New South Wales Court of Appeal CITATION : SHORTEN v SHORTEN [2002] NSWCA 73 FILE NUMBER(S) : CA 40308/01 HEARING DATE(S) : 5 March 2002 JUDGMENT DATE : 5 March 2002 PARTIES : Noel William SHORTEN v Stanley Alexander SHORTEN JUDGMENT OF : Mason P at 1; Meagher JA at 58; Sheller JA at 59 LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 108772/99 FILE NUMBER(S) : LOWER COURT Foster AJ JUDICIAL OFFICER : COUNSEL : Appellant: J R Wilson Respondent: M A Bradford SOLICITORS : Appellant: Harris Wheeler Respondent: Duncan MacLean CATCHWORDS : TESTAMENTARY CAPACITY - knowledge and approval of executed will by testator - application of principles to facts by trial judge - testator suffered a stroke and whether physical and mental consequences adversely affected her capacity - capacity of testator's memory and ability to give clear instructions - executor bore onus of establishing testamentary capacity - if a duly executed will is rational on the face of it there is a rebuttable presumption that the testator had testamentary capacity. (ND) LEGISLATION CITED : CASES CITED: DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40308/01 MASON P MEAGHER JA SHELLER JA Tuesday 5 March 2002 Noel William SHORTEN v Stanley Alexander SHORTEN JUDGMENT 1 MASON P: The deceased, Florence Minnie Shorten, died on 6 February 1999 aged eighty-eight. Foster AJ granted probate in solemn form of her will made on 25 January 1996. He rejected the claim that she lacked testamentary capacity raised by the appellant Noel Shorten who propounded a 1979 will that the 1996 will had revoked, (see Shorten v Shorten [2001] NSWSC 100). 2 The deceased and her husband Harold had four children: Jocelyn (born in 1940), Kevin (born in 1941), Noel (born in 1944) and Stanley (born in 1947). Harold died in 1995 and Kevin died in 2000 after the commencement of the proceedings. 3 The family home in Nundle had been bought by Harold in 1943. Mr and Mrs Shorten ran a smallish grazing business involving their children in various degrees and at different times. Initially it was on a property known as Fernview purchased by Harold in 1952. In 1979 Harold, the deceased and Noel acquired a further property Hillview, holding as tenants in common in equal shares. The three of them operated that property in a partnership called Hillview Pastoral Company. The deceased's 1979 will had appointed the three sons as executors and given her share in Hillview to Noel; her share in the Hillview Pastoral Company partnership to her four children equally; with the residue passing to Stanley, Kevin and Jocelyn. This will was revoked by the 1996 will if it was valid. 4 Foster AJ found that the family reached an understanding in 1979 to the effect that Kevin and Stanley would ultimately receive Fernview and Noel would receive Hillview. Each of the brothers promised the deceased at that time that they would not stand in the way of this plan being implemented. 5 From 1979 onwards there were disputes between the three sons over matters associated with the farming activities and latterly the administration of their father's estate. Each of the four children nevertheless maintained contact with their parents with Noel continuing to live at home. His three siblings married and left the family home at Nundle at different times. 6 The deceased suffered a severe stroke in July 1988. Before that she had been a fit, strong-willed woman who, as well as maintaining a family, played a significant role in running the grazing properties, particularly Hillview. Between November 1988 when she was discharged from Tamworth Base Hospital and her death in 1999 she resided in the Peel Nursing Home in Tamworth. 7 In June 1989 Harold sold Fernview for $185,000. This of course meant that it would not eventually go to Stanley and Kevin as the 1979 arrangement had contemplated. The sale proceeds went into Harold's general expenses including the running of Hillview. 8 Shortly thereafter Harold made a new will leaving his one third interest in Hillview and the Hillview Pastoral Company to Noel. This was to be his last will. In 1994 an adjoining property called St Elmo's was purchased by Noel with $50,000 financial assistance from Harold. Harold also provided $50,000 for the purchase of a new tractor for Hillview. Whether it became Noel's property or that of the Hillview Pastoral Company became a matter of dispute among the brothers after Harold's death. 9 Harold died on 20 June 1995. The three brothers became his executors. Unfortunately there were fights among the brothers lasting until 1996 about the administration of their father's estate, in particular the way that Mrs Shorten's one third interest in Hillview and the partnership were looked after. 10 Harold's will also left a $10,000 legacy to Jocelyn and passed the residue to Stanley and Kevin subject to a life estate in favour of their mother, the deceased. As it turned out there were not enough funds even to pay Jocelyn's legacy and Stanley and Kevin borrowed money to do so. There was associated ill feeling because Stanley and Kevin maintained that the $50,000 advanced by the father to Noel in relation to the purchase of St Elmo's should form part of the father's estate as a debt due from Noel. 11 The upshot of these developments was that the deceased's 1979 will would have passed Hillview to Noel whereas Kevin and Stanley would get little or nothing from the estates of their parents. The deceased's 1996 will which is the subject of these proceedings was a very simple instrument. Its operative clauses were: 1. I hereby revoke all former wills and testamentary dispositions at any time heretofore made by me and declare this to be my last will and testament. 