Supreme Court New South Wales Medium Neutral Citation: Romascu v Manolache [2011] NSWSC 1362 Hearing dates: 9, 10 November 2011 Decision date: 12 December 2011 Jurisdiction: Equity Division - Probate List Before: Hallen AsJ Decision: Order that: (a) Letters of administration with the deceased's Will made on 6 May 2009 annexed in solemn form be granted to the Plaintiff; (b) The matter be referred to the Registrar to complete the grant; (c) The Cross-Claim be dismissed; (d) If the parties are unable to agree on the burden of costs, the matter is adjourned for argument; (e) With the exception of each original Will, the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned. Catchwords: The deceased made two wills during her lifetime, the first in May 2009 and the last in December 2009 - No dispute that the May Will was duly executed and otherwise valid - Sole issue whether December Will valid and should be admitted to probate - If valid, it revoked the May Will - Central questions concerning the validity of the December Will, are whether the deceased validly executed that Will; whether she had testamentary capacity and whether the deceased knew and approved of the December Will - Undue influence also alleged but not relied upon at the hearing Legislation Cited: Family Provision Act 1982 Succession Act 2006 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Alvaro, In the Estate of; (deceased); Public Trustee v Alvaro (1995) 182 LSJS 383; [1995] SASC 5183 Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow [1870] LR 5 QB 549 Battan Singh v Amirchand [1948] AC 161 Bool v Bool [1941] St R Qd 26 Boughton v Knight (1873) LR3 P&D 64 Brown v Wade [2010] WASC 367 Bull v Fulton (1942) 66 CLR 295 England, In the Will of (1900) 22 ALT 86 Edwards v Boyd (1958) 75 WN (NSW) 525 Fradgley v Pocklington (No 2) [2011] QSC 355 Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 Frizzo v Frizzo [2011] QCA 308 Griffith, Re; Easter v Griffith (1995) 217 ALR 284 Hodges, Re; Shorter v Hodges (1988) 14 NSWLR 698 Hoff v Atherton [2005] WTLR 99 Jolley v Jarvis [1964] P 262 In the Estate of Kirs (1990) 55 SASR 61 Key v Key [2010] EWHC 408; [2010] All ER 155 King v Hudson [2009] NSWSC 1013 Kovacs v Public Trustee [2006] SASC 1 Kuhl v Liebcheschel [1933] SASR 394 Levy, Re [1953] VLR 652 Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 Munn, In re [1943] SASR 304 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519 Oakes v Uzzell [1932] Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 Palin v Ponting [1930] P 185 Parton v Johnson (1868) LR 1 P and D 549 Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported) Perrins v Holland [2009] EWHC 1945 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Richardson v Rearden [2006] NSWSC 1252 R, In re (dec'd) [1950] 2 All ER 117 Sharp v Adam [2006] WTLR 1059 Smith v Tebbitt (1867) L.R. 1 P&D 398 Tsagouris v Bellairs [2010] SASC 147 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Virginie-Pitel v Campbell; Campbell v Virginie-Pitel [2010] NSWSC 1440 Young v Holloway [1895] P 87 Texts Cited: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed) (1989) Jarman on Wills, London, Sweet and Maxwell, 8th ed, 1951, Vol. 3 K Laster & V Taylor, Interpreters & the Legal System (1994), 120 referred to in Barnett, Michael, "Mind Your Language - Interpreters in Australian Immigration Proceedings" [2006] UWSLawRw 5; (2006) 10(1), University of Western Sydney Law Review 109 Category: Principal judgment Parties: Florin Adrian Romascu (Plaintiff) Elena Manolache (Defendant) Representation: Counsel: Plaintiff appeared in person Mr P R Glissan (Defendant) Counsel: Plaintiff appeared in person John McEncroe & Company (Defendant) File Number(s): 2010/272586 Judgment The Claims 1HIS HONOUR: Maria Romascu ("the deceased") died on 23 January 2010. At the date of her death, she was aged almost 74 years, having been born in March 1936. This is a bitterly fought Probate action that arises following her death. The matter was listed for one day, but it was not completed, in that time, and it continued for the whole of a second day. 2The evidence, relevantly, establishes that the deceased made two wills during her lifetime, the first being made on 6 May 2009 ("the May Will") and the last being made on 23 December 2009 ("the December Will"). There is no dispute that the May Will was duly executed, and that, when made, it was a valid and effective Will. The sole issue is whether the December Will is a valid Will, and, as such, should be admitted to Probate. If it is valid, then it revoked the May Will. I shall return to each of the Wills later in these reasons. 3Although, I shall identify, with more precision, the bases of the relief claimed by the Plaintiff, for the time being it is sufficient to note that the parties agreed, at the commencement of the hearing, that the central questions concerning the validity of the December Will, are whether the deceased had testamentary capacity and whether she knew and approved the contents. 4The Plaintiff, in the pleadings, also raised an affirmative defence of undue influence, but it was difficult to discern the factual basis of such a claim for relief. Indeed, the identity of the alleged "influencer" was not specified. This seemed to be accepted by the Plaintiff, who agreed that the allegation of undue influence could not succeed. It is not necessary, in the circumstances, to deal further with that allegation and/or the principles that apply. 5That the Plaintiff did not proceed on the allegation of undue influence may be relevant on the issue of costs, although it is difficult to see specific parts of the Plaintiff's evidence that would have had to be considered on that issue only or how the proceedings were extended because of that defence. Formal Matters 6The Plaintiff is the only son of the deceased and the sole beneficiary named in the May Will. Whilst there is no executor appointed in the May Will, as the sole beneficiary, the Plaintiff is the appropriate party to obtain letters of administration with the May Will annexed in solemn form. 7The Defendant is a friend of the deceased and the sole executor named in the December Will. She seeks a grant of Probate in solemn form of that Will. As the executor nominated in that Will, she is the appropriate party to obtain probate in solemn form of the December Will. She has no beneficial interest in the deceased's estate. 8The deceased's estate in New South Wales, at the date of death, was disclosed as comprising only movable property, being cash in two bank accounts ($25,138), jewellery (value not shown) and household chattels (12 paintings of undisclosed value). No liabilities were shown as outstanding. (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.) 9In addition, at the date of her death, there was some evidence that the deceased owned real estate in Bucharest, Romania. It was said to be a vacant property, described as a "villa", with some furniture in it. It was also said that she had moneys in a bank there, the amount of which is not known. There is some evidence that the Romanian real estate, in May 2011, had an estimated value of about AU$328,000. These matters were the subjects of dispute by the Plaintiff. 10One area of dispute related to whether the deceased was, in fact, the owner of the real estate in Romania, or whether her husband was the owner, since it had not been transmitted out of his name. It was agreed, however, that the Plaintiff had inherited the real estate in Romania. 11The Court is not concerned with the property of the deceased that is overseas. Accordingly, it is not necessary to resolve the dispute as to whether, and if so, what, property the deceased owned overseas. 12The Defendant asserts that on 1 December 2009, the deceased closed one of her bank accounts, in New South Wales, and made a gift of about $10,000 to her, by transferring that amount directly into the Defendant's bank account. An additional amount of $30 was also credited to the Defendant's account. 13There is some dispute about whether the amounts transferred were gifts, the Plaintiff asserting that the deceased believed that the amounts had been transferred to the Defendant to pay for her funeral. 14The Plaintiff also raised the issue of $2,000 having been withdrawn from the deceased's bank account following her hospitalisation in December 2009. He asserts that the amount was withdrawn at a time when the deceased lacked capacity and could not authorise the Defendant to withdraw the amount. There was no dispute that the Defendant had withdrawn that amount the day before the death of the deceased. 15Although, strictly speaking, it would be unnecessary to determine these issues in the present Probate proceedings, the parties requested me to resolve them in order to save costs. In view of the amounts involved, I shall do so. 16At the date of hearing, the nature of the estate in New South Wales remains substantially the same, but its value is the subject of some dispute. The estimated amount of cash in bank held on behalf of the estate, as at May 2011, was $20,758. At the present time, it is $21,115. The paintings, which are said to have been painted by the deceased's husband, and the deceased's jewellery, remain in the possession of the Plaintiff (at least in the home he owns, in which the deceased lived at the date of her death). 17The suggestion made by the Plaintiff, from the Bar table, was that, currently, neither the paintings nor the jewellery have any value. There was no suggestion to the contrary. 18The only liabilities of the estate, other than the costs of these proceedings, that have been identified, are amounts, totalling $1,032, owed to the mother of the deceased's granddaughter, being amounts spent by her in relation to the funeral service for the deceased in Romania. If this is a debt owed by the estate, it should be paid. 19The Plaintiff caused a citation to be served on the minor granddaughter of the deceased, Andrea Maria Petrescu, and also upon Doina Cristina Petrescu, her mother. He sent the citation, by registered post, to the last address known to him, in which they were living together, in Romania. 20I am satisfied that the Romanian Postal Service served the envelope that was said by the Plaintiff to contain the citation on, or about, 5 April 2011. There was no appearance by, or on behalf of, the minor granddaughter. 21In any event, the Defendant, who has appeared with counsel, and has defended the proceedings, appears to be acting to protect the interests of the grandchild of the deceased, as she is the sole beneficiary named in the December Will. 22Whatever the result of the proceedings, the Defendant seeks her costs out of the estate in New South Wales. To the extent that the estate in New South Wales is insufficient to meet those expenses, she seeks an order that the Plaintiff should personally be liable for those costs. The basis of such a claim, in the event the Plaintiff was successful, was not the subject of submissions. 23As the Plaintiff appeared in person throughout the proceedings, his costs will be limited. 24During submissions, it was agreed, in view of the submission made by the Defendant, that following the delivery of my reasons for judgment, the issue of costs would be determined, after further argument, if the parties were unable to agree. 