New South Wales Supreme Court CITATION : Re Estate M.C. Pearce Deceased [2008] NSWSC 1309 HEARING DATE(S) : 14, 24, 25 & 26 November 2008 JUDGMENT DATE : 11 December 2008 JUDGMENT OF : Smart AJ at 1 DECISION : Grant of Probate in solemn form to Kylie Alvaro of the will of M.C. Pearce deceased of 12 October 2001. CATCHWORDS : Grants in solemn form sought of purported will of 9 December 2006 and as to informal will of 7 December 2006 - Deceased aged 98 - loss of cognitive function due to underlying brain disease - Deceased very ill in hospital and close to death - Combined impact of severe physical illness and loss of cognitive impairment - lack of testamentary capacity - circumstances of suspicion surrounding making of informal will and purported will. Banks v Goodfellow (1870) 5 QB 549 CASES CITED : Re Estate of Ethel Gertrude Griffith (Deceased), Easter v Griffith & Ors (Unrep. NSWCA, 7 June 1995) Re Estate of P.F. Hodges Deceased (1988) 14 NSWLR 698 PARTIES : Joan Margaret Brodie v Kylie Alvaro- The Estate of Montague Campbell Pearce Kylie Alvaro v Joan Margaret Brodie-The Estate of Montague Campbell Pearce FILE NUMBER(S) : SC 108563/2008; 101003/2008 COUNSEL : V.R. Gray (J.M. Brodie) J.A.Needham SC (K.Alvaro) SOLICITORS : Proctor Willaws (J.M.Brodie) Hunt & Hunt (K.Alvaro) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST SMART AJ 11 DECEMBER 2008 108563/2008 Joan Margaret Brodie v Kylie Alvaro-The Estate of Montague Campbell Pearce 101003/2008 Kylie Alvaro v Joan Margaret Brodie-The Estate of Montague Campbell Pearce JUDGMENT 1 Mrs Brodie seeks an order that probate in solemn form of the will dated 9 December 2006 of Montague Campbell Pearce deceased be granted to her or that letters of administration in solemn form with the will dated 7 December 2006 of the deceased be granted to her. Mrs Alvaro challenges both wills on the ground that the late Mr Pearce, then aged 98 and in hospital with a major bleeding problem, lacked testamentary capacity. He died on 10 December 2006 in hospital. Under the documents of 7 and 9 December 2006 the deceased's estate was divided in one sixth shares amongst his daughter, Mrs Brodie, grandchildren, namely, Kathryn Margaret Brodie, Fiona Brodie and Malcolm Andrew Brodie (the children of David Brodie deceased and Joan Margaret Brodie and three of the deceased's grandchildren), Mrs Kylie Alvaro and Rodney Le Lievre (the children of Beverley Ann Le Lievre deceased the younger daughter of M. C Pearce deceased). 2 Mrs Alvaro, by her amended cross claim sought an order that probate in solemn form of the will dated 12 October 2001 of the deceased be granted to her with leave to Mrs Brodie to come in and prove the will. Under this will the deceased's estate was divided equally between Mrs Margaret Joan Brodie and Kylie Alvaro. The effect of the December 2006 documents was to reduce the share of the estate of Mrs Alvaro and of Mrs Brodie from one half to one sixth. Mrs Brodie and her 3 children appeared to be a close knit family group. Mrs Alvaro and her brother Rodney who has lived in Tasmania for about 14 years did not appear to be close. 3 Mr and Mrs Winton on 9 December 2006 witnessed what purported to be the deceased's last will when he signed a document bearing that date. That document bears the hallmarks of a formally executed will. Prior to that, on 7 December 2006 the deceased signed a document but it was not witnessed. It could be described as an informal will. Early Background 4 For many years prior to his retirement about 1988 the late Mr Pearce had successfully ran the affairs of his company. He was a qualified accountant. He was deeply attached to his wife. For some years he was at odds with Mrs Brodie. After his wife died in June 1997, Mrs Brodie said she saw much more of her father and visited him at his town house in Wollstonecraft. From the tenor of her letter of December 1997 to her father and his reply it is probable that the re-establishment of a relationship occurred later than January 1998. Mrs Alvaro said that Mrs J. Brodie had little to do with the deceased before her mother Beverley died in 2001 (or possibly 2000) but afterwards she began to spend time with him. That is probably substantially correct although the beginning of the closer relationship between the deceased and Mrs Brodie may have started in 2000. Mrs J. Brodie said that she organised at first a Home Delivery Meal Service and subsequently Meals on Wheels. She said that after her mother died he became interested in shares. She said that from 2000 she got a lot closer to her father and did more for him. 5 In her affidavit of 26 April 2007 Mrs J. Brodie said that her father was a beneficiary under the will of his late brother Cecil, that about February 2006 he asked her to take him to see a nominated solicitor to prepare a new will and said to her " I am minded to change my Will as my brother, Cecil divided the residue of his estate between all his grandchildren and daughter-in-law as his son had died some years ago". Because of other commitments Mrs Brodie declined. Her father accepted this and decided the matter could wait. 6 In early July 2006 the deceased broke his hip and was admitted to Royal North Shore Hospital on 4 July 2006. After an operation he was discharged on 12 July 2006 to Hirondelle Private Hospital for rehabilitation. He remained there for about three weeks and then went to a hostel, Archbold House at Roseville. That provided respite care and he had physiotherapy there. Subsequently, the deceased resided there on a permanent basis. Mrs Brodie, who lived at Gordon, said that she visited her father six times per week at Archbold House. She said that her children visited the deceased more frequently when he was in Archbold House. 7 Mrs J.M. Brodie had a difficult year in 2006. As well as the illness of her father she was not well and her husband was ill and dying. Her husband died in October 2006. She said that some days after her husband's funeral she had a conversation with her father at her home. She stated that he said that he would like to give her his townhouse at Wollstonecraft. She said that she responded that her husband had provided well for her and that she would like to stay in her home. She said that during this conversation her father said that he would like to prepare his own will and that she then gave her father a spare "Prepare Your Own Legal Will" pack that she had at home. She said that later that evening her father telephoned her and said "I have started to prepare the will but I am unsure who to appoint as executors". 8 Mrs Kathryn M. Brodie, in her affidavit of 2 May 2007 said that during the four years before the deceased's death she lived at North Sydney and that she and her two children spent time with the deceased during the week. Their discussions included her children, the share market and Tiger word puzzles. Mrs K.M. Brodie said that when the deceased went to Archbold House she visited him at least twice per week. 9 Mrs Fiona Brodie said that while the deceased was living at Wollstonecraft she lived on the Central Coast. She saw him about once per month, possibly a little more frequently. She spoke to him on the telephone about once per month. When he moved to Archbold House she saw him probably once every couple of weeks. 10 Mr M. A. Brodie said he saw his grandfather about quarterly before his grandmother died and that he saw a lot more of his grandfather after that. During the first half of 2006 Mr Brodie saw his grandfather about every three weeks. After his grandfather went to Archbold House Mr Brodie saw him every two to three weeks. 11 Mr Brodie said his grandfather talked about his cousin Rodney and asked how he was going both at his Wollstonecraft town house and at Archbold House. Mr Brodie had no contact with Rodney. 12 Mr Brodie said that about six months before December 2006 his grandfather raised on two occasions that he wanted to change his will. Mr Brodie declined to discuss the topic. 13 Mrs Kylie Alvaro said that her mother Beverley Ann Le Lievre, died in December 2001. There is some material that it was in late 2000. That would better explain the will of October 2001. 14 In her affidavit Mrs Alvaro said that the deceased had been a father figure to her for 21 years prior to his death and that her father, Dr Ron Le Lievre, suffered from a severe frontal lobe disorder which meant that he and she could not be close. As a consequence she, her grandfather and grandmother became very close. She considered her grandfather as her father and they visited each other often. She said that after her mother died in 2001 her grandfather became her family as he was all that she had left from her mother's side. She said that she telephoned her grandfather every day until he was admitted to Archbold House. She said that after he changed his will in 2001 he asked her many times what she would do with her half share of the estate and on several occasions suggested that she buy Joan's half of the townhouse for Mrs Alvaro's two daughters. Her grandfather remarked that Joan (Mrs J. Brodie) would not be happy that she (Mrs K. Alvaro) would be inheriting half his estate. 15 Mr Ruben Alvaro, the husband of Kylie Alvaro, stated that when the deceased lived at Wollstonecraft they (the Alavaros) visited him regularly. The deceased repeated that the shares he held in NAB and Bendigo Bank were good. He also talked about the shares he held in a building company, his breakfast, lunch and dinner menu for the week and his physical problems. These conversations filled their visits frequently. The deceased often commented upon Mrs J.M. Brodie. Mr Alvaro detailed a number of remarks which he said were made by the deceased as to the poor conduct of Rodney. Most of those remarks about Rodney attributed to the deceased appear to have been made before the death of his daughter, Beverley. 