan's affairs or her mental condition. This overwhelmingly to Mrs Spratt's advantage. When Joan realised what had happened she was horrified and immediately changed it back. It is my concern that on Joan's death her estate be divided in the way she sought back in 1991 when she had her full faculties". The 1993 wills and 1994 will 23 Mrs Spratt took Mrs Godfrey to Mr McDermott to make the March 1993 will. She said they called to give instructions in the morning and went back later in the day to sign the will and the power of attorney. She said that they did not go to Mr Davenport because, "Joan told me that she had a bit of a spat with Mr Davenport about giving private information to the accountant without her knowledge". Mr McDermott was not Mrs Spratt's solicitor. She was given his name by an accountant who had been a friend of her late husband. 24 Mrs Spratt said that Mrs Godfrey discussed with her before they went to Mr McDermott what she intended to do. She said in cross-examination, "She wanted me to write things down for her, which properties and what she had on the last will and – quite similar to what Mr Davenport actually and so I, in my writing, put that down for her and went to Mr McDermott". Q. So by that do you mean that Joan gave you another previous will that she'd made? A. Yes, I think so. I think there were wills - she had copies of her wills. It was always on her mind, the will. Q. Are you saying that at her direction you wrote down these alterations on the will? A. Yes, the name and the fractions, I think, because I remember Mr McDermott saying that's a strange - he didn't like the fractions or the percentages or whatever it was and it was just a copy of Mr Davenport's words. Q. You were quite comfortable, were you, about Joan making her will on this occasion in March 1993? A. I was at that time, certainly, but since then medical evidence has become-- Q. I'm not asking you about that, Mrs Spratt, I'm asking you about the time-- A. At the time, yes, I did. Q. You said what was to form part of Joan's will was on Joan's mind at the time? A. Quite a lot. Q. She'd speak of it? A. Yes. Q. And what sort of things would she say? A. Well, she would just say she wasn't too sure what she was doing with her will, she wanted to go over it and one day she said to me in the kitchen she was, sort of, not crying but she was worried. She said, "Oh, I've done something to you" and she said - about the will - and I said, "What have you done, cut me out?" And she said, "No, I'd never do that" and I didn't know at the time but I think it refers back to when my full share went down to a half share, I think that that was what was on her mind. Q. This conversation occurred before the March 1993 will, did it? A. Yes. It occurred after my full share went to half a share. Q. I'm asking you about the conversations between you and Joan before the 23 March 1993 will when you took Joan to Mr McDermott? A. Mr McDermott's will, yes. Q. Before then Joan was thinking about who she was going to leave the money to; is that right? A. Well, she knew who she was going to leave her money to, she left it to the same people all the time with the exception of the legacies, but the same people were in the will all the time. Q. She was talking about that, she was talking about the proportions? A. I don't recall the conversation off hand except that we would discuss it and she would say what she wanted to do and I'd put it on a piece of paper for her and say, is that what you said, that's a quarter, that's a half or whatever. Q. So between you and Joan there was discussion of proportions, the proportion of the residue of Joan's estate that those beneficiaries would take under that will, wasn't it? A. In the way she wanted, yes. Mrs Spratt said that at this time Mrs Godfrey had good days and bad days and that the visit to Mr McDermott and the discussions about the will took place on good days. 25 It is not quite clear from all of this precisely what happened, but it seems that Mrs Spratt wrote details of the requirements of Mrs Godfrey on a copy of a previous will. It is more likely than not that this was the 1990 will in view of the comments about the difficulties about the proportionate shares, although of course there is no evidence of the contents of wills prior to the 1990 will, which might have had the same problems. 26 Mr Davenport's four affidavits cover the execution of the June 1993 and 1994 wills. In the first affidavit he said that Mrs Godfrey came to see him. In paragraph 2 he said: She brought with a copy of her will on which were written alterations. She said "I want to make these alterations to my will." I worked through the alterations with her and asked her questions to make sure that both she and I were clear as to what had to be done. We have a conversation to the effect that she wanted to omit from her will those beneficiaries who had been ruled through, alter amounts to some beneficiaries as marked and add in additional beneficiaries as shown. In paragraph 4 he said: From my conversations with Mrs Godfrey on the above two occasions (the second being when the will was executed) I was and am satisfied that at those times Mrs Godfrey was aware of: (i) what assets she owned and (ii) the people who might reasonably expect to share in her estate and those for whom she wished to make provision. 