25On a number of occasions, in pre-trial directions hearings, and, again, at the commencement of the hearing, I explained to the parties that if the matter proceeded to completion of the final hearing, and if an order for costs were made in favour of the Defendant (who was legally represented), out of the estate, there would, in all probability, be no estate, in New South Wales, for either the Plaintiff, as the sole beneficiary named in the May Will, or the deceased's granddaughter, as the sole beneficiary named in the December Will (if she reaches the age of 18 years). 26I explained also that whilst it was important to determine which was the last Will of the deceased, to do so was really an exercise that would not benefit either party, or the minor beneficiary named in the December Will. 27These explanations fell on deaf ears and the case has proceeded with elements of acrimony, mistrust and intransigence. The Plaintiff's determination to ensure a grant to him of the May Will is even more unfathomable, since it is his daughter, Andrea, with whom he does not have any parental relationship, who is the sole beneficiary named in the December Will. Background Facts 28The facts I set out in this paragraph are agreed. Where they are not, I am satisfied that the evidence clearly establishes them. (a) The Plaintiff was born in June 1960. He is the only child of the deceased and her husband, Ioan Romascu. (b) Ioan Romascu predeceased the deceased, having died in February 2005. The deceased did not remarry, or enter into a domestic relationship, following the death of her husband. (c) The deceased's husband was buried in Romania. (d) The Plaintiff lived with his parents until a short time after he obtained his Master's degree in computer systems engineering in 1985. (e) The deceased arrived in Australia in October 1996. It was the Plaintiff who sponsored his parents to emigrate. After their arrival in Australia, they lived in a home that he owned. The Plaintiff's parents lived there, together, until, and she continued to live there, alone, following, her husband's death. (f) At the date of her death, the deceased was in receipt of the Age Pension and pension supplement, from Centrelink, in the amount of $728 per fortnight. (g) The Plaintiff's daughter (the deceased's grandchild), Andrea Maria Petrescu, was born in August 1996, in Romania. She was born as a result of a short, casual, relationship between the Plaintiff and her mother, in about Christmas 1995, when she was in Australia. However, the mother returned to Romania and since then there has been no relationship between them. (h) The relationship between the Plaintiff and his daughter appears to be virtually non-existent. (i) The nature of the relationship between the deceased and her grandchild was not explored in the evidence. It was accepted that they knew each other and that there had been some contact between them. A photograph of the deceased, the grandchild and her mother, was tendered. There was also evidence that the grandchild's mother had assisted the Defendant with the funeral arrangements and the service. (j) The Defendant had known the deceased for about five years prior to her death. They were friends. (k) Ms Dade, one of the attesting witnesses of the December Will, was a mutual friend of the deceased and of the Defendant. The Procedural History 29The Plaintiff, himself, lodged a general caveat in the Probate Registry on 10 February 2010, demanding that no grant, or reseal, be made in the estate of the deceased, without notice to him. The caveat was lodged pursuant to Part 78, rule 61 of the Supreme Court Rules 1970. 30In the caveat, the Plaintiff asserted that his interest: "is to make an Equitable Claim in the Probate Division of the Supreme Court. Last Will unfairly distributes the estate of my mother, and, as the next of kin and the only child of the deceased, I ask to be considered under the Family Provision Act 1981/1982 and Succession Act 2006." 31It is not clear whether the Plaintiff, within seven days of the lodging of the caveat, served a copy of the caveat on the Defendant, as required by rule 61 (3). 32The Defendant gave notice of her application for Probate of the December Will, by advertisement, which appeared in the Sydney Morning Herald on 16 February 2010. 33On 15 March 2010, the Defendant sought non-contentious probate in common form of the December Will. 34On 29 March 2010, the Plaintiff applied, or attempted to apply, for letters of administration with the May Will annexed in common form. 35Because the Plaintiff's caveat remained in force for six months, he filed a further general caveat, in the same terms, on, or about, 26 July 2010. 36The Plaintiff, in accordance with Part 78 rule 70 of the Supreme Court Rules, filed a Statement of Claim on about 17 August 2010. The Defendant filed an Appearance on 10 September 2010 and her Defence on 20 September 2010. The Plaintiff filed a Reply on 3 December 2010. The Defendant filed a Cross-Claim on 21 February 2011, in which she sought a grant of Probate (presumably in solemn form). The Plaintiff filed a "Cross-Defence" (a Defence to Cross-Claim) on about 18 March 2011. 37The Plaintiff has continued to be self-represented in the proceedings. 38The Plaintiff filed numerous (in excess of 20) affidavits, upon all of which he has relied. It is fair to say the affidavits are repetitive and that they contain much irrelevant and inadmissible evidence. 39The Defendant filed four affidavits on which she relied. 40Despite the form of the pleadings, the hearing proceeded with the Plaintiff tendering the May Will and reading the affidavit of each attesting witness to the deceased's signature on that Will. The Defendant then read the affidavits upon which she wished to rely, which included the affidavit of the solicitor and the translator, an affidavit described as an affidavit of executor, and finally, her own affidavit. The Plaintiff then read his affidavits. 41The principal witnesses, namely, the Plaintiff, the Defendant, the solicitor who prepared, discussed with the deceased the contents of, and who witnessed the deceased's signature on, the December Will, and the medical practitioner who did not treat, or even meet, the deceased during her lifetime, but who prepared an expert report, were each cross-examined. The second attesting witness to the December Will did not give evidence. 42Mr Keller, the interpreter who attended the hospital on the occasion that the December Will was executed, was initially required for cross-examination, but he was unable to attend on the second day and the Plaintiff indicated to the Defendant that he was not required further. 43The order of witnesses is not set out, but during the hearing, witnesses were interposed in order to accommodate the convenience of the professional witnesses. Nothing turns on the order in which the witnesses were called. 44The Defendant did not call any medical evidence. Counsel for the Defendant cross-examined the Plaintiff's medical expert. The Plaintiff's Case 45In stating the Plaintiff's case first, I have not forgotten the view expressed by Sir JP Wilde in Parton v Johnson (1868) LR 1 P and D 549, at 551: "When several wills are propounded it would be extremely inconvenient to try the validity of the earlier wills before the validity of the will latest in date is decided. The validity of the latest will should be determined in the first instance". 46However, there is no dispute about the validity of the May Will. Accordingly, it was appropriate to deal with it first in the hearing, in circumstances where the issue then was whether it had been revoked. 47The Plaintiff, in the Statement of Claim, sought to have the Defendant's claim dismissed "on grounds of" any, or all, of the following: (a) the "size of the estate, lack of eligibility of the beneficiary and lack of relationship between executor and testatrix"; (b) the "existence of an earlier Will, at a time when the testatrix's absence of sound judgment was less likely, taking into consideration the terms of the [December] Will are totally divergent from the earlier Will"; (c) the "testatrix's moral obligation towards the Plaintiff"; (d) the "lack of evidence for testatrix's change of her previous will in favour of a deathbed will on totally divergent terms and contrary to previous manner of spending"; (e) the "need of the Plaintiff"; (f) "due to the character of the executrix". 48None of these matters, as such, provide a basis for dismissing the Defendant's claim for a grant of Probate in solemn form of the December Will. I shall treat such grounds as particulars of the claims which the Plaintiff asserts, namely the deceased's "lack of capacity at the time of the December Will" and that the deceased did not know and approve of the contents of the December Will. 49The Plaintiff also claims relief under "the Family Provision Act and the Succession Act ". In view of the deceased's death, which is after 1 March 2009, any proceedings for provision out of the estate, or notional estate, of the deceased, must be under the Succession Act 2006, and not the Family Provision Act 1982. 50It will not be necessary to consider whether to make an order under the Succession Act unless the Plaintiff is unsuccessful, and only then, if there is any estate, or notional estate, in New South Wales out of which an order can be made. It is unlikely, if the Plaintiff is unsuccessful, that there will be any estate, or notional estate, out of which to make an order under that Act, since the Defendant would be entitled to an order for her costs and to the extent that they were not paid, they would be paid out of the estate. 51It will not be necessary to consider whether to make an order under the Succession Act if the Plaintiff is successful since he would be entitled to the whole of the deceased's estate. 52In any event, in these proceedings, the Plaintiff has not filed any evidence about his financial and material circumstances or his "needs". Accordingly, it would not be possible to determine whether an order for provision, in his favour, ought to be made. 53The only other matter raised in the Statement of Claim is the Plaintiff's entitlement to an account from the Defendant for monies she has deducted from the estate. In this regard, pursuant to an order made by me, the Defendant provided to the Plaintiff a written account setting out the cash held in New South Wales and the amounts that had been withdrawn by her and for what purpose. The Defendant's solicitor updated the account in May 2011. 54It is difficult to discern the basis of the claim for an additional account on the pleadings. The Validity of the May Will 55The May Will was duly executed by the deceased and by Keith Richards and by Heide Marie Richards. Each of the attesting witnesses confirmed, in an affidavit, that the original Will was signed by the deceased, as her will, in the presence of each of them, present at the same time, and then, at the deceased's request, attested and subscribed by each in the presence of the deceased and of each other. 56Neither of the attesting witnesses was cross-examined. 57I am satisfied that the May 2009 was duly executed by the deceased and if the December Will is not a valid Will, then there should be letters of administration, in solemn form, with the May Will annexed, granted to the Plaintiff. The Defendant's Case 58The Defendant tendered the original of the December Will. She called evidence from the solicitor and from the interpreter who translated the discussion that took place between the solicitor and the deceased. 