16 Mr Alavaro said that over about the last 2 to 3 years of the deceased's life (2004-2006) and up to about a month before his death the deceased often asked his wife (Kylie) what she intended to do with her 50% of the inheritance. She responded that they would like to buy real estate for her daughters and her father conveyed his approval. Mr Alvaro said that at no time did the deceased indicate to him that he (the deceased) intended to change his will. 17 The letter sent by Mrs J.M. Brodie in late December 1997 to her father and his reply reveal that at that time and for some years previously relations between Mrs J. Brodie and her father were very strained. Mrs J.M. Brodie stated that about four months before her mother's death they had had a falling out. Mrs J. Brodie believed that her parents, especially her deceased mother had tended to favour her sister Beverley. Both her parents were supportive of Beverley in the difficulties she faced arising out of her husband's serious illness. It was Mrs Brodie's case that while there had been difficulties in the past these had been a rapprochement by no later than 2000 and that by 2006 she and her father had a good relationship. 18 The Alvaros and Mrs J.M. Brodie spoke of the estranged relationship between the deceased and Rodney Le Lievre. Apparently this primarily came about when Rodney took his father, Dr Ron Lievre, away from his wife Beverley and on a trip to various places in New South Wales and Victoria and ultimately to Tasmania and away from the deceased, the wife of the deceased and Beverley. 19 The grandfather's letter of 29 August 1998 to Rodney Le Lievre reveals a high degree of estrangement and that the grandfather was disappointed (or disgusted) at what he believed was Rodney's wrongful behaviour. 20 Mrs Alvaro detailed various complaints made by her grandfather to her about Rodney and his behaviour. Mrs Alvaro stated that their grandfather never forgave Rodney, that he never came to see their grandfather and that they remained unreconciled when their grandfather died. 21 Mrs J. M. Brodie said that in 2002 she accompanied her husband who had been very ill on a trip to Tasmania. While at Deloraine her husband became ill again. Mrs Brodie telephoned Rodney. He came to Deloraine organised doctors and made other arrangements for them and, when her husband recovered, Rodney took them back up to his farm in the mountains. She said that when she and her husband returned to Sydney he told her father, "what a nice young man Rodney was, how he'd settled down and about his new partner and the farm and how he was growing garlic and herbs, things that my father had been interested in when Rodney had worked for him". Mrs J.M. Brodie was aware that some letters between Rodney and her father were sent back unopened. 22 Mrs J.M. Brodie said that her father never came to terms prior to her sister's death with the removal of Dr Le Lievre from Sydney. She added: "...but then after 2002 I was in contact. Rodney used to ring up and a mutual friend of ours used to ring up and I'd always tell my father what Rodney was up to. He had a couple of children. Dad was very interested in the children". 23 To Mrs Brodie's knowledge her father never spoke to Rodney directly. She said that they both had too much pride. 24 Mrs Brodie agreed that her father and Mrs Alvaro had a close relationship until the last year of his life. After that they were not as close. 25 The deceased's will of October 2001 was rational. He left half his estate to his daughter, Mrs J. Brodie and half to Mrs Alvaro. The latter had a very close relationship to the deceased and received the half share her mother might have been expected to receive if she had lived. Rodney and the deceased were estranged at that point. 26 Despite the fact that Rodney and the deceased had not formally reconciled there was material on which the deceased could have decided that he wanted to include Rodney amongst his beneficiaries. He could also have rationally decided that he wanted to benefit all his grandchildren and overlook what he considered to be past failings. Forgiveness was not out of the question. He may have thought that it was best not to perpetuate grievances from long ago. I thought that the informal disposition of 7 December 2006 and the terms of the document of 9 December 2006 purporting to be a will were rational dispositions of the grandfather's estate. While Mrs Alvaro relied upon the inclusion of Rodney as a beneficiary under the December 2006 documents I did not think that this was any indication of irrationality and the deceased not being able to weigh correctly the competing claims on his bounty. I appreciated Mrs Alvaro's point that under the earlier will she was, in effect, being left her mother's share. It was rational for the deceased to decide to benefit all his grandchildren equally and to leave his daughter a one sixth share of his estate. She had told him that her husband had provided for her and she did not want the town house. 4-10 December 2006 27 On 4 December 2006 the deceased's condition deteriorated and he was transferred from Archbold House to Royal North Shore Hospital just before 2am. The transfer notes at Archbold House record that Mrs Brodie noticed her father was pale yesterday. 28 The Assessment at 04:30 on 4 December 2006 at Royal North Shore Hospital records: "Found on floor post fall overnight ? length of time. Patient states has full recollection of events, no loss of consciousness. States he had (illegible) pain and was in the bathroom. On arrival alert, v.pale. IV fluids from (illegible)..." At 05:40 it is recorded: "Patient alert and very pale...Initially hypotensive has improved with IVF....Daughter present, awaiting blood for transfusion". At 08:15 it is recorded: "...Remains shaky and unsteady...Blood transfusion in progress". At 11:00 it is recorded: "Blood transfusion completed. Seen by team for gastro endoscopy " . It appears that an endoscopy was performed that afternoon. 29 There are detailed notes of the deceased's condition and progress during 5 December 2006. At 1450 hours he was described as alert and orientated and that he was on the first unit (of blood). At 2025 it is recorded that the deceased had received "2 units of P cells" and "BOx1 this shift, blood present -small amount". 30 At 03:10 on 6 December 2006 it is recorded: "Patient has not experienced any PR bleeding overnight. Tolerating clear fluids". 31 At 14:30 on 6 December 2006 it is recorded: "For discharge home to hostel if Hb is in adequate range, waiting for results from Dr." It is further recorded: "AMB Booked from 8am-Webster pack ordered". 32 At 07:40 on 7 December 2006 the transport was cancelled. There had been a marked deterioration in the deceased's condition. The explanatory but retrospective entry explaining what had happened reads in part: "Patient found collapsed trying to go to bathroom at 0735. Short loss of consciousness but quickly regained. At 0745 patient vomited 300-400 mis fresh blood and clots... 0747- BP 90/50 P. 85 Desat + 90% 02H mask applied. … BP recovered to 140/70 by 0810. T/F to endoscopy at 0900. Family called and arrived at 0820. Stable since RTW 1st unit P.C. completed 2nd unit in progress" Dr Barrett has recorded at 08:00 that the deceased was vomiting blood. He had apparently consulted with Dr Riley, the specialist. It is recorded: "Palliative management with no further endoscopy. … In the event of cardio respiratory arrest Mr Pearce is not for cardiopulmonary resuscitation . He is for palliative management with all attention directed towards comfort and dignity" 33 These entries accord with Mrs Brodie's evidence that about 8am on 7 December 2006 Dr Barrett had telephoned her and advised that her father had had a big bleed and was very low. He suggested that she come to the hospital. She caused her children and Kylie Alvaro to be notified. Mrs Brodie said she arrived at the endoscopy ward about 8:15am and found her father sitting up in his bed and looking quite alert. She then conversed with the deceased and told him that his grandchildren would probably be on their way to the hospital. Mrs Brodie said that her daughter Kathy arrived a short time later and joked with the deceased. Mrs Brodie said that he told them that he was going to have another procedure to try and stop the bleeding and that a new doctor would do it. According to Mrs Brodie the deceased continued: "I want to finish the changes to my will before anything further happens and since David's will was okay I will do the same now". 34 Mrs Brodie said that her father then asked a nurse if she would witness the will when it was written out. The nurse said she would have to check with her senior and left the room. 35 Mrs Brodie stated that her father said, "I am going to divide my estate between all equally since Joan does not want the townhouse. Joan can you get some paper from my bedside drawer and write out a new will. I want it to say 'I revoke all other wills and leave my estate to be divided equally between Joan and each of my grandchildren'. Mrs Brodie said that she then wrote out in her handwriting the Will her father had dictated. Mrs Brodie said that she handed the Will to her father, that the nurse returned and explained that it was hospital policy not to witness wills. Mrs Brodie said that her father found his glasses, -read the Will and said, "You have not written everyone's names out individually. I shall sign this anyway and trust that my wishes will be respected". Mrs Brodie states that Kathy said to the deceased , "There will be plenty of time to do a proper Will when you get out of hospital". Mrs Brodie said that her father said to her "Please bring down the black folder from the locked drawer in my room at Archbold House..." 36 Mr Brodie said that a nurse then entered the ward and asked her father if he knew what was going to be done. She stated that he said that he did and said "I will sign the consent form before I take my glasses off. He did so and was wheeled out of the ward to go to the procedure room. Mrs Brodie stated that she and Kathy left the ward and saw Kylie and Ruben Alvaro arrive. Mrs Brodie stated that her daughter Fiona arrived. Mrs Brodie stated that she said to Kylie Alvaro, "Gramps wanted to change his Will. Kathy and I said he could do it later when he got out of hospital but he was serious about wanting to do it. He did it then and there". 