2. I appoint my sons Stanley Alexander Shorten and Kevin John Shorten the executors and Trustees of this my will. 3. I give devise and bequeath all my real and personal property of whatsoever nature and kind and wheresoever situate unto the said Stanley Alexander Shorten and Kevin John Shorten as tenants in common in equal shares. 4. I empower my trustee to sell call in collect and convert into money all or any party of my real and/or personal property (with power to my trustee to postpone the sale, calling in and conversion of any part) at such time or times as my trustee shall think fit by public auction or private contract either together or in lots for cash or on credit or in such other manner as my trustee shall deem expedient." 12 The value of the deceased's estate was approximately $418,000 made up as follows: $300,000 being the estimated one third interest in Hillview, $60,000 being the value of the one third interest in the livestock, plant and equipment of the Hillview Pastoral Company, a $50,000 claim against Noel stemming from the events in his father's lifetime that I have already referred to and practically nothing else. 13 The 1996 will was made in the following circumstances. As indicated already, Kevin and Stanley perceived that Noel was conducting Hillview and the partnership business without due regard to their mother's interests. They were also concerned that as a result of the sale of Fernview by Harold they would miss out on receiving a share of their parent's assets despite the 1979 family arrangement. They approached a local solicitor, Mr Michael McHugh. Mr McHugh spoke to the deceased's general practitioner Dr May. According to Mr McHugh's evidence as accepted by the trial judge, the conversation left Mr McHugh with an understanding that Mrs Shorten, though affected in the language part of her brain, had or probably had sufficient capacity to alter her will and execute a power of attorney. 14 In late November 1995 Stanley took his mother on an outing to Anzac Park, Tamworth. She was in a wheelchair. Stanley's evidence was accepted on matters of importance. Foster AJ's findings about this outing are set out at paras 58-66 of the judgment. 15 Stanley's account of the meeting included the following: I gave her some papers I had with me including my father's will, some bank account papers that showed the money that had been taken out by Noel to purchase the land next door to 'Hillview' and showing that there was very little money left in what had been a joint account conducted by mother and my father at the State Bank as it was then called at West Tamworth. I said something to her to the effect: 'You promised that Kevin and I would get 'The Head of the River' and Noel would get 'Hillview' and as it is Kevin and I have been virtually left with a debt. Dad changed his will - do you want to change yours?' She said vehemently the word: 'Yes.' She then said: 'He promised.' I recall my mother raised with me concerns as to the fact that she could not write with her right hand. She raised it with me by taking hold of her right arm with her good left hand, lifting her right arm up and saying: 'My arm, my arm.' I said to her words to the effect: 'Well I can sign my name with my left hand' and picked up a pen that I had with me and I showed her how I could sign my name with my left hand. She then took the pen in her left hand and signed 'Shorten' that is to say her surname without her initials." 16 Mrs Shorten also told her son that there was a tin containing relevant papers secreted in the family home then occupied by Noel. This turned out to be the fact. The trial judge said this about the tin: This is a matter which, in my opinion, throws considerable light upon her ability to recall and to reason at a time shortly before she had her meeting with Mr O'Halloran. I also accept that in this conversation she evinced considerable determination to change her will. 17 Stanley told Mr McHugh that his mother wanted to make a new will and to give Stanley a power of attorney. 18 Mr McHugh formed the view that he should not take instructions from the deceased and that an independent solicitor should do so. He recommended a local solicitor, Mr Patrick O'Halloran who was very experienced in wills. Mr McHugh contacted Mr O'Halloran and explained matters generally to him. There was a dispute in the evidence about the extent to which details of the proposed will were given, but the trial judge resolved that in favour of the conclusion that Mr O'Halloran was given no information about the deceased's particular testamentary intentions (see judgment par 74). 19 Mr O'Halloran was put on notice that there were questions about Mrs Shorten's legal capacity and that Mr McHugh was leaving it to Mr O'Halloran to form his own view. On 23 January 1996 Mr O'Halloran met the deceased at the nursing home, having been introduced by Stanley. He started by asking questions such as the time of the day, the name of the prime minister and the like. Stanley left. Then over the next one and a half hours or so the solicitor interviewed the old lady alone. He sought and obtained instructions for what became her will. The trial judge found that this was the first time he learnt what she wanted. 