59She asserts that the December Will is valid, that it is the last Will of the deceased, and that it revokes the May Will. Probate in solemn form of the December Will should then be granted to the Defendant. 60The Defendant also says that she has accounted to the Plaintiff. The principal expense that she has paid out of the estate is the cost of the funeral ($9,176), which cost included expenses of sending the deceased's body to Romania for burial there in the grave beside that of her husband. Whatever the result of the case, this was an appropriate testamentary expense and I am satisfied it was properly paid. The Deceased's Wills 61The May Will is extremely short. It consists of two sides of one sheet. Apart from the signatures, the whole document is typewritten. The second side of the sheet contains the attestation clause, the signature of the deceased, and the signature of each of the attesting witnesses. Other information, such as the full name, date of birth, address and occupation of each attesting witness, is also included. 62The first side of the sheet provides: "06 May 2009 Sydney LAST WILL & Testament made by MARIA ROMASCU On the date of 06 May 2009 This is last Will of me, MARIA ROMASCU of xxxx in the state of NSW I hereby leave to my son: Florin Adrian ROMASCU, born on xx June 1960 at Bucharest in Romania My money from my bank accounts with Westpac Bank of Australia: - Account no xxxx Deeming a/c - Account no xxxx term deposit and - Account no xxxx term deposit" 63It is to be noted that there is no reference to the appointment of an executor or to property of the deceased held overseas. 64On the bottom of each page, the words "Last Will & Testament of Maria Romascu 06-May-2009" appear. 65The December Will is not nearly as short. It consists of five pages, including a front sheet, on which appears the name and other details of the firm of solicitors, Thomson Playford Cutlers, and the words "WILL of MARIA ROMANSCU". (The error in the name of the deceased is repeated on the second page in the introduction to the clauses of the Will.) 66Each page of the December Will, including the front sheet, is signed by the deceased and by two attesting witnesses. 67Relevantly, the December Will is in the following form: "1. REVOCATION OF FORMER WILLS I revoke all of my former Wills and testamentary dispositions. 2. EXECUTORS AND TRUSTEES 2.1 My executor (a) I appoint my friend, Elena Manolache (Elena), as my executor and trustee (my executor) provided she survives me by more than 30 days, is willing and has capacity to act. (b) If Elena does not survive me by more than 30 days, is not willing or does not have capacity to act, I appoint [insert name of reserve executor, if any] as my executor and trustee (my executor) provided he/she survives me by more than 30 days, is willing and has capacity to act. 3. BURIAL I wish that upon my death, my body be buried in a grave in Romania alongside the grave of my late husband, Mr Ion Romascu (Ion), and that my estate pay all expenses associated with doing so prior to any distribution of the residue of my estate in accordance with Clause 4 of this Will. 4. RESIDUE OF MY ESTATE I give the residue of my estate to my executor: (a) to pay thereout all my just debts, funeral and testamentary expenses, and the costs associated with transferring my body to be buried in Romania in accordance with Clause 3 above, and all duties and taxes payable as a consequence of my death or in connection with my estate, and then (b) pay the balance of the residue of my estate to my granddaughter, Andrea - Maria Petrescu (Andrea- Maria), to be held by my executor as trustee if Andrea-Maria is less than 18 years old; and then (c) if Andrea-Maria does not attain the age of 18 years, to pay the balance of my estate to my friend Elena." Clause 5.1 in the December Will contains the powers of the trustees. There are 10 sub-clauses setting out those powers. Clause 5.2 in the December Will provides that the executor may obtain any advice regarding the Will or the trusts created by the Will that she considers expedient and is entitled to use the assets and income of the estate for the cost of such advice. It goes on to identify the subjects upon which the advice may be sought. Clause 5.3 in the December Will relates to "evidence of unwillingness or capacity to act" and identifies the method by which evidence of a person's unwillingness or lack of capacity to act may be proved. 68The last page of the December Will contains the date and the attestation clause. The attestation Clause does not refer to the contents of the Will having been translated to the deceased, but simply states: "Signed by the Testator in our presence and attested by us in the presence of the Testator and of each other" 69The two attesting witnesses are Neils Stecher, a solicitor, and Angela Dade, a teacher. Mr Stecher was the solicitor who prepared the December Will and who attended upon the deceased. As earlier recorded, there was no affidavit from Ms Dade read in the proceedings. 70In relation to Clause 2.1(b) of the December Will, which has been struck out, Mr Stecher states it was "struck through with handwriting on 23 December 2009 before the Will was executed in order that the will was consistent with instructions" from the deceased. The signatures of the deceased, Ms Dade and Mr Stecher appear nearby. 71There is some handwriting on each page of the original December Will, which Mr Stecher identifies as the signature of the deceased, that of Ms Dade and his own. Circumstances surrounding the initial instructions for the December Will 72I am satisfied that at least the following facts have been established in relation to the circumstances surrounding the initial instructions for the preparation of the December Will. 73The Public Interest Law Clearing House ("PILCH") was a clearing house for matters in the public interest. A referral of the deceased to PILCH was made by the Cancer Patient's Legal Service ("CPLS"), a joint project of the Cancer Council and PILCH. 74PILCH did not act to provide advice, but acted as a referral service. It took general instructions about what the client required and obtained authority from the client to share their details in order to refer the matter. Matters were referred to members of PILCH (solicitors and/or barristers) to provide legal advice and assistance on a pro bono basis. 75On 15 December 2009, Ms Vicki Lowden, a social worker at Nepean Hospital, referred the deceased's circumstances to the CPLS. The person at the CPLS to whom the matter was referred, was Roshana Wikramanayake who, at that time, was on secondment from the Australian Government Solicitor to the CPLS. 76On the same day as the matter was referred to her, Ms Wikramanayake spoke to the deceased, by telephone, and was said to have obtained her consent to provide her details in order to refer the matter to another solicitor. 77It is not suggested that Ms Wikramanayake made any attempt to determine the deceased's capacity at the time, as she believed that the solicitor to whom the matter was to be referred would consider this. (There is a dispute about whether, because of the deceased's medical condition, at that time, the deceased's consent was validly obtained. However, this is a side issue that, in the circumstances, is a matter of peripheral, if any, relevance, in the case.) 78One such firm of solicitors providing pro bono assistance to cancer patients through the CPLS was Thomson Playford Cutlers ("Thomson"). 79A solicitor then, and still, employed at the firm, was Mr Neils Stecher. He had commenced his employment at the firm as a graduate, but not yet admitted, solicitor, in about May 2008. He was admitted as a solicitor in October 2008. 80Neither Ms Lowden nor Ms Wikramanayake gave evidence in this case. Circumstances surrounding the preparation and execution of the December Will 81I am satisfied that the circumstances surrounding the preparation, and the execution, of the December Will, are as follows. I have taken most of the following facts from the affidavit of Mr Stecher, as supplemented by his oral evidence. 82On 16 December 2009, Ms Wikramanayake reported what she had been told to Ms Jane Button, a senior Associate, at Thomson. A copy of her email to Ms Button is in the following terms: "We have a 73 year old lady in Nepean hospital who has cancer and may not live more than a few weeks. She is not receiving any active treatment and is being treated as palliative. Her only wish is to have her body sent to Romania to be buried alongside her husband. She has a will but her son is the executor and sole beneficiary. He has been assessed by the psych team and the hospital as having a personality disorder. He has physically abused our client, stolen her card and tried to withdraw her money from the bank. The doctors and social workers have met with the son who has refused to send our client's body to Romania or act in accordance with her wishes. The will is at her son's house and it is not safe for the social workers to go there. Our client urgently need (sic) a new will, power of attorney and appointment of enduring guardian. She has a friend who is willing to be appointed and carry out her wishes. We have been provided with her friend's name and contact details so it should not be necessary to deal with her son. It is thought that most of the funds in her estate would be required to transport her body to Romania. If there is any small balance left over she would like that to go to her granddaughter, who is a teenager, in Romania. The social worker at the hospital has indicated that the hospital can arrange for a Romanian interpreter to assist the solicitor who attends our client at the hospital as our client does not speak much English. Would you please let me know whether you can assist me with this matter." 83The circumstances that enabled Ms Wikramanayake to provide information about the deceased's testamentary intentions, as set out in the third paragraph of the email, were not explained in the evidence. As stated, she did not give evidence in the proceedings. Her absence is not explained. This is an important omission in the Defendant's case. 84Mr Stecher described the contents of this email as "the starting point of my instructions". 85On the same day, Ms Button responded, by email, that the firm could assist and that Mr Stecher would be carrying out the work under the supervision of Jennifer Cho. A request was made for "the details so that we may commence taking instructions and opening a file". 86Another email, in response, was then sent by Ms Wikramanayake, confirming that the deceased had "lung cancer", confirming the telephone number to call to arrange the appointment, identifying the ward in which the deceased was situated, stating that a Romanian interpreter would be available by arrangement, that the deceased did speak "some English" and identifying the Defendant as "Maria's friend" who "will carry out her wishes". The Defendant's telephone numbers were provided as was the statement "Elena also speaks Romanian". 87On 18 December 2009, Ms Pauline Barber of the Social Work Department of the Nepean Hospital, made an application for the appointment of a guardian and financial manager of the deceased. 