37 I return to the Hospital Notes. Dr Pattullo, a Registrar has noted that she reviewed the deceased at 0:830am on 7 December 2006. She has written: "JLOC/ unrouseable this am 2° to recurrent G/bleed/haematenesis/ 300m1 Responded' BP & LOC to Gelofusion Imp recurrent DV bleed Good recovery....IV fluid gentle resus Plan P/W Dr Riley -* would be reasonable to rpt endoscopy this am as patient has had good recovery by IVT -> pt consents - NOK (Joan-daughter) aware & understands rationale Patient ... NFR/Not for ICU as documented previously" 38 While it is not entirely clear it seems that the 'Will' of 7 December 2006 was probably made after Dr Pattullo's review and before the further endoscopy was carried out by Dr Norton. 39 After the endoscopy was performed (probably about 10am) the deceased was transferred to the Recovery Room about 10:15 and subsequently to the ward about 10:45am according to the notes. 40 Mrs K. M. Brodie said that on 7 December 2006 she arrived at the Hospital about gam and found her grandfather sitting up in bed chatting. She stated that he said that he would need another procedure to see if the bleeding could be controlled and that he had agreed to this. She stated that he said to her "I want to change my Will and I am aware that it must be witnessed. I want to divide my estate equally between your mother, you, Malcolm, Fiona, Kylie and Rodney". Mrs K.M. Brodie said that her grandfather then said to her mother "please write out a statement for me reflecting this". Mrs K.M. Brodie said that once her mother had written the statement out her grandfather asked a nurse if she could sign it and she told him it was against hospital policy for staff to witness wills. Mrs K.M. Brodie said she told her grandfather not to worry about the will, that everything would be fine and that he could arrange for a formal Will when he got out of hospital. 41 In cross examination she said that he could write but it was not easy for him as he had arthritis and an intravenous drip in his arm; it was not pain free for him. 42 Mrs K.M. Brodie said that she was aware that her grandfather had a will form at Archbold House and that he asked her mother to bring that to the hospital. 43 While there are some differences in the details the evidence of Mrs K.M. Brodie was to the same general effect as that of Mrs J.M. Brodie. I do not regard the differences as significant. 44 Ms F.E. Brodie said that she arrived at the Hospital about 11am, having travelled from the Central Coast. She said that her mother, her sister Kathy and her brother Malcolm were there. She is mistaken that Malcolm was there. She is also mistaken in saying that the Alvaros arrived shortly after she did. She said that her grandfather was wheeled back to the ward and looked a little uncomfortable and groggy. He told her that he was quite hungry and that the nurses had not let him eat anything. Kylie Alvaro was there too. 45 Ms F.E. Brodie returned to her grandfather's ward about 12:30pm. She spoke with him for about half an hour. She did not detect anything abnormal or that he did not comprehend everything that was said. 46 Mr Malcolm Brodie did not give evidence of visiting his grandfather at the Hospital on 7 December 2006. 47 Mrs Alvaro said that on 7 December 2006 she and her husband arrived at the Hospital just before her grandfather was wheeled away to the procedure room. 48 Mrs Alvaro denied that Mrs J. Brodie mentioned to her in the waiting room anything about her grandfather's Will. Mrs Alvaro said that later in the day Ruben and she went back to the ward. J.M. Brodie and K.M. Brodie were sitting beside the deceased who was asleep. It was then, Mrs Alvaro said that they told her that the deceased had changed his will. Mrs Alvaro said that she did not reply. She stroked her grandfather's face and spoke to him. He did not respond. 49 Mr Ruben Alvaro corroborated his wife's evidence. 50 I will not summarise what was said and done by J.M. Brodie, K.M Brodie, M.A Brodie and K. Alvaro and the deceased on 8 December 2006 although I have noted what each has said. Mrs J.M. Brodie said that on leaving the Hospital she went to Archbold House to collect the Will form. The evidence of Mr M.A. Brodie as to his visit to the deceased about 6pm on 8 December 2006 was to the effect that the deceased was not well. 51 Mr M. A. Brodie stated that he returned to the Hospital about 7:20am on 9 December 2006. His grandfather was in bed and awake. Mr Brodie said that his grandfather looked well, was alert and said to him, "I had a good night's sleep. I still want to change my will". Mr Brodie said that he replied, "I do not want to be involved in that, Gramps". Mr Brodie said that the deceased commented that Mrs J. M. Brodie had been very good to him. 52 Mr Brodie said that his mother arrived a few minutes later and that he (M.A. Brodie) left the hospital about 7:55am. 53 Mrs J.M. Brodie stated that she arrived at the hospital about gam and that her son Malcolm and grandson Nicholas were already there. Her father told Nicholas not to pull on the tubes. After some discussion about other matters Mrs J.M. Brodie stated that her father asked about the black folder. After a toilet intervention her father said "I want to complete the will I started a few weeks ago. I want to make sure it is legal. I need two witnesses to my signature". Mrs Brodie said that her son and Nicholas left. 54 Mrs J.M. Brodie stated that her father opened the black folder and said, "Please take out the envelope from the 'hidden section' at the back as well as the will kit from that I started some weeks earlier". She stated that she took out the envelope and the will kit and handed her father the envelope. Inside was a copy of his 2001 will. He commented, according to her, that he should have resolved this matter years ago. After accessing his informal will of 7 December 2006 which he had kept she said that her father opened up the will kit. 55 Mrs J.M. Brodie asserted that her father commented that he only got as far as the Executors before and decided that they should be as previously. She said that he then asked her to help him complete the form and to "write out the proper names and addresses for each grandchild, Kylie Alvaro, Rodney Le Lievre, Malcolm Brodie, Kathy-what is her married name?" Mrs Brodie stated that she said, "Both Kathy and Fiona kept their maiden names when they married, " that her father replied that he remembered, that he did not know Rodney and Fiona's latest addresses. Mrs J.M. Brodie said she supplied these details and filled in the names and suburbs and that after reading the completed will her father said "That looks right". Mrs Brodie said that her father asked her to telephone Margaret Lock and Gai Winton and ask them to come in to witness his signature. Mrs J. Brodie said that she waited until Malcolm and Nicholas returned about 11am and borrowed Malcolm's phone. Mrs Lock was not available and her father agreed with her suggestion that maybe Tony Winton could come with Gai Winton and be his witnesses. Mrs J. Brodie then telephoned Gai Winton and arranged for her and her husband to come and witness her father's will. 56 Mr Malcolm Brodie said that he returned to the hospital about 11.45am with Nicholas, that they were in the waiting room with his mother (Mrs J. Brodie) that Gai and Tony Winton arrived a short time later and that they chatted to Gai and Tony and then his mother. Mr M. Brodie said that Nicholas and he went to the hospital cafe. Mr M. Brodie was aware that Tony and Gai Winton had seen his grandfather . Mr M. Brodie said that he knew that his grandfather was amending his will. Mr M. Brodie saw his grandfather again. He gave his grandson a strong handshake and also shook the hand of his great grandson. The grandfather remarked " I don't think I will be coming over at Christmas". Mr Brodie said he left the hospital about 1:00pm. It was probably about the time the Wintons left and after they had witnessed the deceased sign the purported will. 57 Mrs J. Brodie spoke of her father reading the paper, checking the share prices and starting on the target puzzle. She took Nicholas to the toilet and returned to the waiting room near her father's ward. She stated that she greeted Gai and Tony Winton , handed Tony the will kit and said "This is Dad's latest will. He wants witnesses this time when he signs it". Mrs J. Brodie said that Gai and Tony went into her father's ward while Malcolm, Nicholas and she remained in the waiting room and that after about twenty minutes Gai and Tony returned and Tony handed her the will kit which she put back into her shopping bag. She said that Gai and Tony then left the hospital as did Malcolm. Mrs J. Brodie said that she returned to her father's ward about an hour later and that he was sleeping. When he awoke he conversed with Ms K. Brodie who had joined her mother. About 4:30pm her father deteriorated further. Mrs J. Brodie had Mrs K. Brodie telephone Mr M. Brodie and Mrs K. Alvaro, both of whom came to the hospital. The deceased died the following morning. 58 Mr and Mrs Winton gave their address as 37 Congewoi Road, Mosman. Both appeared to be physically frail and elderly. They arrived at the hospital within a short time of being called. 59 Mr Winton had sworn two affidavits. He had known the deceased since 1965 and had seen him about once or twice a year. He could not remember when he had seen the deceased prior to 9 December 2006 and whether he (Winton) had seen the deceased in 2006. Mr Winton had last seen the deceased at his home in Wollstonecraft. The deceased was his wife's friend more than his. 60 Mr Winton said that about 11am on 9 December 2006 his wife received a telephone call from Mrs J. Brodie who asked if they would come to the Royal North Shore Hospital to witness the deceased's new will. He said that they arrived at the hospital between noon and 12.15pm, greeted Mrs J. Brodie, Malcolm Brodie and Nicholas in the waiting room and entered the deceased's ward. 61 Mr Winton stated that the deceased was in bed dressed in a hospital gown with a drip stand near his bed and a needle in his arm, that in response tothe enquiry of the attending nurse the deceased, in a clear voice asked for some ice to suck. Mr Winton stated that the deceased said "Hello Tony. How are you?", that they shook hands, that the deceased's grip was firm and that the deceased enquired: "How are the Atlas shares that I recommended you buy in December 2005?" 