27 It is fair to say that this is misleading and he had no conversation with the deceased about her assets and no conversation as to persons who might reasonably be recipients of her bounty. In his second affidavit he explained the circumstances surrounding the will on 19 September 1994. As on the previous occasion Mrs Godfrey attended about week before the date of execution with handwritten alterations to a previous will setting out what she wanted. He said to her on this occasion "Take a look through this and see if it is what you want". And Mrs Godfrey said "Yes, that's right". He said that he thought Mrs Godfrey had testamentary capacity but he was not completely sure and "she was hesitant in giving her answers and vague as though she was floating on a cloud". It was for this reason that he did not follow his usual practice and destroy the earlier will. Extraordinarily enough he did not realise that the will made on 19 September 1994 was exactly the same as the will which had been made on 4 June 1993. 28 In his third affidavit dated 5 September 2001, Mr Davenport gave evidence of his experience in making wills. He stated that on taking instructions for the 1993 will and on its execution he observed the speech and behaviour of Mrs Godfrey and there was nothing unusual about them. He said that her speech was not slurred or hesitant and that the content of what she said was sensible and relevant and her movements and mannerisms were normal. He then said "I have no doubt from our conversations on those occasions and from her demeanour on those occasions that she knew what she was doing when she requested those alterations". 29 In his final affidavit of 24 April 2002 Mr Davenport gave further evidence relating to the 1993 will. First, he gave evidence of the preliminary conversation as follows: 2. About a week prior to 4 June 1993 Joan Margaret Godfrey ('Mrs Godfrey") attended my office by appointment. On this occasion we had conversations which included the words to the effect stated below. 3. I went to the waiting room and said "Hello, Mrs Godfrey". She said "Hello Mr Davenport." I said "It's a bit cold today" She said "Yes, it is" I said "Come on through" 4. I walked down the passageway to my office and Mrs Godfrey followed me. I said "Take a seat." Mrs Godfrey sat in the chair facing my desk and I sat down in my chair behind my desk. 5. I said "How are you?" She said "I'm fine thank you Mr Davenport" I said "What can I do for you?" Stopping there, in cross-examination Mr Davenport said that this evidence was just a reconstruction. It was just the sort of conversation that he said he had with all clients. Whether he said it was cold or hot or something else he really did not know. The evidence is of no value whatsoever. He then went on in paragraphs 7 to 15 of that affidavit as follows: 7. She said "I want to make some alterations to my Will. I have made the alternations I want on this copy Will." 8. I looked at the top sheet of paper and saw that it was one of her previous Wills which had been altered in numerous places by hand. I cannot recall whether the Will which had been altered was the last Will drafted by me. I can not recall the date of the Will which had been altered by Mrs Godfrey. If it had been drawn by another solicitor, I would have remembered that. 9. I said "You want to leave the executrices the same?" She said "Yes, I do." 10. I then discussed the alterations with Mrs Godfrey. I cannot recall the precise content of that conversation but it included statements by Mrs Godfrey as follows: "I want to leave out the legacy to (here she mentioned a person)." "I want to change the share going to (here she mentioned a person) from a one half share to a one quarter share." 11. I then said to her "I can make those alterations. When would you like to come in and sign the Will?" She said "I can come in next Friday" I said "What is the best time for you?" She said "How about 12.00 noon?" I said "that will be fine. I will see you then." 12. Mrs Godfrey then left my office. The meeting lasted about 20 minutes. In the intervening period I had the Will retyped. 13. Mrs Godfrey again attended my office punctually at the appointed time on 4 June 1993. On this occasion we had a conversation which included words to the effect stated below. I said to her "Hello Mrs Godfrey" She said "Hello, Mr Davenport". I said "It's a bit cold today" She said "Yes it is." I said "And how are you today?" She said "I'm fine thank you Mr Davenport" I said to her "Have a look at this and see if it is what you want". I handed her the new Will. Mrs Godfrey spent several minutes in which she appeared to be reading the Will at the end of which time she said "Yes. That is what I want." 14. I then called my secretary Selina Ellison into my office and Mrs Godfrey signed the Will in our presence. I said to her "Will we keep this will in our strong room?" She said "Yes please". Annexed hereto and marked with the letter "A" is a copy of the page of our firms Will register. 15. I said "This old Will is now revoked. Do you want me to tear it up?" She said "Yes please" I then tore up her old Will in her presence and placed the pieces in my waste paper basket. The meeting which had occupied about 20 minutes, then concluded. 