88In a document received from the Guardianship Tribunal, identified as "a confirmation of the application you sent to the Guardianship Tribunal", the disability alleged was "metastatic small cell lung cancer with brain mets". 89In addition, the following appears under the heading "Why do you think a guardian is needed?" "Why do you think a guardian is needed? Pt is at high risk of further abuse from her son if discharged home. Due to pt's condition pt vacillates between nursing home placement and wanting to go home. Pt can not manage at home even with services. Pt now needs high level care in a supportive and caring environment." 90Under the heading "Why do you think a financial manager is needed?" the following appears: "Son has stated to social worker he wants his mothers (sic) money, it is his right and why should he have to wait for it. Last admission he wanted to take patient to the bank to take her money out to give to him. On discharge he took patient to his house, took her ATM card and withdrew the maximum amount several days in a row. Pt has saved money put in a trust account to pay for her funeral and to transport body back to Romania to be buried next to her husband. Son has stated he will not do this and will keep the money." 91Under the heading "What attempts have already been made to resolve these problems?" the following appears: "Discussion with son. Patient has asked a close friend to see that her final wishes are carried out as she knows her son will not do this. Friend is willing but does not have authority to patients bank account to carry out her expressed wishes, some of which needs to be done prior to her death." 92Somewhat surprisingly, bearing in mind other information that is available, near the heading "Intellectual Disability", the word "No" appears. 93The source of the information contained in the original application to the Guardianship Tribunal is not made clear by the evidence. 94On 24 December 2009, a representative of the Guardianship Tribunal informed a social worker at Nepean Hospital that the application was listed for hearing on 7 January 2010. 95On 21 December 2009, Mr Stecher had a telephone conversation with Ms Vicki Lowden. He informed her that no one from his office would be available after Wednesday (23 December 2009) until after 10 January 2010 to prepare a Will, Power of Attorney or Appointment of Enduring Guardian. Ms Lowden responded that she would speak with Ms Barber and telephone him later that afternoon. 96Later that day, Ms Lowden's supervisor telephoned Mr Stecher and said: "14. ... "[The deceased] has secondary tumours in the brain and she may not have capacity at the moment, but should be fine in the next day or so. The patient has expressed her intentions as to her will repeatedly." and "I may go through to the Guardianship Tribunal to get a power of attorney and enduring guardian if [the deceased] does not have capacity." ..." 97Other questions were asked about the formal requirements surrounding the execution of the Power of Attorney, to which Mr Stecher responded that he would find out and advise. 98On 22 December 2009, Mr Stecher telephoned the Nepean Hospital. His file note of that date, written just before 5:00 p.m., records "Unable to tell me state of patient". A conference time was arranged for the next day at 6:30 p.m., with an interpreter. 99Mr Stecher, on the same day, and shortly after his telephone conversation with the unidentified person at the Nepean Hospital, also spoke with the Defendant. He said that he would telephone her "in 30 min to discuss will of Mrs Romascu etc". 100Mr Stecher's file note records information that was required for the December Will, including the correct spelling of names and the addresses to be inserted in the deceased's Will. The Defendant provided this information to him. 101After his conversation with the Defendant, Mr Stecher prepared an initial draft of a Will, Power of Attorney and Appointment of Enduring Guardian. He used a precedent form, in each case, although he adapted it to take account of the instructions that he had been given. He acknowledges that the draft, in each case, was based upon the instructions that he had received from PILCH and not from instructions from the deceased. 102It is quite clear that some of the Clauses that were included in the December Will were included without any instructions at all and that they formed part of the precedent Will that Mr Stecher had used. 103On 23 December 2009, Mr Stecher sent an email to Ms Lowden, to which was attached a copy of the "proposed" Will of the deceased, two versions of a Power of Attorney and an Appointment of Enduring Guardian. He confirmed that he would bring a hard copy of each document to the Hospital that evening. 104As at 23 December 2009, Mr Stecher had virtually no experience in will-drafting and succession matters generally. He had not studied the subjects probate and succession as part of his university degree. He had not studied probate and succession law following completion of his degree. He had attended one lunchtime seminar, conducted by his firm, in which will-drafting and associated matters were discussed. He had drafted one, or perhaps two, wills, prior to the December Will. 105Mr Stecher was unaware of the New South Wales Law Society's Client Capacity Guidelines: Civil and Family Law Matters (2003), the Guidelines for Solicitors Preparing an Enduring Power of Attorney (December 2003), or the document also prepared by the Law Society headed "When a client's capacity is in doubt: A Practical Guide for Solicitors". He was unaware of the suggestion made by the Law Society that a medical practitioner ought to be present in the case of a person whose capacity might later be the subject of challenge. He had made no enquiries, or carried out any research, or read articles, or cases, about the sorts of things that a solicitor ought to be looking for when he, or she, attended upon an elderly person in hospital. 106Mr Stecher, other than in the course of the actual day that he attended court for the hearing, had not heard of Banks v Goodfellow [1870] LR 5 QB 549 , and did not know of the propositions for which the case stood. He acknowledged that he had no qualifications, or expertise, in the assessment of capacity of a patient in hospital from whom instructions were taken for the preparation of a will, or who executed a will whilst in hospital. 107Mr Stecher had been involved in one, or perhaps, two, matters involving the preparation and execution of a will. He had attended on one person, in hospital to have a Will executed. 108Prior to attending at the Nepean Hospital, Mr Stecher prepared a file note in which he noted "Matters to be Explained". These were: "Matters to be explained: 1. Will - Family provision claim by son - replacement executor if any - reserve residual beneficiary, if any 2. Power of Attorney - explanation Financial/property matters - enduring power of attorney - mental incapacity - benefit to executor?/son? 3. Appointment of Enduring Guardian - Medical/lifestyle/decisions" 109The reference to "mental incapacity" is clearly a reference to the donor of the power of attorney losing capacity following the grant of the power of attorney. 110I take the following passages dealing with what occurred directly from Mr Stecher's affidavit. The Plaintiff did not suggest that this evidence should be disbelieved: "20. That evening I travelled to Nepean Hospital, arriving at about 6.30 p.m. 21. There I met: (a) Mrs Romascu; (b) Ms Lowden, (c) a Romanian translator named Emil (arranged by Nepean Hospital) (the Translator); (d) Mrs Manolache, and (e) Ms Dade, whom I understood to be a friend of Mrs Romascu and Mrs Manolache. 22. Mrs Romascu was in bed, and I sat down on a chair directly beside her. Also present was the Translator (who was seated to my left), Mrs Manolache and Ms Dade (who were seated on the opposite side of Mrs Romascu's bed to where I was seated). The Translator, Mrs Manolache, Ms Dade and I were present in the room at all times whilst I was taking Mrs Romascu's Will. Ms Lowden periodically left and returned to the room. 23. I had with me the documents that I had emailed to Ms Lowden earlier that day, namely, the draft Will, the draft power of attorney, and the draft appointment of enduring guardian. Execution of the Will 24. All of my subsequent discussion with Mrs Romascu was conducted through the Translator, who would translate my words into Romanian and speak them to Mrs Romascu and then translate her responses in English for me. I do not speak or understand any Romanian. 25. Before explaining the Will to Mrs Romascu and taking her instructions, I said to Mrs Romascu words to the following effect: Me: "This Will is only intended to apply to your assets located in Australia. It will not cover any property you may have in Romania. Our firm does not prepare Wills as a part of our pro-bono service for overseas assets. You will need to make your own arrangements if you want a separate Will to cover your assets outside Australia". Mrs Romascu (through Translator): "OK." 26. Through the Translator, I in turn explained the Will, Power of Attorney and appointment of enduring guardian to Mrs Romascu. 27. In the case of the Will (the first document I explained to Mrs Romascu), I read the prepared Will from its beginning to the Translator, who in turn translated my words into Romanian for Mrs Romascu. 28. I read the Will clause by clause, starting with clause 1, and paused periodically to allow the Translator to translate, and to allow me to confirm her instructions. 29. In response, Mrs Romascu gave instructions in Romanian, which were translated for my benefit by the Translator. 30. In respect of the appointment of an executor, I had a conversation with Mrs Romascu (through the Translator) containing words to the following effect: Me: "You will need to appoint an executor under the Will, who is someone who will carry out your wishes in accordance with the Will. Are you happy to appoint Elena Manolache as your executor? Mrs Romascu (through Translator): "Yes." Me: "Ok. People sometimes like to have a reserve executor in case the principal executor is not willing or does not have capacity to act. Do you want to appoint a reserve executor in case Elena is not willing or does not have capacity to act?" Mrs Romascu (through Translator): "No. Elena can do it." 31. After reading Clause 3 of the Will (Burial) to Mrs Romascu word by word and confirming her instructions, we had a conversation (through the Translator) containing words to the following effect: Me: "Your wish to be buried alongside your husband in Romania is not legally binding on Elena. It can still be left in your will if you want." Mrs Romascu (through Translator): "OK. I still want to leave it in my Will." 32. In respect of Clause 4 of the Will (Residue of My Estate), I had a conversation with Mrs Romascu (through the Translator), containing words to the following effect: Me: "In this will that I have prepared, the money in your estate will first be used to pay your debts, funeral and testamentary expenses, and the costs associated with transferring your body to be buried in Romania to be buried alongside your husband, as well as duties and taxes". Mrs Romascu (through Translator): "Yes." Me: "And you want the remainder of your estate to go to your granddaughter, Andrea-Maria Petrescu?" Mrs Romascu (through Translator): "Yes." Me: "If you die before she turns eighteen, do you want her to get the money when she turns eighteen or earlier?" Mrs Romascu (through Translator): "When she turns eighteen". Me: "If Andrea-Maria does not attain the age of eighteen, who do you want the residue to be paid to? It can be paid to Elena, or someone else. Or it can just be paid to Andrea-Maria however old she is. It is up to you". Mrs Romascu (through Translator): "Just write down Elena." Me: "You need to be aware that as you are leaving your son out of the Will, he may make a family provision claim to challenge the Will" Mrs Romascu (through Translator): "I don't care. I want to leave him out of the Will. He pushed me out of the car hurting me and stole money from my bank account." 