20 The trial judge's detailed findings referable to this critical interview are set out at pars 37 and 71-86 of the judgment. They will speak for themselves. I content myself by the following summary of Mr O'Halloran's evidence which the trial judge accepted in substance. (a) The deceased was very slow in her speech, she had difficulty getting words out and on occasions there would be long pauses. (b) Mr O'Halloran came to the view that her mind was clear and that she knew what she wanted. He based this on the preliminary questions as well as the history and the instructions he got from her. In light of this conclusion Mr O'Halloran decided not to involve Dr May. (c) Mrs Shorten explained her testamentary intentions to the following effect which is taken from Mr O'Halloran's notes made at the time: New will to be prepared and the executors and beneficiaries will be her two sons Stan and Kevin - the other son Noel is to be excluded from her new will - the reasons for this are as follows: 1. In the late 1970's she made a will and wanted the rural property 'Fernview' to be given to her other son Noel Shorten. 2. That was her intention in the 1970's. 3. However in the mid-late 1980's after she had a stroke and whilst her husband was alive - Noel persuaded her husband to sell 'Fernview'; the monies were put to an account and some time after Noel arranges with his father to use $40,000.00 approx to buy a tractor himself and also Noel was able to obtain other monies from the sale proceeds totalling $50,000.00 to buy another property for himself. That property was bought by Noel and adjoined the property 'Hillview' (the old Heyman property). 4. Mrs Shorten is therefore of the view that Noel has already his share - in contrast to Stan and Kevin. 5. For these reasons Mrs Shorten wants to exclude her son Noel. Full name Florence Minnie Shorten. Son's full names Stanley Alexander Shorten, Kevin John Shorten. Executors and trustees and beneficiaries - all of her real and personal property to be given to the above in equal shares - p/attorney also to above." (d) the deceased kept on mentioning the sale of 'Fernview' as her concern. She told the solicitor that her husband had been persuaded to sell 'Fernview' by Noel (see par 79 of the judgment) (e) Foster AJ held that although Mr O'Halloran did not recall it, he went armed with some information that enabled cueing or prompting to take place (par 117). 21 The absence of any recorded reference to the daughter Jocelyn in the solicitor's instructions was addressed at trial. It is probably the strongest matter raised by Noel and it is certainly a factor giving cause for anxious inquiry on the testamentary capacity issue. The trial judge said this about it: Reliance was placed by the defendant on the fact that the deceased's daughter Joycelyn was not, apparently, mentioned in the deceased's instructions to Mr O'Halloran. Of course, she may well have been mentioned as being a child of the deceased in the area of the discussion which Mr O'Halloran did not record. However, it is clear that no reasons were given by the deceased for her exclusion from the Will. I have come to the conclusion that this fact does not reflect adversely upon the deceased's testamentary capacity. It is apparent that there was some coolness between the deceased and her daughter, particularly after Harold's death. In her evidence the daughter confirms this. On the occasions when she visited her mother, her mother did not speak to her. She simply remained silent while her daughter tried to converse. This was clearly in contrast to the way she behaved when visited by Stanley and his wife. Moreover, Stanley had raised the subject of Jocelyn, as already indicated, in the Anzac Park discussion, when the deceased had been most dismissive of any further mention of her. I am prepared to infer that the deceased was indicating that, in the context of her making her new Will, she did not propose to make any provision for Joycelyn. Whether or not this was a fair attitude is not to the point. The only question is whether she was capable of recollecting who Joycelyn was and of understanding whether she had a claim upon her bounty. I am satisfied that she was so capable. The evidence also satisfies me that she was capable of making a purposeful decision to exclude her. (See generally Harwood v Baker (1840) 13 ER 117.) 22 Mr O'Halloran could not recall if anything was said by the deceased about her daughter (Black 83). On the other hand, the medical evidence was to the effect that the deceased's capacity to remember matters before the stroke was generally unimpaired. There is really no evidentiary basis for inferring that the deceased was unaware of the existence of her daughter. Jocelyn never suggested as much in her evidence. The deceased obviously thought that the son's claims were superior to those of the daughter in 1996. This is consistent with the substance of the 1979 family arrangement. It is not entirely unknown in testamentary dispositions involving small country estates and people born in the era when the deceased was born. 23 According to the appellant's counsel, we know nothing about Jocelyn's financial circumstances in 1996. At the end of the day we know little to be able to conclude that Foster AJ erred in the manner in which he dealt with the omission of Jocelyn. It is perhaps pertinent to recall that In the estate of Easter v Griffiths (Court of Appeal unreported 7 July 1995), Gleeson CJ wrote: Testamentary capacity is not reserved for people who are wise or fair or reasonable or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community but that does not make the will invalid. 