30 Mr Davenport says again that he was satisfied that the alterations to the will were what the deceased wanted and that she appeared to be behaving quite normally. This affidavit sworn on 24 April 2002 was made almost nine years after the will in question was executed. Most of the conversations set out are pure reconstructions and should be given little weight. None of the conversations, if they took place, show anything other than that Mrs Godfrey was agreeable. In cross-examination Mr Davenport accepted that he did not know whether or not Mrs Godfrey had actually read the will and understood it. He asked her no questions to satisfy himself that she understood it; he asked her no questions as to the reasons for the changes; he asked her no questions about whether or not there had been any change in her assets. He did not explain to her the effect of the changes so far as the altered amounts going to various beneficiaries as a result of the changes were concerned. Extraordinarily enough he did not know whether or not the copy of the prior will on which alterations were written was a copy of the last will of the deceased held by him. He thought it did not matter. He said that the will on which the relevant alterations were written did not have the signature of Mr McDermott on it as he would have remembered if it had. He said there was no reason for him to think that the will upon which the alterations were written was not prepared by him because if it were in fact the will prepared by Mr McDermott, the wording was precisely the same as the wording that he would have used. He said that there was no reason to ask Mrs Godfrey about her assets because both he and she were well aware of these. He said that there was no reason to question her about the motivation for the changes which she was requesting. He seemed unable to accept that the changes of proportions were not necessarily easy to understand so far as they brought about changed entitlements. He was unable to accept that the proportionate shares under the 1990 will would have been extremely difficult for a lay person to comprehend. In that I think he was entirely incorrect. It is not at all clear to me why any lay person would think that a will giving one share of residue to a sister gave to that sister a two-ninths share of residue. I can quite understand why Mr McDermott had difficulties with the proportions. 31 I have said on other occasions and will continue to say that a solicitor who just gives a will to a testator to read and some minutes later asks whether that is what is required can get little comfort from an affirmative answer. I continue to hold the view that wills should be read out loud to testators with pauses to explain the terms during the reading to ascertain that those terms are understood by the testator and carry out his or her intentions. The effect of the changes from the 1990 will to the June 1993 will, if those were the changes made, as it seems more likely than not that they were, brought about a change that was far more than fine tuning. The beneficiaries might have been much the same but some of the shares were significantly different. I also think it strange that a solicitor, acting for a longstanding client, who wishes to change a will, would not check to see the terms of the last will held by that solicitor, so as to ensure that the changes were being made to that will and not to some other document. Apart from anything else that would help to assure the solicitor that the testator understood the effect of his or her actions and that changes were needed. The 1994 will shows the justification for this procedure. The evidence of Mr Davenport, at least in his first affidavit and perhaps in his later ones, is of real significance, because to some extent the specialist medical witnesses relied upon his statements when coming to some of the conclusions which they arrived at whereas there was no basis in fact for the statements. Additional evidence as to testamentary capacity 32 As I have said I do not think the evidence of Mr Davenport was of much assistance on this question. His evidence in essence what that the deceased behaved normally and spoke normally, but it took the matter no further. Mrs Robinson in her evidence clearly went to considerable pains to endeavour to show that Mrs Godfrey deteriorated markedly from 1994 onwards. She kept referring to that date, obviously understanding it significance. I think there was little basis for her attempted differentiation between 1993 and 1994, albeit that Mrs Godfrey was on a steady decline and that her drinking was getting worse. Mrs Robinson said that she came to the view that her sister lacked testamentary capacity after a fall in 1994. Nevertheless she agreed that Mrs Godfrey had amnesia and forgetfulness in 1990 and that she attended to all the household outgoings and general expenses, but that agents were appointed to manage the leased real estate properties. She accepted that by 1992 Mrs Godfrey needed constant help, could not drive, and would be unable to find her own way to medical appointments. For some reason she said that she did not think that Mrs Godfrey was drinking to excess in 1993, although it is perfectly clear that she was. Mrs Lamerton said that in May 1993 she was staying at Northwood with Mrs Godfrey. She said that Mrs Godfrey asked for her to look for a will which was the 23 March 1993 document. She then went on to say at T43: I gave it to her and I said, "Is this what you want?" She said, "Yes." The Will on 23 March 1993. I saw that. I didn't read the Will. I sat with her. She seemed to be a little bit perturbed about things and she said to me that the ones that she had helped she's not leaving anything to them, she's leaving it to the ones she hadn't helped. I said, "That's all right." She said, "Nobody is getting my home. My home will be sold." So they are the sort of conversations I had with her. She also told me that my daughter didn't owe her any more money. I read a solicitor's letter that she had given me to read. 33 Mrs Lamerton's evidence, which only appeared when she swore an affidavit the day before the hearing commenced, is of little value. She was a quite unsatisfactory witness, unwilling to answer questions properly and quite clearly having no intention of saying anything other than something which assisted the case which she was endeavouring to make out. Unless her evidence was supported by some witness other than Mrs Robinson I would pay little attention to it although I am prepared to accept her evidence about the repayment of the debt owed to the deceased by her daughter. I have some doubts about the rest of the passage quoted, but unless the dispositions in the will were shown to accord with the statement, the evidence really goes nowhere. That was the position as the matter was not taken further. 