33. After I had explained the entire Will to Mrs Romascu, I said to Ms Lowden, who had returned to the room, words to the following effect: Me: "Vicky, we have gone through the Will. Can you please open the draft Will I sent you by email earlier today and delete Clause 2.1 (b) and the words "[need further instructions]" at clause 4(c). Please then print it out and bring it in for us to sign." Ms Lowden: "Ok". 34. Although I do not specifically recall, I have given Ms Lowden the copy of the Will I had with me, on which I may have crossed out clause 2.1 (b) and the words "[need further instructions]" at clause 4(c). 35. A short time later, Ms Lowden returned with a copy of the revised version of the Will. I checked the Will and noticed that whilst she had deleted the words "[need further instructions]" at clause 4(c), she had neglected to delete clause 2.1(b) as instructed. I then struck through with my handwriting clause 2.1(b) on the Will Ms Lowden had just printed and handed to me, and confirmed by reading the remainder of the Will that it was consistent with the draft Will I had read to Mrs Romascu earlier. ... 38. The Will was then dated by writing in "23 rd " on the execution page and signed and attested as I have set out in paragraphs 7 and 8 of this Affidavit." 111Mr Stecher states that he "did not have any concern that [the deceased] might have lacked capacity to understand or execute her Will". He wrote: "36. My recollection is that throughout my reading of the Will, Mrs Romascu was attentive to what was being said to her, responded promptly to the Translator, and that the translated responses were lucid and relevant to the matters I had put to her during the reading of the will and its explanation. I had no doubt that she understood the content and meaning of the Will and the matters we discussed." 112However, Mr Stecher agreed that he did not perform any formal, or informal, assessment of the deceased's cognitive abilities at, or about, the time he discussed the December Will with her. He does not suggest that any qualified medical professional was present when the discussions with the deceased took place, or when she signed the December Will. 113In addition, in his oral evidence, Mr Stecher said: "Q. Am I right in saying that you asked no questions of the deceased about her knowledge of the property that she had? A. I don't specifically remember asking her what property she had, although I was aware at the time that she owned property in Romania. Q. I am trying to find out what you asked the deceased? A. Right. Q. You asked no questions as to what property she had, to the best of your recollection? A. Sitting here today I don't remember whether I asked her the question "what property do you have, what assets do you have". Q. There is nothing in your file note, which you wrote on the way home, which suggests you did, is there? A. Not that I can see, no. I didn't make a file note. Q. There is nothing in the file note, which you wrote in your office before you went to the hospital, about ascertaining what property she had from her, is that right? A. No, I didn't make a file note. Q. Did you ask any questions of the deceased as to who were the persons who she regarded as having claims on her bounty? A. I did not ask her if she had any other children, no. Q. Did you make any inquiry of her whether she had another will? A. I explained to her that the December 2009 will would take precedent over any earlier will that she had, although I did not ask specifically "have you prepared an earlier will". Q. And I take it from that answer that you did not know whether she had an earlier will otherwise? A. No I did know. Q. You knew? A. Based on the e-mail referred to earlier. Q. And finally, other than her telling you what her son had done that was negative "he pushed me out of the car, he stole money from me" according to your note in your affidavit, did you ask her any questions about any claim otherwise that he might have on her bounty? In other words did you inquire--? A. Whether she owed him money, that type of thing? Q. Whether he looked after her in any way, whether he took her to medical appointments, whether he took her food shopping? A. No, I didn't ask those types of questions. Q. And did you ask her any questions about her granddaughter? A. I asked her if she wanted the residue of the estate to go to her granddaughter. I confirmed the spelling of the granddaughter's name. I asked her if she wanted the residue to pass to her granddaughter upon the granddaughter reaching the age of 18 or earlier. Apart from that-- Q. Did you ask any questions about her granddaughter's claim on the bounty, whether she knew her granddaughter, whether she had met her, how many times, whether they had a close relationship, anything like that? A. No I didn't, no. Q. Did you actually use the word "residue"? A. Yes, I am pretty sure I would have used that word, yes. Q. Did you explain what it meant? A. Yes. Q. And what did you say? A. I said to her that "your will, if you wish to, could provide for what would happen to any money that is left over after the expense of having your body buried in Romania is paid". 114It is important to note that there is no evidence of Mr Stecher having any conversation with the deceased about the contents of Clause 5 of the December Will relating to the trustees and their powers. 115It is also not disputed that, omitted from the affidavit, is any recording of the conversation that Mr Stecher had with the deceased about the Power of Attorney and the appointment of the enduring guardian. It was submitted that the conversation "was not relevant to the matters in issue". I disagree. 116It circumstances such as these, the Court considers the questions to be determined, considering the whole of what occurred at the time of execution of the testamentary document. 117Following the attendance upon the deceased, whilst on his return to Sydney (in the train), Mr Stecher prepared the following file note: "Nepean Hospital Mrs Romascu Elena Emil (translator) Mrs Romascu in palliative Vicki Lowden (social worker) Copies of Will, Power of Attorney & friend of Elena & Appointment of Enduring Guardian left with Elena Re Will 1. Explained Family Provision Claim issues to Mrs Romascu (through translator). Elena also aware of these issues 2. Testator content to leave son, Adrian Romascu out of will. 3. Elena to be sole executor no reserve executor 4. Residue to granddaughter then to Elena 5. Explain that burial wish not legally binding on executor Testator signed each page of Will, incl the amendment on page 2." 118Emile Keller, the interpreter and translator of the English language into the Romanian language and the Romanian language into the English language, also swore an affidavit. He recognised the deceased as, coincidentally, he had met with her late husband on several occasions. 119I take the following directly from Mr Keller's affidavit: "... 8. With Mrs Romascu when I attended her bedside on 23 December 2009 were a social worker, the Defendant Elena Manolache, Angela Dade and a solicitor Mr Stecher. 9. Mr Stecher had some documents with him. [There is no paragraph 10] 11. At Mr Stecher's request, I said to Mrs Romascu in Romanian words to the effect: "A solicitor, Mr Stecher, is here with your will, and I am here to translate it for you, as it is in English. Is that alright?" Mrs Romascu replied, "Yes", which I translated to Mr Stecher. 12. Mr Stecher then said to Mrs Romascu in English, and I translated to her in Romanian, words to the effect, "This will is only to apply to your assets in Australia and not your assets in Romania. My firm does not prepare wills for overseas assets on a pro bono basis. If you want to make a will about your assets outside Australia, you will have to make other arrangements." Mrs Romascu replied, "I understand", which I translated to Mr Stecher. 13. Mr Stecher then read aloud Mrs Romascu's will, ... ("the Will"). Each time that he paused I translated what he had just read in English to Mrs Romascu in Romanian, and I then translated her responses, "OK" or "I understand" in Romanian, to Mr Stecher in English. 14. Mr Stecher then said to Mrs Romascu in English, and I translated to her in Romanian, words to the effect, "You will need to appoint an executor in your will. That is a person who is to carry out the wishes you express in your will. Are you happy to appoint Elena Manolache your executor?" 15. Mrs Romascu replied, "Yes", which I translated to Mr Stecher. 16. Mr Stecher then said to Mrs Romascu in English, and I translated to her in Romanian, words to the effect, "People sometimes like to have a reserve executor just in case the principal executor is not willing or does not have capacity to act. Do you want to appoint a reserve executor in case Elena is not willing or does not have the capacity to act?" 17. Mrs Romascu replied, "No, Elena can do it", which I translated to Mr Stecher. 18. Mr Stecher then read aloud the words in the will dealing with Mrs Romascu's burial, which I translated to Mrs Romascu in Romanian. Mrs Romascu replied, "Yes, that is what I want", which I translated to Mr Stecher, who then said, "Your wish to be buried alongside your husband in Romania is not legally binding on Elena. It can still be left in your will if you want." 20. I translated those words to Mrs Romascu in Romanian, and she replied, "OK. I still want to leave it in my will", which I translated to Mr Stecher. 21. Mr Stecher then said in English, and I translated to Mrs Romascu in Romanian, words to the effect, "Under this will that I have prepared, the money in your estate will first be used to pay your debts, funeral and testamentary expenses, and the costs associated with transferring your body to be buried in Romania alongside your husband, as well as all duties and taxes." Mrs Romascu replied, "Yes", which I translated to Mr Stecher. 22. Mr Stecher then asked in English, and I translated to Mrs Romascu in Romanian, words to the effect, "And you want the remainder of your estate to go to your granddaughter, Andrea-Maria Petrescu? 23. Mrs Romascu replied, "Yes", which I translated to Mr Stecher. 24. Mr Stecher then said in English, and I translated to Mrs Romascu in Romanian, words to the effect, "If you die before she turns eighteen, do you want her to get the money when she turns eighteen, or earlier? Mrs Romascu replied, "When she turns eighteen", which I translated to Mr Stecher. 25. Mr Stecher then said in English, and I translated to Mrs Romascu in Romanian, words to the effect, "If Andrea-Maria does not attain the age of eighteen years, who do you want the residue to be paid to? It can be paid to Elena or someone else. Or it can just be paid to Andrea-Maria, however old she is. It is up to you". 