24 Based on the instructions he had obtained from the deceased, Mr O'Halloran prepared the will and a power of attorney and returned two days later. He read out the will, asked the deceased whether it was in accordance with her wishes and she said yes. He handed the will to her and asked her to read it through and she appeared to do so. The solicitor then read the power of attorney and confirmed with the deceased that it accorded with her wishes. The solicitor then called in a nurse and the will was executed, witnessed and attested in accordance with the statutory formalities. Mrs Shorten had difficulty with her signature because her hand was shaking from side to side, so much so that the nurse steadied her hand by touching against the side of it. 25 I interpose to reiterate that the sole issue in the case is the deceased's testamentary capacity in relation to the will which ensued. It is clear and not in dispute that she knew and approved of the will she had executed. 26 The appellant does not suggest that Foster AJ misstated the relevant legal principles concerning testamentary capacity in pars 40-42 of his judgment. The contest in this appeal involves the application of those principles to the particular facts. 27 His Honour addressed the issue by considering first the lay and then the medical evidence. As to the lay evidence he made the findings about the genesis of the will that have been set out above. These include the findings about Stanley's discussion in Anzac Park and the two visits by Mr O'Halloran. 28 The learned judge also made findings based upon Mrs Shorten's capacities as observed by the relatives who visited her. As happens in cases of this nature, some relatives were called by Stanley, the surviving executor, and gave evidence generally supporting testamentary capacity. Others were called by Noel and their evidence at least in part tended to emphasise the difficulties under which the deceased was labouring at the relevant time. Some matters were really common ground and they were stated as follows at pars 44-45 of the judgment: By the time the deceased was admitted to the Peel Nursing Home, her condition had stabilised. Thereafter her lifestyle became that of a nursing home inmate, being cared for as such by the nursing staff of the home, with regular review of her physical condition by Dr May. Her behaviour and levels of ability were the subject of observation on a daily basis by the staff. She was also regularly observed by relatives who visited her. There is no dispute that her ability to communicate was severely impaired because of her condition of expressive dysphasia. Also, her receptive dysphasia necessarily raised doubts as to the degree to which she could understand the spoken word. There appears to be no dispute that her ability to remember events including conversations which preceded the stroke was not impaired by it. It is not suggested that she was in any way demented nor suffering from delusions or hallucinations. She was no doubt frustrated by her inability to express herself as she wished. She was at times irritable and bad tempered. The lay evidence deals with three main areas, namely her ability to understand what was being said to her, her ability to make hers understood and her ability to read written material and understand it. It is convenient to deal with these in order. It is clear that her ability to understand what was said to her depended to a large degree upon the care and patience of the person seeking to communicate with her. I am satisfied, on the evidence, that genuine effort on the part of the communicator would be appreciated and would elicit a corresponding response on the part of the deceased. The reverse would also be true. In this regard, I am satisfied that Noel was not prepared to make the same effort to communicate with his mother as were Stanley, Kevin and Stanley's wife Donna." 29 The trial judge effectively accepted the evidence of Stanley, his wife Donna and Maxine Crossley, a nursing assistant who had regular contact with the deceased at the nursing home. And to the extent that it differed with the evidence of Noel and his witnesses, preferred their evidence. 30 Speaking of the three named witnesses, Foster AJ said at pars 48-9 of the judgment: Those three witnesses were clearly of the view that they could make themselves understood to the deceased, in conversation, provided they took their time and were patient. Responses that they received by word or gesture indicated to them sufficiently that the deceased had comprehended what was being said to her. The deceased's ability to communicate was obviously very limited. I am not satisfied, on the evidence called by the defence, that she was, for practical purposes, limited to the words 'yes' and 'no' which were sometimes used inappropriately. I am satisfied she had an ability to, at least, make small sentences and to convey her meaning by single words and expressive gestures. In my view the following passage from Donna Shorten's affidavit, which I accept, gives a clear picture of the deceased's ability to understand and to communicate. It reads as follows: 11. "Minnie's condition after the stroke was stable for years. She only really deteriorated in the last few months of her life. 12. One of the after effects of the stroke was to give her significant difficulties of communication in that she had a lot of trouble in expressing herself. 