62 Mr Winton said that he replied, "They are performing well". They discussed the recent Wallaby tour and the games against Wales and Scotland. Mr Winton said that the deceased quoted the scores. As the nurse had not returned with the ice Mrs Winton went to obtain some, returning with the ice about five minutes later. In the intervening period Mr Winton said he had a general conversation with the deceased. 63 Mr Winton stated when a nurse came into the ward with a new bag of blood for the deceased, he (Winton) and his wife returned to the visitor waiting room. Mr Winton said that Mrs J. Brodie, Malcolm Brodie and Nicholas were still in the waiting room. Mr Winton said in his first affidavit of 26 April 2007 that Mrs J. Brodie said to him "This is Dad's new will which he would like you and Gai to witness". In his later affidavit of 29 February 2008 Mr Winton said that Mrs J. Brodie handed Gai Winton a 'Prepare your Own Will' pack and said, "This is dad's new will. He would like you both to witness". 64 Mr Winton said that his wife and he returned to the deceased's ward. In his earlier affidavit Mr Winton stated that he said to the deceased, "This is your will" and that the deceased replied, "Where do I sign?" Mr Winton stated that he folded the will so the deceased had a hard surface to sign on, that the deceased signed it and Gai Winton and he witnessed it. Mr Winton said that they left the hospital about 1:30pm. 65 In his later affidavit Mr Winton stated that his wife gave him the will pack and that he unfolded it so that the deceased could see it. Mr Winton stated that he could see that the will had two sides to it, that he showed the deceased the front side and then the back and that the deceased appeared to read it. Mr Winton stated that he said to the deceased: "Is this your will?" that the deceased looked at it and said, "Yes where do I sign?" Mr Winton said that as there was no tray or hard surface to lean on, he folded the will so that the will was supported by the hard will pack cover and said to the deceased, "You sign here". Mr Winton stated that he pointed to the signature line, that he gave the deceased a pen. and the deceased signed the will where Mr Winton had indicated. Mr Winton and his wife then signed as witnesses to the deceased's signature and printed their names and addresses. Mr Winton then picked up the will. 66 Mr Winton stated that the deceased said, "The contents of this new will is different to my previous will". No details were given or sought. Mr Winton stated that there was come conversation about the ward and the good view it had, that a nurse came to check on the deceased, that they accordingly said goodbye to the deceased and returned to the visitor waiting room where he handed the will to Mrs J. M. Brodie. 67 Mr Winton said that although when he saw the deceased on 9 December 2006 the deceased was physically unwell his demeanour appeared no different to when he had seen him on previous occasions. In his later affidavit Mr Winton said that he did not need to raise his voice or speak slowly during the conversations with the deceased. Mr Winton said that at no time did .the deceased appear to be confused, disorientated or aggressive. There was nothing out of place in the deceased's conversation and nothing which he could not understand. The deceased did not need anything repeated. The deceased did not get out of bed while he was there. 68 In cross-examination Mr Winton said that when he saw the deceased on 9 December 2006 he could not tell if the deceased was very frail physically. Mr Winton said that when he visited the deceased at his home in Wollstonecraft they discussed shares and rugby. The deceased did not speak about his family or the contents of his will. 69 Mr Winton said that his best recollection in April 2007 was that he said to the deceased "this is your will" and he replied "where do I sign?" Mr Winton said that as time went by he thought more about the episode on 9 December 2006. When asked about his first affidavit and the words which he deposed to saying, namely "this is your will" Mr Winton replied "Well it must be a mistake". He said, "Because I asked him 'is this your will'. My wife handed me the will, and I said 'is this your will". 70 Mr Winton agreed that the deceased said nothing to him (Winton) about what was in the will or why he was changing it. 71 Mrs Diane Gai Winton also swore affidavits on 26 April 2007 and 29 February 2008. She had known the deceased since 1958. He was a very good friend. It was mostly after the deceased's wife died that she visited the deceased, and then probably three to four times per year. They also spoke on the telephone. Her husband visited less often. She and the deceased shared an interest in the stockmarket and he gave her good advice. The sharemarket was a constant source of conversation. He had an interest in puzzles. She knew that he had his shopping done by a care agency in the last year or so. 72 Mrs Winton visited the deceased in hospital on 5 December 2006. She had been walking with Mrs J. M. Brodie who had told her that the deceased was in hospital. Mrs Winton said that the deceased was pleased to see her and told her that he had been bleeding. She confirmed that Joan had telephoned her about 11am and that she and her husband arrived at the hospital between noon and 12.15pm on 9 December 2006. 73 In her earlier affidavit Mrs Winton confirmed that, after seeing Mrs J. M. Brodie, Malcolm Brodie and Nicholas, she and her husband went into the ward to see the deceased. After expressing his pleasure at seeing them both, the deceased said, " I am having an awful time". In response to his request she obtained some ice for him. She said that her husband and she returned to the visitor's lounge when a nurse came in with some blood for the deceased. They chatted with Mrs J. M. Brodie who gave Mr Winton the deceased's new will. Mrs Winton said that she and her husband went back into the deceased's room about 1:00pm. Mrs Winton stated that she said to the deceased, "This is your new will and we have come to witness it for you. Do you want us to witness it". Mrs Winton stated that the deceased replied, "This is what I want". She said that the deceased signed the will and her husband and she witnessed it. She said that after the will was signed her husband and she stayed with the deceased for about ten minutes chatting generally. 74 Mrs Winton stated that although the deceased was physically unwell when she saw him on 5 and 9 December 2006, mentally he appeared no different to when she had seen him on previous occasions, that is, on those occasions when she visited him at Wollstonecraft. Mrs Winton's later affidavit follows the terms of her husband's later affidavit. She said that when they were in the visitor waiting room on 9 December 2006 Mrs J.M. Brodie handed her a "Prepare Your Own Will" pack and said to her "This is Dad's new will. He said he would like you both to witness his signature". Mrs Winton stated that she and her husband returned to the deceased's room and she handed the will pack to her husband who unfolded it and showed the deceased two sides of the will and said to him, "Is this your will?" Mrs Winton said that the deceased looked at it and while her husband held it, appeared to read it. Mrs Winton stated that the deceased then replied, "Yes. Where do I sign?" Mrs Winton stated that she said to the deceased, "Do you want us to witness your will?" She stated that he replied. "Yes. This is what I want". Mrs Winton said that she saw the deceased sign his name. She and her husband then signed the will as witnesses. 75 She confirmed the remaining details of the visit as stated by her husband. 76 In cross-examination Mrs Winton said that she visited the deceased about every two weeks while he was in Archbold House. 77 Mrs Winton could not remember if the deceased was wearing glasses when he signed the will on 9 December 2006. Mrs Winton was aware that the deceased has a hearing defect. She did not speak loudly and clearly to get him to hear. Sometimes he asked her to repeat something. After a hip operation he used a walking frame. 78 Mrs Winton said that they were telephoned by the solicitors and told that the will was being contested. She said that after this telephone call she discussed with her husband what had happened. She said that she found it very hard to remember what happened on 9 December 2006. She had forgotten that there was a separate earlier affidavit. 79 Mrs Winton was asked about the versions she had given, namely, that she had said in her earlier affidavit to the deceased "this is your new will and we have come to witness it for you" and that in her later affidavit where she said that her husband said to the deceased "is this your will?" Mrs Winton replied, "I think I used the word 'we' because we both walked into the room together. I can't remember who said what". I doubt that Mrs Winton was able to deal with the point being made in the questions of the cross examiner. 80 When it was pointed out what she had said in her earlier affidavit and that she altered the words earlier quoted as used by her she replied, "Yes, well it might not be correct. When Mrs Winton's attention was drawn to the words she attributed to her husband in the second affidavit she responded, "Yes my husband did handle the will". She also claimed that she remembered that the deceased said yes, that he wanted to sign the will. She said that she and her husband each asked the deceased if he wanted to sign the will. She said neither her husband nor she asked the deceased about what was in the will. 81 Mrs Winton said that the deceased had never mentioned that he was thinking of changing his will. 82 Mrs Winton said that the conversation she had with the deceased after he signed the will was more about how he was feeling. She and her husband knew that he was not well and that he was haemorrhaging. The conversation was general conversation about what has happening to him at the moment. 