26. Mrs Romascu replied, "Just write down Elena", which I translated to Mr Stecher. 27. Mr Stecher then said in English, and I translated to Mrs Romascu in Romanian, words to the effect, "You need to be aware that as you are leaving your son out of your will, he may challenge it by making a family provision claim." 28. Mrs Romascu replied in words to the effect, "I don't care, I want to leave him out of my will. He pushed me out of the car, hurt me, and stole money from my bank account". I translated these words to Mr Stecher. 29. Mr Stecher then read aloud the remaining clauses of the Will, which I translated to Mrs Romascu from English into Romanian, and then translated her responses to Mr Stecher from Romanian into English." 120It seems clear from the version of events given by both Mr Stecher and by him, that Mr Keller adopted consecutive interpretation, meaning that he translated after Mr Stecher, or the deceased, spoke. This form of interpreting would have required Mr Keller to listen carefully to what each said and to remember what had been said. 121The Defendant gives evidence of what occurred also. She confirms that the December Will was read to the deceased by Mr Stecher in English, pausing during the reading to enable Mr Keller to translate into the Romanian language what had been said by him. She states that the reading, translation and responses, "took considerable time" and that the deceased "was attentive and lucid throughout the readings and she responded clearly and relevantly to matters which Mr Stecher put" to her. 122As I have earlier recorded, Ms Dade did not give evidence. 123Finally, patient records dated 23 December 2009, at 8:45 p.m., apparently written by Ms Lowden, state: "Meeting with pt - Maria Romascu re legal issues. Present : Pt Solicitor: Neils Social Worker: Vicki Interpreter: Emile Friend: Elena Friend: Angela Purpose of meeting . Pt to formalise a new Will, Power of Attorney and Enduring Guardianship. Outcome : All documents completed. Pt's friend Elena Manaolache is now Executor of Will, Power of Attorney and Enduring Guardian for Maria. A copy of the POA and Enduring Guardian Order is on the pt's file. Issues identified: 1. Adrian has said to pt and friends that he plans to take pt from hospital ? indefinite or for Christmas. Pt told SW and Elena she did not want this to happen. SW talked to pt about possible need for ? police and/or AVO if Adrian's behaviour toward her is abusive or attempts to take her from the hospital. SW will d/w snr SW Pauline. Pt agrees with same. Plans : 1. Pt for NH placement (3020 completed) snr SW Pauline to continue with pt and E? re NH placement." 124Also, as recorded earlier, none of the persons to whom the deceased is said to have given initial instructions for a Will gave evidence. Accordingly, the court knows very little about the circumstances in which instructions were given. The Medical Evidence 125The Death Certificate of the deceased indicates that the causes of the deceased's death were metastatic small cell lung cancer and ischaemic heart disease. 126A number of contemporaneous written medical records were annexed to the Plaintiff's affidavits, or tendered as a bundle of medical records, including a letter dated 15 March 2010 from Dr Way, a patient advice card, dated 21 July 2009, from the Ambulance Service, a discharge summary dated 2 October 2009 relating to the deceased's hospitalisation, at or about that time, the clinical notes from the Sydney West Area Health Service covering the period of the deceased's hospitalisation in December 2009, and a medical report dated 24 December 2009 of Dr Emma Jane Dickens addressed "To Whom it May Concern". 127In a document dated 15 March 2010, Dr Raymond Tint Way, a consultant Psychiatrist and Psychotherapist stated: "This is to certify that Mrs Romascu first came to see me in December 2002, when I diagnosed her with major depression with generalised anxiety disorder. Mrs. Romascu continued under my care, initially attending on a regular basis but more recently becoming less frequent. I treated her for recurrent major depression. Her last session with me was on 16 November 2009 when she was accompanied by her son. She reported that she had been diagnosed with and received treatment for small cell carcinoma of the lungs at Nepean Hospital. She also reported that her lung cancer had metastasised to the brain." 128The deceased was brought to Nepean Hospital Emergency Department by ambulance on 8 December 2009. She had suffered a fall at home several days earlier and presented with ongoing thoracic pain, dizziness and an unsteady gait. She was, initially, admitted to the respiratory ward where her thoracic pain was investigated. A full body scan revealed multiple metastases throughout her body. She was transferred to the palliative care ward. 129I have also read two reports of Dr John E McMahon, a clinical psychologist, called by the Plaintiff, the first report dated 24 October 2010, and the second dated 18 October 2011. There was no dispute that he was qualified to offer the opinion that he did on the basis of facts observed or assumed that were admissibly established, and that it had been shown how the field in which he was an expert applied to those facts so as to produce his opinion. 130I have taken what follows from these reports because each accurately records information contained in the medical records of the deceased at, or about, the date of the December Will. I also refer to part of his oral evidence. (a) The deceased had excision of a cerebellar brain lesion in August 2009. (b) A letter dated 20 July 2009, from Dr M Noel, a medical practitioner under whose care the deceased then was, outlines that the deceased was "terminally unwell and, today, does not have capacity to make significant decisions". (c) The deceased suffered "metastatic lung cancer" with surgery in September 2009 for "cerebeller secondary" ... "lesion". Consistent with surgery, there was evidence on a CT scan of the brain of a "Craniotomy ... at the posterior part of the right side of the posterior cranial fossa". The CT scan further evidenced "irregular peripheral enhancements" at the "left parietal lobe at the periventricular region", "the left occipital lobe", "the right frontal lobe, left parietal lobe, and left posterior lobe are associated with vasogenic oedema" and were "consistent with metastasis". (d) A letter dated 23 October 2009, from Dr Atapattu, outlines that the deceased required further assessment of her cognitive status and that a hospital stay was recommended. (e) In the Clinical Notes dated 8 December 2009, by Emergency Department Registrar Dr V Tioukavein, the deceased was "alter/oriented" and suffered "depression". Nursing review at admission reports that her Glasgow Coma Scale Score was 15, which is consistent with normal range alertness, orientation, and response to external stimuli. (Dr McMahon stated that this did not mean that the deceased did not have cognitive impairment.) (f) The Glasgow Coma Scale is a measure of a person's immediate capacity to deal with his, or her, environmental surroundings. People with a Glasgow Coma Scale Score of 15 may still have diminished capacity. (g) The Clinical Notes reveal that the deceased was often unsettled and/or agitated. (h) According to entry in the Clinical Notes by Nursing staff on 9 December 2009, the deceased was confused and "wanting to ring police because "N[ursing] S[taff] wouldn't want her to go home" and she was administered the sedative temazepam and the antipsychotic medication haloperidol "with effect". Temazepam is a sedative that has the effect of making the patient drowsy, whilst haloperidol is a long acting tranquilliser. At other times, the deceased was given midazolam, which is also a sedative type of medication, and was treated with Seroquel, another type of anti-psychotic medication. The latter drug could cause a number of different side effects, including memory disturbances. If she became agitated, it could level those symptoms out and cause slowing of the thought process. (i) On 15 December 2009, in the clinical notes, a review by Psychiatric Registrar, Dr Charni, noted that the deceased remembered the "events in logical order" regarding her admission, but had "significant behavioural disturbances". She was described as oriented to time, place and person, with "OK" attention and concentration but with "Limited" "insight and judgment into [her] medical condition". However, the notes also record that she stated that she was "not crazy" and that she believed that the geriatric unit was "mental jail". (j) Some of the behavioural disturbances recorded suggested that other higher order cognitive functions were not intact. (k) A review of the Mental Status sections of the nursing care plans in the Clinical Notes of Nepean Hospital Records record that from 13 December to 20 December 2010 the deceased was observed to be "confused", variously "co-operative" and "unco-operative". (l) The extract of Hospital Notes dated 16 December 2009 includes an entry by Registered Nurse Wilson that Dr Noel had concluded that the deceased was not well enough to complete the paper work to appoint a financial manager through the guardianship board. (m) The extract of Hospital Notes dated 18 December 2009 by Dr Noel states that "due to lack of insight & lack of capacity together with conflict with son, will need to proceed with guardianship". (n) On 21 December 2010, the deceased was observed to be "confused", "drowsy", "unco-operative", and that she "can be hostile". (o) On 22 December 2010, the deceased was observed to be "confused", "drowsy", "unco-operative", and again that she "can be hostile". (p) On 24 December 2009, there is a notation (at 3:00 p.m.) that states: "Had trouble - processing information - word finding - executive function ... Compared from last review this time she appears to be (sic) marked cognitive impairment. She was struggling to understand the questions and answers appropriately... Impression - marked cognitive decline" (q) A letter dated 24 December 2009, from Dr Emma Jane Dickens, a Medical Officer at Nepean Hospital, records that the deceased had metastasis of her pulmonary cancer in her brain and adrenal glands. It concluded she had "limited mental capacity" after review by a Clinical Psychiatrist, Palliative Physician, and Neuropsychologist. It also stated "All reversible causes for her impaired mental capacity have been excluded and it is believed her cognitive impairment, personality change, and lack of insight are due to her brain metastasis". (r) Medication charts reveal that morphine was administered on 23 December 2009 at three times (00:35; 09:15; and 13:15) and that clonazepam (a sedative type medication) was administered on 23 December 2009. Expert's Conclusions 131In his first report, Dr McMahon, having read medical notes, reports and patient records, concluded: (a) In December 2009, there was clear evidence of a lack of insight regarding her medical state at times when she wanted to return home, but she had an appreciation of her imminent death; (b) There was some evidence of the deceased suffering psychosis-like mental disturbance, including some pseudohallucination of misperceiving marks on a wall as spiders (on 8 December 2009); (c) There was some evidence of paranoid ideation (including that she accused and maintained that nursing staff had taken $300, which amount was later found to be locked in a safe); she required atypical neuroleptic medication; (d) There was clear evidence of behavioural disturbance; (e) Prior to her hospitalization and in August 2009, the fact that she had been discharged home indicated that she then had enough adaptive functioning to get by in her daily life. She had the capacity to do some things. 