13. In my experience of her ability to understand conversation was strong. 14. She would become very frustrated at her inability to express herself and this frustration would be shown by facial expressions, shaking her head, moving her left hand and arm to make gestures of displeasure. 15. Accordingly communicating with Minnie became a matter of getting down to what she wanted to convey. 16. One had to interact with her using step-by-step procedures. 17. Minnie would persist until she was understood. 18. By way of example I recall a matter a few days after the stroke talking to Minnie and finding that she was ill at ease about something she wanted. 19. On that occasion I proceeded by putting to her alternatives until ultimately I was able to understand that what she wanted was her glasses which were in turn inside her black handbag which was at her home in Nundle in her bedroom in a cupboard. 20. If you took time with Minnie you could find out what she wanted to say. 21. There were a number of occasions when she came out to stay with my husband and I and as such I needed to be able to communicate with her to find out what she wanted. 22. I found that if one was to apply ordinary common sense dealings one could get to what it was that Minnie wanted to say. You had to be patient, you had to give her time, you had to be interactive with her. 23. I never had any doubts that Minnie's mind was clear. 24. She was a lady of firm character, she was determined and she knew what she wanted. 32. In communicating with Minnie she could at her very best string together phrases. Her conversation was not limited to mere responses 'yes' and 'no', although mostly that was all she was required to say. 33. The best that Minnie could do was to put together say somewhere of the order of a sentence of about four words. 34. It particularly struck me on a number of occasions that Minnie's recall of other people was unaffected by her stroke. 35. I can recall phrases and sentences of a short nature said by my mother-in-law on different occasions over the years such as: 'want to go home', 'beautiful garden', 'look at that', 'good night'." 31 There was ample lay and medical evidence which his Honour obviously accepted to the effect that the deceased was able to read and understand what she read to some degree (see judgment pars 52-56 and 103). She appeared to read and understand books and magazines. She read and became upset about a particular portion of a document from the Guardianship Board which contained information obtained from Noel to which she took exception (see judgment par 53). His Honour concluded: This lay evidence indicates that the deceased was capable of comprehending words spoken to her in an ordinary conversational way, could read, albeit slowly, and could make herself understood by use of words or short phrases combined with expressive gestures. It required patience on the part of a listener together with care and concentration to obtain the meaning of what the deceased was saying. 32 The deceased also rejected Noel's later attempt to persuade her to make a further will. Noel and his solicitor explained that will to her. She appeared to read it and then indicated by word and gesture that she would have nothing to do with it (see judgment par 56). 33 Finally on the lay evidence, the trial judge's statement that the 1996 will was a simple one bears endorsement. It should be added that its terms are quite understandable in light of the family history in 1979 and following. 34 Foster AJ summarised this aspect of the case in the following terms: As has, no doubt, become apparent, it is my opinion that, absent the medical evidence, the lay evidence, which I have accepted, is sufficient to satisfy me, prima facie, that, on the balance of probabilities, the deceased had testamentary capacity at the time she gave instructions to Mr O'Halloran and at the time she executed her Will. In these circumstances, the question I pose for myself is: does the medical evidence require that I change that opinion? Does it raise doubts as to the validity of the lay evidence such that I should, in the ultimate, not accept it? 35 Medical evidence was given by Dr May, the deceased's general practitioner, and by two specialists, Dr Bell called by Stanley and Ms Bennett called by Noel. The specialists had not seen the deceased. The issue joined between the medical practitioners was directed mainly to the probability of the deceased having responded to Stanley in Anzac Park as he deposed, and having instructed Mr O'Halloran as he deposed. Of course, that probability tended to turn upon the deceased's condition and the lay witnesses were the key observers. None of the doctors suggested that the type of stroke suffered by Mrs Shorten would have clearly incapacitated her at the relevant time. The key symptoms are experienced at different levels of intensity by different people depending on their circumstances. 