83 During Mrs Winton's evidence she gave the impression and said that she was having difficulty in remembering what had happened. Her husband was sitting in Court directly opposite her. On one occasion he had to be reminded not to supply an answer to a question she was asked. She looked to him for assistance while giving her evidence as was obvious to all in Court. She struggled to try and remember what happened when the will was signed and had no real recollection. It was beyond her. She has to rely on the prompting of others. I think that her better memory is probably contained in her first affidavit of April 2007 when events were fresher in her memory. She was the close friend of the deceased and knew Mrs J. M. Brodie. On 5 December 2006 they had been walking together. 84 Both Mr and Mrs Winton were strong supporters of Mrs J. Brodie. Mrs Winton found giving evidence oppressive. From 5-9 December 2006 she was disturbed at the poor condition of the deceased. While Mr Winton struck me as having a better command of his faculties than his wife, Mrs Winton was much closer to the deceased and Mrs Brodie and it would have been natural for her to be handed the will and to play a major part in the signing of the will. I think that Mrs Winton was correct when she said that most of the conversation after the deceased signed the will was about his condition and how ill he felt. 85 The conduct and remarks of the deceased at his final meeting with Mr Malcolm Brodie and Nicholas earlier summarised suggest that the deceased knew that he was about to die. 86 Mrs J. M. Brodie impressed me as a very managing, controlling and shrewd lady who was intent on advancing the interests of her children. Having regard to her character traits her father would have been well aware that she wanted his will changed so as to include her children and not just benefit Mrs Alvaro, the daughter of her deceased sister, Beverley. Mrs J. Brodie was aware of the close ties between the deceased and Mrs K. Alvaro. Mr Malcolm Brodie declined to discuss with the deceased the provisions of his will. He was not present on 7 December 2006 and left when his mother was about to pursue that matter on 9 December 2006. 87 Mrs K. M. Brodie was very interested in the deceased making a new will. She shared her mother's desires. Mrs Fiona Brodie who travelled down from the Central Coast on 7 December 2006 arrived after the informal will had been signed. 88 The deceased's medical condition on 7 December 2006 warrants attention. On the afternoon of 6 December 2006 he was looking forward to leaving hospital and returning to Archbold House. The ambulance had been booked for 8am on 7 December 2006. Shortly after 7:30am on 7 December he collapsed on the way to the bathroom. The ambulance was cancelled. The deceased appeared to be low. He had a very big bleed. He recovered to some extent. The doctors thought it was worth doing another endoscopy to help stop any bleeding. Mrs J. M. Brodie who arrived in the ward about 8:20am said that the deceased looked much better than expected. Her comment to the deceased that he looked "wonderful" is incorrect. That overstates the position. Mrs K.M. Brodie arrived a short time later. He told them he was going to have another procedure to try and stop the bleeding. According to Mrs J. M. Brodie and Mrs K.M. Brodie the deceased then focused on making a new will. I have earlier summarised the ensuing events, the making of the informal will and the subsequent events. The informal will was allegedly rnade between the time of the deceased's condition improving somewhat and the performance of the further endoscopy. There was some debate about the time the procedure was carried out during the morning of 7 December 2006. The Nursing Notes suggest that the deceased was received into the Recovery Room following an endoscopy at 10:15 hours and returned to the ward at 10:45 hours. Infusions occurred on his return to the wards. There is a note "IVN/S in progress in L leg. IVC changed to PC at 1055 -*3hrs. Visitors in attendance". The Brodie family evidence suggests that the further endoscopy and the return to the ward may have occurred a little later in the morning. I doubt if the difference is significant. The informal will of 7 December 2006 was made in the relatively short period between the partial recovery of the deceased and the decision to do a further endoscopy probably made about 8:30am or perhaps a little later on the one hand and, on the other hand, the deceased being prepared for and taken to the procedure room for the further endoscopy. 89 Mrs Alvaro relied on the course of events revealed in the Nursing Notes and the three medical reports of Dr Tuly Rosenfeld, an experienced and highly qualified consultant, Geriatrician and Physician. He had not seen the deceased and relied primarily on the entries made in the Notes of the Royal North Shore Hospital (RNSH). He regarded such notes as informative and revealing. 90 Dr Rosenfeld, in his report of 5 November 2007, addressed the question whether the deceased had the testamentary capacity to undertake his will of 9 December 2006. Dr Rosenfeld advanced the following opinions on the balance of probabilities: a) from at least the time of the deceased's admission to RNSH in July 2006 the deceased was suffering from a degree of cognitive impairment due to underlying brain disease; b) this would have been present to that extent or have progressed in severity to the time of his death in December 2006. 91 Dr Rosenfeld relied on a number of factors in support of these conclusions. 92 First, the deceased was unable to provide details of his medical history and any of the medications he was taking at the time of his admission to RNSH: i) The RNSH admission notes of 4 July 2006 at 2330 hours indicate that the deceased was unable to provide details of his medical history and any of the medications he was taking. The notes state: "alert but unsure of PMH (past medical history)" "Meds-(unsure)(daughter to bring in tomorrow) ". (The deceased had earlier had 2 falls at his townhouse and had a broken hip). ii) The Anaesthetic Record completed by Dr Yarrow on 5 July 2006 states "uncertain historian". 93 I had considerable doubt whether reliance should be placed on the failures of the deceased to supply on admission, details of his past medical history and details of any of his medications having regard to what he had experienced on 4 July 2006. While the evidence is not clear there is a suggestion that about 10:00am in his townhouse he was loading the washing machine when he slipped and fell. He managed to crawl upstairs. He went to shave and slipped a second time and landed on his Right leg. He felt pain in his Right hip. Much but not all of this appears from the admission notes. 94 The Ambulance Notes record that the ambulance arrived at the townhouse about 2027 hours, had patient contact at 2030 hours and left at 2107 hours. The notes contain this summary: "c/T Fall. O/A 98 y.o. Pt found supine in bed. Pt states accidental mechanical fall @ 1400. NIL LOC & crawled upstairs & stood briefly before falling a 2nd time due to pain. Pt called for assistance @ 1900 (family) .... orientated... " 95 The deceased was given morphine sulphate by an ambulance officer for pain. 96 The Triage Nurse saw the patient at 2118 hours and also obtained a history of 2 falls. There are some differences in the details. The patient was probably in considerable pain from about 14:00 hours and the doctor in the RNSH Emergency Department was taking a history at 23:30 hours. 97 Dr Rosenfeld placed some reliance on the deceased not being able to recall his past medical history and details of any of his medications. I thought that in view of what the deceased had experienced earlier on 4 July 2006 and the late hour at which the patient was speaking with the admitting doctor at RNSH that little reliance should be placed on the deceased's failure to recall his past medical history and details of any of his medications. At T 115 Dr Rosenfeld expressed the view that Mr Pearce's underlying cognitive impairment would have played a role. He acknowledged that the time and the other factors would also have been significant. I regarded the anaesthetic record notes as being of value although no details are given of "uncertain historian". 98 Secondly, Dr Rosenfeld relied on the deceased requiring assistance with instrumental activities of daily living, namely, meals on wheels and home help, while he was still at home even prior to the two falls that led to his admission to RNSH. 99 Dr Rosenfeld accepted that to a degree the deceased's need for assistance was likely to have been related to frailty and reduced mobility but thought it was probable that the deceased's need for assistance was also related to brain disease and early cognitive impairment, especially in higher level executive function. He also thought that frailty, poor balance and mobility as well - as falls are likely to have- been related -to evidence - of neurodegenerative change in the deceased's brain. 100 Dr Rosenfeld said that brain disease doesn't just occur, but progresses in severity over time. It does not heal itself (T 79). 101 Dr Rosenfeld thought that the important aspect was the deceased's mobility problem. Dr Rosenfeld was mistaken in his recollection in the witness box that the deceased fell down some stairs. Dr Rosenfeld regarded a need for care and assistance as a clinical problem and he looked for causes. 102 Thirdly, Dr Rosenfeld relied on the deceased suffering episodes of confusion (or delirium) during his admission to RNSH in July 2006. Dr Rosenfeld said (T 87) that delirium or confusion is a term that refers to an acute reversible episode so that delirium is superimposed on an underlying cognitive impairment. Usually, the delirium itself will improve. 103 Dr Rosenfeld relied on these notes of RNSH: 6/7/06-1420 "Patient alert and occasionally confused". 8/7/06-1400 "Alert and orientated". 