34 Mrs Spratt was a far more satisfactory witness. She was quite prepared to say that Mrs Godfrey took an interest in the payments which were being made, both before and after 1993. She was quite prepared to say that she considered that Mrs Godfrey had capacity in 1993 and also in 1995, but she accepted the evidence of doctors that this was not the case. In particular she accepted the evidence of Dr McMurdo about this. 35 The three medical witnesses were all impressive and considerable reliance can be placed on what they said. Dr Tuly Rosenfeld was the expert called for the plaintiffs. It was in his second report of 24 October 2001 that he addressed the question of testamentary capacity in June 1993. Prior to this he had really given attention to capacity in 1995, because at that time Mrs Spratt was propounding by cross claim the will of 10 March 1995. In his report he said on the balance of the information that he had reviewed he considered it more likely than not that Mrs Godfrey had capacity on 4 June 1993. To some extent his conclusions were based upon the evidence of Mrs Robinson about the deterioration during 1994, the problems with greater drinking, speech, paranoid behaviour, hiding keys and aggression together with mood swings. However, he said that in the first half of 1993 there were periods of improved functioning and that Mrs Godfrey was able to satisfy Mr Davenport completely that she was able to give and understand instructions, albeit that during the same period the general practitioner described the deceased as very confused on 10 May. He reported that Mr Davenport was able to go through the detail of the will with Mrs Godfrey and was satisfied that she understood what asset she owned. In his summary for the basis of his conclusions he said: 1. Mrs Godfrey's physical and mental function has a fluctuating course, consistent with the recurrent episodes of alcohol excess, as well as a history of episodes of fitting (epilepsy). These would result in periods of acute deterioration, and the improvement to her baseline, in her physical and cognitive function. 2. A senior and competent solicitor, acquainted with the subject (client) and aware of testamentary issues, was satisfied of her testamentary capacity. He would be very likely to have been concerned about her capacity had she been affected by the factors that would have been most likely to have led to an acute deterioration in her mental and testamentary capacity. This same solicitor later (in 1994) demonstrates this awareness when, at that later time he is confronted with these concerns. 3. The criteria by which testamentary capacity can be determined are satisfied to the extent that, on the basis of the information provided for that time, Mrs Godfrey did understand the purpose and effect of a will and she was, by the observation of Davenport at that time, aware of the nature and extent of her assets as well as the changes to the proportions of the estate. There is no indication at that time of delusions that might affect her determination. 4. She demonstrated, in the nature of the changes to the will, her intent to alter the proportions of what she was leaving to her beneficiaries. The changes made were not in my opinion so complex to raise the question of her understanding of fractional differences. I am of the opinion therefore that, while it is clear and evident that by 1995 she did not have testamentary capacity, that there is sufficient evidence to suggest that in June of 1993 she did, on the balance of evidence available to me, have testamentary capacity. The difficulty about this is that paragraphs 2 and 3 of the summary are based upon statements in the affidavit evidence of Mr Davenport for which there was no foundation. While this did not necessarily cause the doctor to withdraw his opinion it gave him cause to doubt it. 36 Drs McMurdo and Peisah were the experts called by the defendant. Dr McMurdo considered that the deceased was on a downhill path with progressive dementia. This was compounded by regular alcohol consumption and an epileptic phenomena causing periods of confusion. His difficulty was to determine the time at which the deceased became incapable of making a will. He had no doubt that she was incapable in 1995. Having regard to the opinion of Dr Storey of 7 February 1992, he thought it more probable than not that she was not fit to prepare a will on that date and almost certain that she was not fit to do so thereafter because of "progressive further mental deterioration". His doubts about his opinion came about to some extent as a result of the affidavit evidence of Mr Davenport, but as I have said that evidence is of little value apart from the fact that the deceased presented to him as being in control of her faculties and understanding what she was doing, but that was really upon appearance and some small conversation rather than upon any examination by questioning. The fact that Mrs Godfrey had discussed her requirements