36 The following aspects of the deceased's medical condition in early 1996 were really common ground: (a) The nature of the deceased's brain damage caused by the stroke was not such as to prevent her remembering matters of significance which had occurred before the stroke (par 93). Thus she was capable of remembering the various properties, the 1979 family arrangement, the contents of her earlier will and what her limited property was. (b) She was capable of forming and indicating views and intentions in a forcible manner if necessary (par 94). (c) The medical condition stemming from Mrs Shorten's stroke was essentially: (i) A right homonymous hemianopea which is a blindness of the right half of the visual fields in both eyes which resulted in severe permanent visual impairment. She would have had difficulty seeing the right side of her surrounding environment. (ii) A severe expressive dysphasia which is an impairment in the expression of speech. Her language would, as the lay witnesses had attested, ordinarily tend to be single words usually concrete expressions with occasional broken sentences. (iii) A relatively less severe receptive dysphasia which is an impairment of understanding of the spoken word. Abstract words and complex information or syntax will be hard to absorb, at least unless conveyed with utmost patience. (iv) The combination of these deficits tended to produce irritability and excessive fatigability. As to the latter, his Honour concluded that the expert view appeared to accord with the factual description given by Mr O'Halloran of the necessary pauses that occurred during his obtaining information from the deceased (par 112). (v) The right hemisphere of the brain was relatively intact. This is concerned with visual perceptual skills, spatial and construction skills, spatial recognition and nonverbal memory. Mrs Shorten's ability to do tapestry and enjoy music was explained by this. 37 Foster AJ did not find the evidence of Dr May to be particularly helpful for reasons set out in paragraphs 95-99. The appellant has not demonstrated error in that regard. 38 His Honour's conclusions concerning Dr May was the subject of particular complaint by the appellant who in the written submissions relied particularly upon the opinion expressed by the doctor in a letter written on about 1 April 1997 to the Guardianship Board. In that letter the doctor stated: I have very grave doubts that Mrs Shorten is capable of giving informed consent for a power of attorney. I do not believe that she is capable of giving informed consent in financial matters. This means that Mrs Shorten can only say yes and no most of the time and that she says yes more often than no. It means that she does not always appear to understand clearly what is asked of her or what is said to her and over the years that I've been caring for her I've often found that she gives the incorrect answer indicating that she has not understood what has been asked. 39 Assuming that this opinion is also reflective of an attitude as at the date of the will over twelve months earlier, I do not read this as destructive of the trial judge's conclusions about the overall impact of Dr May's evidence. I respectfully adopt his Honour's reasons stated at par 97 of the judgment. 40 The two specialists were a high experienced psychiatrist, Dr Bell and a highly qualified clinical neuro-psychologist, Ms Bennett. Each gave opinions based upon medical and nursing records together with the witness affidavits. Each agreed that the stroke had occasioned serious damage located in the right hemisphere of the brain. 41 Foster AJ accepted Dr Bell's evidence to the effect that the deceased retained a restricted ability to read. This was supported by a substantial body of the lay evidence. 42 There were obvious limitations with the expert medical evidence. These stemmed largely from the fact that the exact areas of damage to the left hemisphere had not been the subject of imaging by scanning equipment. This meant that the medical inferences were largely dependent upon the contested lay evidence. The specialists themselves acknowledge this. The critical findings in this part of the case were at pars 114-119 and it is convenient to set them out: 114. Dr Bell was of the view that given time and patience, Stanley's information conveyed in the Anzac Park discussion could have been understood by the deceased despite her brain damage. She could have followed, in the bank statements, the references to payments and could, in general terms, have understood, because of her intact right cerebral hemisphere, what Stanley was explaining to her. It is clear, also, from other evidence to which I have made some reference, that she would have been assisted in this area by her retention of memory of past events. I note, also, in relation to the Anzac Park episode, that, although Ms Bennett had originally expressed the view that the deceased would not have been capable of uttering the phrase "he promised" she later changed her mind, on the basis that, because the situation was emotionally charged, and because the word had been previously used in this discussion, it would have been possible for the deceased to have given expression to it, despite the fact that it conveyed a complex rather than "concrete" idea. 115. The expert evidence in the case does not deflect me from the view that I had formed as to Stanley's veracity and the accuracy of his