9/ 7/ 06-0530 "patient confused....banging phone on table for attention...tugging at IDC"(indwelling catherter) 9/7/06- 1500 "notified dr checked patient confused+" 104 Dr Rosenfeld wrote that the occurrence of delirium in this setting is invariably associated with underlying cognitive impairment or dementia. Dr Rosenfeld also wrote, "delirium occurs when underlying brain disease leads to a loss of cerebral reserve" and "delirium is common when acute illness occurs in an older person with reduced cerebral reserve due to brain disease". 105 Dr Rosenfeld stated that in clinical (nursing) notes the word "confusion" usually does refer to confusion; the proper clinical term is delirium. 106 As to the phone banging Dr Rosenfeld agreed that this could be the action of a person who was desperate to get some assistance. Initially, I was inclined to doubt whether reliance should be placed on the phone banging as I thought it was possible that the deceased was so anxious to obtain assistance that he used what was available to attract the attention of a nurse. Dr Rosenfeld disagreed that it was unjustified to use the deceased's conduct as evidence of brain disease. Dr Rosenfeld said the banging was associated with the patient being confused. He was tugging at his indwelling catheter because it was uncomfortable. It was not removed but the patient was settled. With his extensive experience Dr Rosenfeld could not recall a patient banging, with a phone on the furniture to call for attention. In the light of Dr Rosenfeld's experience and my assessment of the situation the deceased's conduct was exceptional and points to an underlying problem. 107 Dr Rosenfeld agreed that he had nothing else to rely on other than the hospital notes as constituting evidence of confusion or delirium on the part of the deceased. 108 Fourthly, Dr Rosenfeld relied on the deceased requiring entry to residential care in a hostel in September 2006. This followed a period of respite care. 109 Dr Rosenfeld noted that prior to his admission to RNSH in July 2006 with a fractured hip the deceased was using a walking frame to mobilise. The doctor thought that the need for the deceased to enter hostel care indicates the likelihood that his increasing need for care was related to factors other than simply his mobility. Those factors would probably be related to the deceased's increasing frailty and the effects of worsening cognitive function resulting in increasing dependency. 110 Fifthly, Dr Rosenfeld relied on the deceased being found to have a Low Vitamin B12, a factor associated with the presence of cognitive impairment and dementia. 111 Dr Rosenfeld wrote, "Reduced Vitamin B12 is associated with and a cause of impaired cognitive function and dementia. The deceased does not appear to have received any treatment for this condition. Dr Rosenfeld did not agree that the abnormality revealed by the test was relatively modest. 112 Counsel for Mrs J. M. Brodie took Dr Rosenfeld thought the forms of the Commonwealth Department of Health and Ageing completed in respect of the deceased about 27 July 2006 while he was at Hirondelle Private Hospital which appears to deal with aged care rehabilitation. One form records that the deceased needs help or supervision with movement activities, transport , domestic assistance and meals and uses such help or supervision. It also records that he receives Home and Community Care. 113 As to cognitive behaviour, the nurse completing the form ticked the boxes that he never exhibits short or long term memory problems, confusion or disorientation. 114 The form contains this Care Recommendation: "Mr Pearce lives alone in his own unit with both family and community support. He is looking at a period of respite care not differing from rehab in order to enhance his recuperation and is investigating future permanent care. Low level respite and permanent appropriate..." 115 The form was completed by a person who appears to be a registered nurse as the delegate of the Aged Care Assessment Team. 116 Dr Rosenfeld explained why little reliance should be placed on the Aged Care Assessment Form when dealing with the issue of cognitive impairment (T 95-98). The nurse completing the form was unlikely to have complete information. 117 Dr Rosenfeld was also referred to the forms completed for and notes made at Archbold House. Reference was made to the medical history provided by Dr Charles Cheng, Mr Pearce's general medical practitioner for 17 years. Dr Cheng described Mr Pearce as fully alert and orientated and did not make any marking in the boxes 'Occasionally confused' and 'Permanently confused'. 118 He marked boxes indicating that Mr Pearce did not need assistance with walking, bed to chair, feeding at meal times, bathing and toilet and was self medicating . He did not consider that Mr Pearce had sufficient ability to live alone. Dr Cheng described Mr Pearce's neurological history as normal and Mr Pearce as suffering from hypertension on 15 September 2006. 119 The assessment made by Nurse Gaffaney on 20 September 1996 at Archbold House was that Mr Pearce was not disorientated or confused, that he did ask for things to be repeated but he had some useful hearing , that he had useful vision and bifocals and that he wore his prescribed glasses. The nurse has marked as to cognitive impairment that there is no diagnosed disorder and no associated problem. The nurse recorded, by ticking a box that there was no diagnosed neurological disorder. Mr Pearce scored well on The Mini Mental State Test. This was described by Dr Rosenfeld as not a significant test. It is just a rough indication. On the medication assessment of 21 September 2006 it was noted that Mr Pearce was not managing his own medications but was able to list accurately his own medications. On the bottom of the assessment this is written: "Mr Pearce is being medicated by staff from Webster Pack Self medicating Zoton & Panadol" 120 Dr Rosenfeld explained that a Webster pack is an instrument that is used specifically with people who have problems taking their medications. 121 None of the documents shown to Dr Rosenfeld caused him to change his opinion. 122 Dr Rosenfeld thought that Mr Pearce probably suffered from brain disease that would have affected and involved the frontal lobes of the brain. The frontal lobes govern his executive functions, for example, reasoning, planning, decision-making, organising, problem-solving, insight and control of compulsive behaviour. The executive functions include consideration of and discrimination between the respective strengths of the claims of those who might have a claim on a testator's bounty. Dr Rosenfeld wrote that in December 2006 Mr Pearce was very ill, bleeding from an ulcer. Mr Pearce suffered recurrent episodes of blood loss and low haemoglobin; he required current blood transfusions. He frequently had low blood pressure. Dr Rosenfeld thought that it was probable that Mr Pearce's cognitive functioning would have been impacted on and impaired due to a range of factors related to his acute illness, investigations and treatment and that they would have adversely impacted on his thinking, clarity of thought, reasoning and judgment and have been superimposed on his underlying brain disease, impaired brain function and cognitive - capacity. 123 Dr Rosenfeld wrote that it was improbable that clinical staff would necessarily be aware of cognitive impairment unless they specifically examined and tested Mr Pearce. 124 Dr Rosenfeld thought it was probable that Mr Pearce understood what the will making process consisted of and that he was so instructing his daughter on 9 December 2006. 125 Dr Rosenfeld remarked that the materials supplied to him provided no indication as to Mr Pearce's recollection and understanding of the details of his estate. Those formal details were not in evidence before me but his assets mainly appeared to comprise his townhouse and some shares. No doubt there were some furniture, furnishings and household and personal effects. Dr Rosenfeld also noted that there was no indication as to the rationale for his decision to revoke his previous will nor his ability to recollect, review and compare the previous will with the more recent one. 126 The earlier will of October 2001 was made either shortly after the death of Beverley or with her death looming. At that stage there had been a reconciliation between the deceased and his daughter Joan (Mrs J.M. Brodie). She had started assisting him and continued to do so. She was actively concerned in promoting his welfare. Mrs K. Alvaro was basically given her mother's half share in the deceased's estate. From about 2000 onwards Mr Malcolm Brodie and Mrs K. M. Brodie established a close relationship with their grandfather. The grandfather was also interested in Rodney's activities. The grandfather seemed to accept that as Mrs Fiona Brodie lived on the Central Coast with her husband and children she could not visit him very often. Mrs J.M. Brodie did not want the townhouse. Her late husband had provided for her. 127 The rationale for the later will is apparent-Mr Pearce was benefiting his daughter to a limited extent and benefiting all his grandchildren equally, despite any past failings. 128 Dr Rosenfeld did not have the benefit of a detailed knowledge of what had occurred in the family between 2000 and 2006. 129 Dr Rosenfeld wrote: "On balance it is my opinion that Mr Pearce would not have been likely under the circumstances in which the will of 9th December was made, being very ill, in hospital, anaemic and bleeding, to have been able , with reason and understanding to recollect and understand these matters". 130 By 'these matters' Dr Rosenfeld was probably referring to Mr Pearce's recollection and understanding of the details of his estate, the rationale of his decision to revoke his previous will and his ability to recollect, review and compare the previous will with that of 9 December 2006 and possibly the claims of his close relatives. 