for her March will with Mrs Spratt did not cause him to change his view. 37 Dr Peisah came to the conclusion that the deceased would not have had capacity in 1990 and she did not have capacity in 1995. Like the others she was less certain about the position in 1993. She considered that the deceased would, in 1993, have understood the purpose of a will and I think that is not in doubt. She thought that as Mrs Robinson had been managing the deceased's affairs for some years prior to 1993, it was more probable than not that Mrs Godfrey did not know the nature and extent of her assets, although she noted that Mr Davenport was satisfied that she did. In view of the evidence of Mrs Spratt as to conversations about the units and discussing the outgoings and payments for outgoings I do not think that Dr Peisah's opinion as to lack of knowledge of the nature and extent of her assets was correct so far as Mrs Godfrey was concerned in 1993. I would find that it was more probable than not that Mrs Godfrey understood the assets which she had, which were basically real estate assets, although it was probably unlikely that she understood their value. That is, however, not unusual in persons as they get older, knowledge of the location and identity of particular real estate assets and some general understanding of their value would be sufficient. The more serious question was whether or not Mrs Godfrey "disposed of her assets with understanding and reason". In other words did she understand the effect of the dispositions: Timbury v Coffee (1941) 66 CLR 277 at 280. Without the evidence of Mr Davenport, Dr Peisah thought it unlikely she would have done so. She noted that the significant changes between the November 1990 and the 1993 wills. She thought that it would have been important for Mr Davenport to satisfy himself that Mrs Godfrey understood fractions and roughly what the changes in the shares of the estate represented and why she made these changes. As I have said, contrary to the views of Mr Davenport I regard the change of fractions as significant and not necessarily easy to comprehend so far as changes in actual benefits were concerned. She thought that the change of wills between March and June showed a lack of consistency, perhaps brought about by family conflicts and that her frontal impairment would make her susceptible to such family conflicts. Even accepting the evidence of Mr Davenport in his affidavits, Dr Peisah considered it was more likely than not that the deceased did not have capacity in June 1993. There was certainly no reason for her to change this opinion having regard to the evidence which Mr Davenport gave from the witness box. Discussion 38 The first matter which I think is of some significance is to decide whether or not the copy of will upon which the changes were made, which brought about the June 1993 will, was the 1990 will, or the March 1993 will. I have come to the conclusion that it should be found that it was the 1990 will. The reasons for this are that Mr Davenport said that there were numerous changes made on the copy will in question. There were six on the 1990 will and three on the 1993 will. He said that one share changed from one half to one quarter. It was only from the 1990 will that, by the wording, this might be thought to have happened, although in fact it was not such a change, but from the one-ninth to one-sixteenth. There were changes to beneficiaries named in the 1990 will and there was only a change of one beneficiary in the two 1993 wills. On the other hand Mr Davenport gave no evidence as to discussions about the Wamberal property and of course it was not mentioned in the March 1993 will. There is, however, also to be taken into consideration the fact that in the residuary clause 4 of the 1990 will and in the dispository clause 3 of the June 1993 will, the word "wheresoever" appears and does not appear in the March 1993 will. I find that the 1990 will was the one upon which the June 1993 will was based. 39 There is a further question as to the significance of this , if any. Counsel for Mrs Spratt says that the difference is significant as it shows that the testatrix overlooked the will which she had made less than three months earlier when giving instructions for her June will to Mr Davenport. As against that it was put that she may not have wanted Mr Davenport to know that she had gone to a different solicitor to make her will in March, but it is just as likely that she would have said she made a mistake and had come back. There is also to be taken into account the fact that the deceased made a will in September 1994, precisely in the terms of the 1993 will. Looking at this from one perspective it might tend to show that the June 1993 will was a rational one if fifteen months later the deceased purported to make one in precisely the same terms. As against that the deceased must have thought in 1994 that she was altering something and, if she had no memory of the 1993 will, it might indicate either that she had deteriorated substantially in the fifteen months or that she never really understood the effect of what she was doing in June 1993. 