recollection of what occurred between himself and his mother in the park. Indeed Dr Bell's evidence, which I accept, is supportive of this view. 116. As to the reference to the solicitor in the conversation in the nursing home, I am quite satisfied, on Dr Bell's evidence, that these words or something similar could have been uttered by the deceased and relate back to her expectation, based upon the conversation in the park, that steps would be taken to enable her to change her Will. 117. So far as the interview with Mr O'Halloran is concerned, it is quite obvious that expert evidence must be largely conjectural in the absence of a complete version of the actual conversation. The medical evidence indicated that there would have been quite obvious difficulties involved in the conveying by the deceased to Mr O'Halloran of information, particularly that contained in the third paragraph of his notes. Dr Bell was of the view that, in the circumstances, some cueing would have been very helpful in getting that information. I consider that, although he does not now recollect it, Mr O'Halloran was, more probably than not, armed with some information which would enable cueing to take place. Indeed he spoke of "prompting" in the passage cited above. Dr Bell's evidence, which I accept, in general, supports the view that I have formed, on the basis of Mr O'Halloran's evidence, that, at the end of the lengthy interview he had obtained, one way or another, from the deceased, the information contained in his note. In this regard I have carefully considered the evidence of Ms Bennett to the contrary. If accepted in full it would lead to the conclusion that Mr O'Halloran could not honestly have made the note that he did. I am satisfied that this was not so. 118. I have read and considered, more than once, the expert evidence in the case which was complex and lengthy. It is unnecessary to set it out. I found the evidence of Dr Bell more compelling that that of Ms Bennett, despite her obvious expertise. His evidence was, in my view, both consistent with and supportive of the lay evidence, which I accepted. 119. Accordingly, I am satisfied that when the deceased gave instructions to Mr O'Halloran, she had testamentary capacity and that when she executed her Will, two days later, she knew and approved of its contents. The Will being duly witnessed and attested in accordance with law, I find that the plaintiff has made out his case. He has dispelled the suspicion arising from the circumstances of the deceased's brain damage. The deceased's Will of 25 January 1996 should be admitted to Probate. It follows that the defendant's cross-claim should be dismissed. 43 I pass over his Honour's conclusions on the matter of costs. Suffice it to record that the formal orders ultimately made by his Honour were that probate in solemn form be granted of the deceased's will of 25 January 1996, the cross-claim was dismissed with costs, the plaintiff's costs were ordered to be paid out of the estate of the deceased and to be assessed on an indemnity basis and otherwise there was no order as to costs. 44 The appellant's written submissions do not sit very easily with the grounds of appeal and they were further refined in the helpful and focused oral submissions of Mr Wilson of counsel. I will confine myself to the oral submissions to the extent that I have not already dealt with them in passing. 45 It may be observed at the outset that the appellant does not challenge the trial judge's statements of legal principles concerning the issues facing him. His Honour properly recorded that the executor bore the onus of establishing testamentary capacity. 46 Nor is there any serious challenge to the primary factual conclusions stated in the judgment below. The Court was not invited to overturn the findings that resolved the fairly marginal conflicts between the lay and medical witnesses. These were resolved substantially in favour of the executor's witnesses. Nothing indicates that the trial judge misused his advantage stemming from his observation of witnesses in the hotly contested and fairly lengthy trial. 47 In part, the appellant's submissions turn upon a grievance stemming from the initiative taken by Stanley and Kevin in raising with the deceased their desire that she reconsider her 1979 will and in arranging for the deceased to be presented with the opportunity to do so through Mr McHugh and Mr O'Halloran. But there was nothing legally irregular in this conduct which I would observe was replicated by Noel himself. No issue of undue influence arises or could have arisen on the facts. 