131 Dr Rosenfeld also wrote: "In my opinion Mr Pearce suffered from impaired cognitive function with impaired higher-level reasoning and judgment. This would have been further and adversely impacted upon by his acute illness, anaemia, blood loss, low blood pressure and the circumstances through which he was suffering" … 132 In my opinion for similar reasons to those mentioned above it would be unlikely that Mr Pearce would have been able at the time of making the will of 9th December to recall and understand the claims of potential heirs, particularly in regard to reasoning around the change from his previous will and the similarly complex process of weighing the relative merits of competing heirs, with sound reasoning and judgment. 133 In cross-examination Dr Rosenfeld agreed that most of the adult population would be able to recollect, review and compare one will with another. 134 Dr Rosenfeld thought that a testator should have the ability to appreciate not only the number of people he was considering to benefit but the complexity in the relationships. By that he meant not just the blood relationship but the range of historical biographical events that have coloured the relationship between the deceased and those being considered as possible beneficiaries or to be omitted from the will. The testator should be able to hold the details and the competing claims in his brain. The testator would need to be able to identify mentally the people he intended to benefit under his will. Dr Rosenfeld agreed that it would be relevant that the majority of individual potential beneficiaries were physically present when the will was made. It would also be relevant for any individual potential beneficiaries who were not present to be the subject of conversation with the testator around the time the will was being made. 135 Dr Rosenfeld accepted that a testator can make whatever decision he likes, whether it is good or bad but added that the real question is whether the judgment is impaired by brain disease. 136 Dr Rosenfeld said that it was not necessarily the case that someone in Mr Pearce's position (accountant with familiarity with the stock market) would be able to make intelligent judgments about money matters. It was the doctor's experience that people retain the things that are best known to them even late into dementia and also that the people are still able to do the tasks that they were good at and do them well even though they have significant cognitive impairment. Dr Rosenfeld reiterated the matters on which he relied to conclude that Mr Pearce's cognitive capacities were materially impaired in 2006, including for example his confusion (delirium), not being able to manage independently without a blister pack for his medications, not being able to give a history and the whole clinical picture. 137 For his second report of 30 March 2008 Dr Rosenfeld was supplied with a copy of each of six affidavits sworn in February 2008 and relied upon by Mrs J.M. Brodie. Dr Rosenfeld thought that having regard to the information and history contained in the additional affidavits, Mr Pearce suffered from significant and life threatening acute illness which, superimposed on an underlying cognitive impairment would most likely have adversely impacted on his reasoning, judgment and memory to the extent that his capacity in regard to testamentary activity would have been lacking. Dr Rosenfeld adhered to the opinions he had expressed in his earlier report of 5 November 2007. 138 The third report of 7 April 2008 of Dr Rosenfeld dealt with the informal will of 7 December 2006. Dr Rosenfeld wrote: "...those issues that account for Mr Pearce's lack of testamentary capacity, as outlined in my earlier reports apply equally or more so in regard to the document completed on 7 December 2006". And: "On the 7th December 2006 Mr Pearce was actually unwell, having suffered a further episode of upper bowel bleeding, had been suffering from reduced consciousness due to hypotension (low blood pressure), was anaemic due to blood loss and subsequently underwent a gastroscopy". Dr Rosenfeld also wrote: "...Mr Pearce's acute and temporally recent (to the completion of the document that morning) deterioration on the morning of 7/12/2006 was associated with reduced consciousness, low oxygen, anaemia, and hypotension ( low blood pressure)". 139 Dr Rosenfeld also referred to "reduced haemoglobin due to blood loss". He summarised the condition of Mr Pearce, his illness and his treatment on 7 December 2006 as revealed by the Hospital Notes. 140 Dr Rosenfeld accepted that a reference to the proposed beneficiaries as "my daughter and each of her grandchildren" showed that the person had in mind a particular class which he intended to benefit. He thought that the deceased would have known what his assets were, assuming they were as simple as just a home and some shares. 141 Dr Rosenfeld did not agree that with Mr Pearce's apparent ability to carry on conversations as an adult without difficulty, to do puzzles, to follow financial markets and to consider his immediate relatives, it was within Mr Pearce's capacity to decide rationally for whatever reasons he had which relatives he wanted to benefit. 142 Dr Rosenfeld explained that first he wanted to understand what Mr Pearce's cognitive function was and what his diseases were and then he looked at the tasks he undertook. 143 In re-examination Dr Rosenfeld said that the word 'alert' in the nursing notes is not necessarily a comment on cognitive function. Some Legal Principles 144 These are taken from the judgment of Gleeson CJ in Re Estate of Ethel Gertrude Griffith (Deceased), Easter v Griffith & Ors (Unrep. NSWCA, 7 June 1995) with whom Handley JA agreed: (1) Where the evidence in a suit for probate raises a doubt as to testamentary capacity, the plaintiff bears the burden of satisfying the court that the testator had such capacity. (2) If, following a vigilant examination of the whole of the evidence, the doubt is felt substantial enough to preclude a belief that the testator was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted. This invites caution. (3) The power freely to dispose of one's assets by will is an important right and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. (4) The traditionally accepted formula for determining testamentary capacity was that stated by Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549 at 565: "It is essential to the exercise of (testamentary) power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made". (5) Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. By a delusion is meant a fixed and incorrigible false belief which the. testator could not be reasoned out of. It is not necessary to bring the evidence which raises doubt under the rubric of delusion. (6) Depending upon the facts the critical question often concerns the mental capacity to comprehend and appreciate the claims upon one's bounty. (That was the critical question in Griffiths and is an important question in the present case). (7) Testamentary capacity is not reserved for people who are wise or fair or reasonable or whose values conform to generally accepted community standards. 145 In Griffiths the key finding was that 'there was a plausible case, not rebutted, that the testator was unable to consider and give effect to the claims upon her bounty of her only child. 146 In Re Estate of P.F. Hodges Deceased (1988) 14 NSWLR 698 at 704-707 Powell J provided a detailed analysis of the manner in which the courts have approached the practical application of the principles propounded in Banks v Goodfellow (quoted earlier), including the rules as to onus of proof. These include: (a) the proponent of a will establishes a prima facie case where, having regard to the circumstances so far established by the proponent's testimony, the court is satisfied that the will propounded is the last will of a free and capable testator. (b) the first step in establishing a prima fade case is proof that the will was duly executed [Mr Pearce signed the will in the presence of Mr and Mrs Winton who each attested and subscribed the will of 9 December 2006 in the presence of the testator]. (c) unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval. (d) facts which may well cause suspicion include: (i) that the person who prepared or procured the execution of the document receives a benefit under it; (ii) that the testator was enfeebled when he executed the document. The benefit received by Mrs J.M. Brodie reduced from one half under the October 2001 will to one sixth but her 3 children each received one sixth of the estate whereas previously each of her children had received nothing. Mrs J.M. Brodie was intent on advancing the interests of her 3 children. The testator was enfeebled and very ill. (e) a duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding. (f) facts which, if established may well provide evidence to the contrary include: (i) the exclusion of persons naturally having a claim on the testator ' s bounty; (ii) extreme age or sickness. As to (i) the question is whether at the time of making his will the testator was capable of recollecting his relations, of understanding their respective claims upon his regard and bounty and of deliberately forming an intelligent purpose of excluding them from any share of his property or, I would add reducing their previously given share. There is the parallel situation of including previously omitted relatives and consequently reducing a previously given share. See Harwood v Baker (1840) 3 MOO P.C. 282 at 290-291 and 13 ER 117 at 120. (g) While extreme age or grave illness will call for vigilant scrutiny by the court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it, will only be so if it appears that age or illness has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property. 147 Counsel for Mrs J.M. Brodie relied upon the statements of principle (and not the factual conclusions) of Kirby P in Re Griffith Deceased in his dissenting judgement. 