40 While it is true that the deceased discussed with both Mrs Robinson and Mrs Spratt some financial matters such as a payment of accounts, those discussions do not reveal any deep understanding of these matters other than that the deceased agreed that the accounts should be paid. The making of the two wills in 1993 so close to each other in itself indicates some question about capacity. Apart from the fact that one sister might have been in more control than the other on the two occasions, there is no explanation for the significant change in the proportionate share going to Eileen. If the deceased had some discussions with Mrs Spratt about the beneficiaries under the March will, and I accept that she did, then the change of proportionate share to Eileen, less than three months later, is difficult to understand. Taking the estimated values at the date of death, the approximate change in entitlement between a share of 25% and one of 12 ½% is the difference between $375,000 and $187,500. The difference between 6.25% share and an 18.75% share is the difference between $93,750 and $281,250. These are not minor adjustments. Though counsel for the plaintiff constantly spoke about the adjustments being just fine tuning, they are far more than that. 41 I have come to the conclusion that the deceased was aware that she was making a will in June 1993; I think the evidence of Mr Davenport is sufficient to establish that. I think it likely that the deceased was aware in general terms of the nature and extent of her estate insofar as she was aware of the nature of her assets and might have had some general idea of their value, although that is not established. As the identity of the beneficiaries did not change significantly over the period, it is likely that the deceased was aware of those who might be thought to have a claim on her bounty. I do not think that it has been shown that Mrs Godfrey was able to evaluate and did evaluate the strength of the claims of those persons who took under the 1993 wills. In other words I do not think it has been established that she sensibly evaluated the claims and that she had any sensible basis for making the changes that she made to the will in March 1993 and the next will in June 1993. As I have said, contrary to the evidence of Mr Davenport, the changes between the 1990 and the 1993 wills are quite difficult to comprehend. When the effect of Mr Davenport's evidence on the reports of Dr Rosenfeld is taken into account then the strength of that doctor's opinion - to a large extent falls away. The evidence of medical practitioners who saw the deceased around the important times is often more valuable than the evidence of those who are relying on reports of others. In that regard I consider the reports and letter of Dr Storey to be very significant. There is no basis to suggest that she would have written a false letter in 1992. What she said there is of considerable significance and goes against a finding of capacity in 1993 as the condition is of decline, not recovery. I accept the lay evidence as to good days and bad days and take note of the fact that the expert witnesses accept this as well. It is, however, difficult to understand how, if 23 March 1993 was a good day, 4 June 1993 was a good day as well, without any explanation being given for the changes made from one date to the other. The clear psychiatric evidence is that the deceased was on a downhill path from 1989 onwards as a result of dementia. There were some better periods but the path was always downwards. I accept that the court should be careful in determining that a deceased person did not have testamentary capacity at the date of making a will. It is easy to cast doubts upon that capacity in respect of people as they get older. The average age of the community is increasing and people wish to continue to be thought responsible for their own affairs and not to have people casting doubts upon this by reason some particular matters of somewhat strange behaviour. Re Estate of Griffith (deceased) Easter v Griffith (unreported NSW CA 7 June 1995). I must, however, bear in mind that had it not been for the affidavit evidence of Mr Davenport it is unlikely that any of the medical witnesses would have considered that the testatrix had capacity in 1993 and insofar as they have doubts about this they would have expressed those doubts in far stronger terms had they known that there were really no facts upon which Mr Davenport's statements in his affidavit were based. I am not satisfied that the requirements for capacity as set out in Banks v Goodfellow [1870] LR 5 QB 549 and followed since have been made out. That is because I am not satisfied the deceased understood the nature and effect of the dispositions in the will and the changes made by it. I consider this lack of understanding was caused by dementia. The medical evidence leads to this conclusion. Insofar as the plaintiffs stated that there was a clear and obvious change in the capacity of the deceased from the beginning of 1994 I do not accept that evidence. 42 It follows from this that the claim for probate of the will dated 4 June 1993 should be dismissed and a grant of probate in solemn form of a copy will dated 26 November 1990 should be made. Due execution of that will was proved through the evidence of Mr Davenport and clear evidence of the destruction of the original will was given; that destruction taking place on the execution of the will dated 4 June 1993. 43 The plaintiffs are entitled to elect whether to take a grant of probate of the 1990 will or renounce. This can be left in the hands of the Registrar. I will hear submissions on costs. Orders will otherwise be made as follows. Orders 44 Order the statement of claim be dismissed. 45 Order that probate in solemn form be granted of a copy of the will of the deceased dated 26 November 1990. 46 Order that it be referred to the Registrar to complete the grant. 47 Exhibits may be returned other than Exhibits A and B. Last Modified: 06/19/2002 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.