48 The appellant seeks to raise what I consider to be minor and technical inconsistencies in the judgment itself (see the appellant's submissions par 49) and minor inconsistencies said to arise within the evidence of Mr O'Halloran (see appellant's submissions par 50). The trial judge was clearly alive to the latter and he addressed them and resolved them in the judgment. As to the former, I read the judgment as arriving ultimately at the view that there was a degree of minor cueing or prompting by Mr O'Halloran in his lengthy interview with the deceased. This does not cast any doubt in my mind upon the essential thrust of his evidence nor does it undermine the trial judge's acceptance of the nub of Mr O'Halloran's evidence which was to the effect that it was the deceased who conveyed and confirmed her particular testamentary instructions and gave Mr O'Halloran her reasons for them. 49 The appellant's complaint that some of Mr O'Halloran's evidence was reconstructive is without any weight. Ample detail was provided and the broad substance is supported by the contemporary note as well as being consistent with the other evidence. The judgment certainly does not turn upon the fallacious logic of concluding that because the solicitor was satisfied as to testamentary capacity the trial judge had to be similarly satisfied. The learned judge probed the underlying facts just as he did in the course of explaining why he had found unhelpful Dr May's broadly negative conclusion as to the bottom line of the deceased's capacity to make a will. The submission that the Court essentially relied upon the opinion of the solicitor must be rejected. 50 The appellant's attack on the findings based on the acceptance of the evidence of Stanley Shorten, Donna Shorten and Maxine Crossley cannot be accepted. The trial judge carefully weighed their evidence and was entitled to prefer it for the reasons he gave. To the limited extent that Noel attacks the 1996 will because of its lack of provision for Jocelyn the matter is sufficiently addressed by par 86 of the judgment and what I have already said. 51 Mr O'Halloran disclosed in cross-examination and re-examination that he had a practice when dealing with aged would be testators. In his oral submissions, counsel for the appellant placed particular reliance upon this evidence which he sought to juxtapose with the evidence as to the deceased's limited communicative abilities. It remains quite unclear as to what the appellant submits flows from this because the deceased's limited ability to speak permitted her to communicate to a degree. The other findings establish that it was to a sufficient degree. The extent to which Mr O'Halloran followed his usual practice which included discussion about the Family Provision Act seems to me to be rather peripheral. 52 Certainly, Foster AJ had a body of additional evidence based upon Mr O'Halloran's actual recollection and his contemporaneous notes. The appellant submits that it would be insufficient to follow the solicitor's usual practice in the case of a person with a speech and other deficits of the deceased. The fallacy in this argument is that it is quite clear that Mr O'Halloran did much more than what he said was his usual practise. For one thing, it is to me inconceivable that he would have spent one and a half hours in the normal run of cases involving simple wills of this nature. 53 The appellant specifically attacks the trial judge's findings about the level of information in Mr O'Halloran's possession before he took instructions from the deceased. We were referred to the evidence of Mr O'Halloran (Blue 49), Stanley (Blue 13), Kevin (Blue 85) and Mr McHugh (Blue 25). Kevin's evidence was in an affidavit and was untested because of his death before the trial. At its highest the evidence as a whole showed that Mr O'Halloran was aware that he was being asked to take instructions about a new will, one effect of which would be to cut Noel out of the estate. Foster AJ was alive to these matters because he addressed them specifically at pars 74, 78 and 117 of the judgment. The learned judge doubted Mr O'Halloran's evidence that he learnt everything about the deceased's testamentary intentions at his meeting with the deceased. To me this seems perfectly obvious but it by no means leads to the wholesale rejection of Mr O'Halloran's evidence that the appellant invites. Part of the acceptance of Mr O'Halloran was the conclusion that he was an honest witness. 54 In conclusion I remind myself of two matters. The first is the essential inquiry as to the matters referred to in the oft cited passage in Banks v Goodfellow (1870) LR 5 QB 549. The second is the presumption that if a duly executed will is rational on the face of it there is a presumption that the testator had testamentary capacity. That presumption is rebuttable of course. And the legal onus remains with the propounding executor. 55 In my view Foster AJ was correct to grant solemn form with respect to the 1996 will. 56 The appellant's challenge to the costs order fails, in my opinion, at the level of failing to establish any error in the exercise of the judicial discretion on the facts of the particular case. His Honour expressed his reasons in a supplementary judgment (Shorten v Shorten [2001] NSWSC 363). However some of the argument raises a question of some importance, since this Court was invited not to follow or alternatively to overrule some of the reasoning in the decision of Perpetual Trustee v Baker [1999] NSWCA 244 in light of a High Court decision in Middlebrook v Middlebrook (1962) 36 ALJR 216. I propose that in that aspect of this Court's decision in the matter, this Court's reasons in the present matter be reserved. 57 Subject to that I propose that the appeal be dismissed with costs. 58 MEAGHER JA: I agree. 59 SHELLER JA: I agree for the reasons given by the President of the orders that he has proposed. 60 MASON P: The orders of the Court therefore are that the appeal is dismissed with costs and the Court reserves its further reasons on the outstanding costs issue. ********** 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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