132In relation to the radiological evidence, Dr McMahon concluded: "Lesion studies reveal that the left parietal lobe is associated with a disturbance of nonverbal symbolization such as gestural defects or inability to demonstrate an activity in pantomime or to comprehend pantomimed activity such as the 'thumbs up' signal or 'hitch hiking' gesture. ... Deficits in the ability to write and calculate can also be associated with such lesions due to the organizational and symbolic aspects of these activities loading on neural networks in this region. Lesions of the left occipital cortex are associated with impaired visual recognition, organization and scanning, and can cause defects in reading and colour recognition; that is the functional interactions between verbal and visual representations. ... The right frontal lobe is associated with a complex array of abilities in different domains including sustained attention, response preparation and inhibition, quantitative reasoning, motor sequencing, visual organization and nonverbal memory. ... The right frontal lobe is associated with regulating primary emotional expression, facial gestures, body gestures and speech intonation. Problems with the sub-cortical aspects of the right frontal regions would cause a slowing and impairment of these functions. It is common for people with right frontal deficits to have difficulty interpreting abstract meaning in communication and exhibit difficulty with comprehension of metaphor. They also have difficulty with producing concise, cohesive discourse and often have difficulty formulating ideas. The lateral right basal ganglion is associated with irritability and disinhibition, and neglect for objects on the left. The pons is associated with kinaesthetic, or muscle movement sense, type information and regulating motor impulses. Lesions in the pons are associated with motor, sensory and coordination disorders ... her gross behavioural presentation and neurological features were consistent with the radiological evidence." 133Dr McMahon, in his second report, concluded: "... on the 24 th December 2009 Mrs. Romascu clearly lacked testamentary capacity, and was cognitively impaired ... In the days prior to the 24 th of December 2009 Mrs. Romascu was significantly behaviourally disturbed, however, she was able to express her preferences and, when not acutely affected by sedative or analgesic medication would have had capacity to make decisions. However, there is no evidence regarding if she would be able to understand the nature and effect of the document when explained to her, or if she was able to communicate this back to the explainer." 134In cross-examination, Dr McMahon was referred by counsel for the Defendant to paragraph 20, and then other paragraphs, of Mr Stecher's affidavit relating to events that occurred prior to execution of the Will and it was put to him that "all of that indicates that she was responding coherently and appropriately to Mr Stecher". He responded: "In the moment to moment she was able to express preferences, that is not necessarily the same as her having full comprehension of the matters that are at hand and if she could explain those in response to an open-ended question that would show, provide more to the fact that she has that full comprehensive understanding. From what I can glean from the affidavit she responded either in the affirmative or not in response to very tightly structured things that were put to her. That is different from her giving an open comprehensive response which she has generated herself." 135In relation to making no provision for the Plaintiff, Dr McMahon agreed that it was a strongly expressed preference, which did not mean that she was able to understand all of the contents of the December Will. 136Dr McMahon said that there was evidence of cognitive impairment. He used, by way of an example, the reference to the deceased: ""hostile - can be", that she was responding in a hostile way towards people who were providing her care, you could construe she was misconstruing the social circumstances and that would be, cognitive impairment associated with the front medial node, how we mediate social interactions. We cannot conclude on the basis of her being alert, co-operative and "hostile - can be" that she didn't have cognitive impairment, especially seeing there is the present radiological evidence of these problems with her brain and the behaviour elements contained in the various psycho-pharmaceuticals she was prescribed." 137In relation to the deceased refusing the appointment of an alternate executor, Dr McMahon said: "I would say the response to that question would show a lack of insight because she cannot see it is more opportune to have a second executor. If she had a second executor that would limit the risk of her will not being carried out to her satisfaction so to elect to have a second executor would go towards having a full comprehension of the role and of that particular- - Q. If the lady said "no Elena can do it", why doesn't that indicate she has made the decision she is confident in the capacity of her choosing an executor to fulfil the duty? A. Because it fails to appreciate that having a, the first, something could go wrong with Elena, that is what is having a second executor about all about- her appreciation is no, I just want Elena to do it - I am mind reading here, I am kind of putting myself in her position - these are all assumptions, that she has not recognised that something could go wrong with Elena means she lacks that capacity for that more abstract level of reasoning." 138Dr McMahon stated that monosyllabic answers to questions did not give him a basis for concluding that the deceased had an actual appreciation of what was being discussed with her. 139I remember, of course, in relation to Dr McMahon's evidence, the disadvantage that he has in not having met, or carried out any testing on, the deceased. I have also borne in mind the submissions made by counsel for the Defendant as to the utility of the reports and the weight of each. 140Nonetheless, I found his assistance, in particular in summarizing the medical records, explaining some of the contents, identifying the medical conditions from which the deceased suffered at the time she executed the December Will, and how the condition might affect testamentary capacity, to be of some value. Lay Evidence about the deceased's Condition 141The Plaintiff gives evidence that shortly after the deceased was admitted to the Nepean Hospital in December 2009, he observed a doctor holding up his hand and requesting her to identify the number of fingers she had seen. He says that the deceased was unable to answer correctly. He also says that he used this "test" every time he came to see her, and that she was unable, on any occasion, to correctly identify the number of fingers he had held up. 142He states that on 23 December 2009, when he visited her in the morning, he observed that the deceased was unable to move one of her eyes, which appeared to be pointed to the side. He says that as time passed, she was unable to see the spoon he was holding to feed her. He also says that when he talked to her, the answers were monosyllabic, most of the time. 143He also found that she appeared unable to see out of the eye, which was pointing outwards. She was unable to sit straight in bed. She had difficulty raising her arm to scratch her nose. 144The Plaintiff read an affidavit from Gabriela Muller, who had known the deceased since about 1999, in which she set out her observations of the deceased when she visited her in the Nepean Hospital on 23 December 2009. 145Ms Muller said that the deceased "could barely recognise me". She said that she took some Romanian food with her to leave for the deceased but she was required to feed the deceased, because the deceased's co-ordination was very poor, evidenced by her trying to push the cake into her ear. The deceased apparently thought that she was in a hospital in Bucharest, Romania and that she was waiting for her husband to come and take her home. When Ms Muller told the deceased that her husband was dead, the deceased said that was not so and that he had been sitting on a chair in the room a minute before, and that she could see him walking backwards and forwards in the hallway. Ms Muller looked in the hallway but could not see anyone resembling the deceased's husband. 146I shall return to Ms Muller later in these reasons. Some matters in Issue 147It is necessary to refer to the evidence of the Plaintiff and the Defendant on matters in dispute between them. 148There is some evidence, in the medical records, although tendered by the Plaintiff, which was the subject of some dispute by him. The evidence, the subject of dispute, included the statement made to the effect that the Plaintiff had, himself, been a patient at the Nepean Hospital and that he was suffering from some sort of psychological problem. 149The Plaintiff gave evidence that he had never attended the Nepean Hospital as a patient. He tendered a written statement dated 28 March 2011, from the Health Information Release Manager of the Hospital that stated: "This is to confirm that [the Plaintiff] has never attended Nepean Hospital, Penrith, for treatment and does not have a Nepean Hospital medical record as of this date." 150There is no reason to disbelieve this evidence. 151More important, however, was the Plaintiff's response to what the deceased had said about him to the solicitor and to others. In relation to the Plaintiff pushing the deceased out of the car, I found the Plaintiff to be extremely evasive. When it was put to him that he had pushed the deceased out of the car, he denied that he did so. He added that if she was pushed out of the car, it was not by him. 152He then stated that he thought that the event being spoken of by the deceased had occurred in 2005. On that occasion, Ms Muller had been driving the car, the Plaintiff was a passenger in the front seat and the deceased had been sitting in the back seat of the car. He said that the deceased had tried to strike Ms Muller with a bottle. When this occurred, Ms Muller stopped the car. The deceased was let out and the car drove away. After a few minutes, the Plaintiff and Ms Muller returned in the car and found the deceased surrounded by some passers by and an ambulance. They heard the deceased shouting. Rather than attending to her, they drove away to the Plaintiff's home. When they returned some time later, the deceased was no longer there. 