148 Kirby P emphasised that the law recognises and upholds freedom of testamentary disposition. He noted that the freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one's own property. Kirby P observed: (a) In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. Slowness, illness, feebleness and eccentricity are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will. Not will partial unsoundness of mind which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval. (b) Medical evidence is only relevant as it throws light on the court's - responsibility to decide whether the testator has appreciated the extent of the property to be disposed of, realised the various calls for disposition to which consideration should be given and was able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will. 149 Counsel for Mrs Brodie in propounding the will made these principal submissions: 1) Dr Rosenfeld used a very flimsy base from which to hypothesise the existence of brain disease and then to reach the conclusion that the deceased actually had brain disease. He had embarked upon entirely hypothetical conjecture. 2) Even if there was some cognitive impairment it does not mean that in the circumstances that Mr Pearce lacked testamentary capacity to make a will disposing of his estate. The estate was a simple one and the family set-up was relatively simple-a daughter who did not want his townhouse and had been provided for by her husband and five grandchildren to whom he had varying degrees of attachment. 3) While the deceased had his ups and downs in hospital from 4 to 10 December 2006 at the critical moments when his pen hit the paper the evidence was very compelling that he knew exactly what he was doing. 4) Even if the court accepted Dr Rosenfeld's retrospective analysis and conclusion (and it should not do so) about the existence of brain disease its relevant impact on the deceased's testamentarycapacity must have been minimal, if any. This deceased had ample testamentary capacity. 150 If Mr Pearce suffered from some cognitive impairment that does not of itself mean that he lacked testamentary capacity. It is necessary to look at the combined impact of the effects of his severe illness and the cognitive impairment from which this 98 year old man suffered. 151 Counsel for Mrs Alvaro analysed the evidence in considerable detail. Mr Pearce's wife died in June 1997 being the month in which he turned 89 years of age having been born on 5 June 1908. It was submitted that after her death his horizons shrank and he gradually became more physically frail. His daughter Beverley died in December 2000 or 2001. The October 2001 will reflected his close relationship with his granddaughter, Kylie. 152 Counsel for Mrs Alvaro relied on her grandfather having no ongoing relationship with Rodney after Rodney's involvement in the removal of Dr Ron Le Lievre from his family in 1996. While Mrs Brodie and her husband seemingly attempted to mend the relationship with Rodney and discussed his improvement with the deceased, the latter died without speaking to Rodney again. Mrs Alvaro gave evidence that the deceased often expressed to her his frustration with Rodney's conduct and his disappointment in his financial management skills and the incident which caused the estrangement. Mrs Alvaro insisted that her grandfather never forgave Rodney for his actions and that Rodney and her grandfather remained unreconciled when her grandfather died. While the deceased and Rodney may not have reconciled the deceased inquired after Rodney and was interested to learn of his development and about his children. Mrs Alvaro thought from her grandfather's conversation that he liked all of Mrs Brodie's children but did not have much contact with them until around 8 or so years ago when Mrs K. M. Brodie lived nearby and later Mr M. Brodie commenced to work nearby. 153 The deceased drove until he was 95 (in 2005) but after that he infrequently went out of his unit unless accompanied and his interests reduced to those he could indulge through the newspapers and daytime television and interaction with others. He often had visits from family but his conversation in the years after 2005 stayed within predictable bounds, for example, the stock market, his garden, family members, word puzzles in the paper and sport (when conversing with males). He was also interested in food. 154 Counsel for Mrs Alvaro submitted, correctly, that the picture was of a man whose abilities to cope with the complexities of life diminished with age and at the age of 98, was no longer the physically active and flexible man he once was. He had continued to be physically active and flexible mentally until he was about 95; his powers had diminished gradually over the years. Counsel for Mrs Alvaro submitted that the picture which emerged was a classic one of frontal lobe impairment, which was unsurprising at 98. 155 Mrs Alvaro relied heavily on the evidence of Dr Rosenfeld, summarised earlier. She submitted that I should accept his conclusion that from at least July 2006 it was probable that Mr Pearce was suffering from a degree of cognitive impairment due to underlying brain disease. As earlier mentioned Dr Rosenfeld relied on a number of factors as set out in his report. Given the deceased's experience during 4 July 2006, the pain he had suffered and was suffering, the late hour at which the doctor saw him I thought that little reliance should be placed on his failure at that time to be able to detail his past medical history and his medications. Notwithstanding my views on this matter, and Dr Rosenfeld's mistaken recollection that the deceased had fallen down some stairs, I thought that the other matters relied on by Dr Rosenfeld in combination justified his conclusion that the deceased was probably suffering from a degree of cognitive impairment due to underlying brain disease. 156 Dr Rosenfeld's opinion that the brain disease of the deceased probably affected and involved the frontal lobes of his brain is correct. Upon this basis it appears from Dr Rosenfeld's report and evidence that this results in: (a) reduction of executive function, and (b) a reduced ability to consider and discriminate between the strengths of the claims of various possible beneficiaries upon his estate; and (c) a reduced cerebral reserve leading to a reduced ability to withstand delirium. 157 I accept Dr Rosenfeld's opinion as to the probable consequences of brain disease affecting the frontal lobes of the deceased. 158 The accident leading to the broken hip of the deceased in July 2006 and the events of early July 2006 provided an external marker of a downturn in the health of the deceased. In early December 2006 he became seriously ill resulting in his admission to RNSH in the early hours of 4 December 2006. He was suffering from low blood pressure, blood loss and low haemoglobin. His acute illness would impact substantially upon his clarity of thinking, judgment and powers of reasoning. 159 There was a further marked downturn in the deceased's condition on the morning of 7 December 2006 with him collapsing to the floor. There was a significant loss of blood at 7:45am he vomited 300-400 mis of blood. He had a Blood Pressure at 07:47 of 90/50. Dr Barrett recorded about 08:00 am "BP80 sys (systolic)". The Blood Pressure had recovered to 140/70 by 8:10am. There was low oxygen saturation and reduced haemoglobin due to blood loss. In his report of 7 April 2008 Dr Rosenfeld referred to the medical condition of the deceased on 7 December 2006. 160 The Hospital Notes indicate that the deceased's condition was poor on 8 December and 9 December 2006. Without rehearsing all the details it is noted that at gam on 9 December 2006 there was ongoing 'melaena' (sic) (i.e., still bleeding)and BP of 102/62. The "will" was dictated during the morning of 9 December 2006. There was low blood pressure (84/46) at 12:10 as well as ongoing melaena. The deceased was described as 'alert and oriented (sic), but pale'. The "will" was signed shortly afterwards. 161 I find that the impact of the severe physical illness of the deceased meant that the deceased was unlikely to have had testamentary capacity as at 7 December 2006 and at 9 December 2006. I do not think that Mrs J.M. Brodie and Mrs K.M. Brodie realised how physically ill the deceased really was on the morning of 7 December 2006. 162 I find that the impact of the deceased's physical illness on top of his cognitive impairment meant that the deceased probably did not have testamentary capacity as at both 7 December 2006 and 9 December 2006. He was unable to weigh the respective claims of his family members and to give proper weight to the strengths and weaknesses of their claims. I do not accept the submission of counsel for Mrs J.M. Brodie that when the deceased's pen hit the paper he knew exactly what he was doing. I am not satisfied that on either 7 or 9 December 2006 that the testator was of sound and disposing mind, memory and understanding. 163 The circumstances in which both the documents of 7 and 9 December 2006 were executed arouse suspicion. While both documents were filled out by Mrs J.M. Brodie I accept that it would have been difficult for the deceased to write, given his condition and the treatment he was receiving. Mrs J.M. Brodie who, as earlier mentioned, struck,me as controlling and managing was intent on ensuring that her children benefited under her father's will. Her father, the deceased would have been in no doubt what she wanted. Mr Brodie left the ward when the matter of the deceased making a will arose after his mother arrived at the hospital on 9 December 2006. There is the further matter that the deceased was very ill on 9 December 2006 and, as he put it, he was having an awful time. 164 It was not in issue that if the court declined to grant Probate of the document of 9 December 2006 to Mrs J. Brodie and letters of administration to Mrs Brodie of the estate of the deceased with the document of 7 December 2006 that the court should on Mrs Alvaro's claim make a grant of Probate in solemn form of the will of 12 October 2001 of the deceased. I think that the order sought in the Amended Cross Claim is appropriate, namely, that Probate in solemn form of the will dated 12 October 2001 of Montague Campbell Pearce be granted to Kylie Alvaro with leave to Joan Margaret Brodie to come in and prove the will. The claims of J.M. Brodie should be dismissed. The question of costs, if not agreed, may be argued on a date to be arranged with my Associate. ********** 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.