153Ms Muller, who had been in court throughout most, if not all, of the proceedings, and who was in court whilst the evidence was being given, did not subsequently give evidence, although counsel for the Defendant expressly suggested that, perhaps, the Plaintiff might like to call her in reply. The Plaintiff did not. 154The second matter related to the Plaintiff taking money from the deceased's bank account. The Plaintiff accepted that, on occasions, he had taken money from the deceased's bank account, by using her card to withdraw money. However, he said, that on any occasion that he did so, the deceased approved the withdrawal. On most of the occasions, when moneys were withdrawn, she was with him. 155It was accepted that there was no objective evidence to otherwise support the deceased's assertion. All that can be said is that the deceased believed that he was withdrawing money from her account. 156I am satisfied that the Plaintiff had stated to a social worker, perhaps Ms Barber, that he wanted access to the deceased's money and that despite her wish to be buried next to her husband, he would not transport her body back to Romania. I have reached this view because there is a social worker's report dated 23 December 2009 in which these matters are stated and because the Plaintiff gave evidence that he was the only person authorised to bury the deceased's body in the plot where his father was buried and that the Defendant could not do so without his consent. He did not assert that consent had been given. 157Furthermore, in his "Cross-Defence" the Plaintiff refers to the solicitors' "active role of facilitating their client being dumped on someone else's property with complete disregard of the consequences" and that he "as the owner of the family grave referred to by the [December] will was to be completely deprived of the estate while having instead long term future expenses and liability forced upon [him]". 158The Defendant was cross-examined about what was said by her to have been a gift of $10,000. Importantly, it was the deceased who transferred the amount in the term deposit into the Defendant's account. The Defendant provided the deceased with her bank account details, but she did not play any part in organising the transfer of the amount to that account. 159The attempts made by the Plaintiff to obtain, on subpoena, from the Westpac Bank, documents relevant to the termination of the deceased's term deposit and the transfer of the funds from the deceased's account to the Defendant's account proved unsuccessful. 160In my view, there is no evidentiary basis for the Plaintiff's assertion that the deceased made the payment of $10,000 to the Defendant as an advance payment of funeral expenses. He did not assert that the deceased had told him that, or provide any other reason for his assertion. 161I also accept that the Defendant had nothing to do with the transfer of an amount of $30 that is shown as having been transferred into her account. It appears to have been transferred by the deceased's bank. 162In the circumstances, I do not accept that the amounts were transferred from part of the estate of the deceased. I accept the Defendant's evidence that the amounts transferred by the deceased were gifted to her. 163The Plaintiff achieved partial success in relation to the withdrawal of $2,000, by the Defendant. That success relates to four amounts totalling about $477, which amounts the Defendant agreed she paid to herself, following the death of the deceased, and which were acknowledged not to be expenses of the deceased. I am not satisfied that they should have been paid to the Defendant out of the estate and these amounts should, in due course, be repaid to the estate or taken into account otherwise. 164In order to save time and costs, bearing in mind the amount, I shall treat an amount of $500 (inclusive of interest) as being repayable to the estate. Whether the Defendant is actually required to repay that amount will only be able to be determined after the argument about costs has been heard and determined. 165Overall, this is a case where the evidence to determine the principal issues has been established clearly. No issues of credit, other than those to which I have referred, arise. Solicitor's Duties in Will-Making 166Because it played a major part in the case, I am compelled to say something about the duties of a solicitor who takes instructions for, and who is involved in, the execution of a Will. I have stated these principles, recently, in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275. However, for the benefit of the parties in these proceedings, I shall restate what I said there, with additional principles, where necessary. 167It is trite that a solicitor taking instructions for a Will has a duty to ensure that the person giving instructions has testamentary capacity and is giving instructions freely and voluntarily. 168In Jarman on Wills , London, Sweet and Maxwell, 8th ed, 1951, Vol. 3, page 2073, it is said: "Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills." 169In Pates v Craig; The Estate of Cole (28 August, 1995, unreported), Santow J, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour said: "There do not appear to be rules of professional conduct specifically governing the first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever 'associate' may mean it probably falls short of including a conventional solicitor/client relationship. Reg 28 of the old Legal Profession Regulation, 1987, is to a similar effect. That does not, however, mean that no ethical considerations arise in such circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v Mikrelsen (Supreme Court of NSW, 3 October, 1974, unreported), in the analogous context of conveyancing transactions: 'The reasonable expectations of a client instructing a solicitor [is] that the solicitor will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of another party. [The client] should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself.' The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his, or her, favour and the interests of the testator. The testator should be assisted by his legal or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances, the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is a reason to fear lack of testamentary capacity on the part of the testator by reason such as fragility, illness or advanced age. Further, in such context, the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent... There is an additional consideration, not dependent on the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical checklist approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned, on the alert. At the least, the solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity... For this purpose, and subject to the earlier caveat concerning checklists, the advice concerning the taking of instructions contained in Mason & Handler's "Wills, Probate and Administration Service NSW (Butterworths) [at 10,019] is a useful guide: 'If any doubts do rise as to the testator's capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties: 1. The solicitor who is to draw the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect; 2. One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify whether the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testator's consent; 3. A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present. If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who took instructions to draw the will and be present on execution and this practice should not be departed from in these circumstances. On execution, the attesting witnesses should, where possible, come from those persons (including the solicitor) referred to above who are present at the time of instructions and, again, as at every stage, detailed notes of the events and discussions taken.' If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted." 170Although not necessary regarded as a "golden rule" in Australia, some authority suggests that it would be prudent for a solicitor to obtain a medical opinion as to the deceased's medical condition and effect on his, or her, capacity, before making a new will for an elderly client where there is a doubt about testamentary capacity, see, for example: Fradgley v Pocklington (No 2) [2011] QSC 355 at [28]. This is no more than a recommendation for good practice. 171Where, as in this case, the solicitor is aware, prior to meeting with the deceased that there is a potential issue as to capacity, the statement that should be borne in mind is found in a Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98, of Kroft J in the Manitoba Court of Queen's Bench, in which (at 107) it was said: "Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood." 172In Nicholson v Knaggs [2009] VSC 64, Vickery J, at [387], recommended a "considered and appropriately structured interview with the testatrix" and emphasized that "in order to establish knowledge and approval of a will by a testator, more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him". 173In Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47], White J said: "As is said in Charles Rowland, Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]: Where the solicitor is drafting a will and there is any possibility that the testator's capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests at the front of her or his mind." Grant of Probate 174Wills can be proved in two ways; being in common form or in solemn form. A grant, in whichever form it takes, is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SASR 394 at 398. The power to grant probate of a will vests in the Supreme Court. 175A grant in common form is the result of non-contentious proceedings where the validity of the will is not contested. In that case, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147 at [35]. It has been described as an interlocutory order. It is usually made on the basis of affidavit evidence, and in the absence of interested parties, by the Registrar exercising the powers of the court. 176It is open to a court exercising probate jurisdiction to revoke the grant, at any time, upon a proper case being established: Richardson v Rearden [2006] NSWSC 1252 at [16]. 177Where, as in this case, the court is made aware of the existence of a possible later valid will, the practice is not to determine issues of testamentary capacity in common form probate proceedings but to require the matter to proceed by pleadings in which probate in solemn form of each will is sought. A grant in solemn form is usually the result of such contentious proceedings. The will is propounded in the action to which persons, interested under another will, or on intestacy, are made parties (or are cited to see the proceedings) and for the validity of which the court pronounces after hearing the evidence: In the Estate of Kirs (1990) 55 SASR 61. 178The party seeking the grant should ensure that every person with an interest in the outcome of the proceedings has been notified and been given an opportunity to be heard: In the Estate of Nicola Alvaro (deceased); Public Trustee v Alvaro [1995] SASC 5183; (1995) 182 LSJS 383 at [21]. This is achieved by issuing a citation to such person or persons. 179In the case of probate in solemn form (with some notable exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant) the grant of probate is irrevocable: Young v Holloway [1895] P 87; Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153). Such a grant is conclusive between the parties except in cases of fraud or subsequent discovery of a later will: Edwards v Boyd (1958) 75 WN (NSW) 525 at 527; Virginie-Pitel v Campbell; Campbell v Virginie-Pitel [2010] NSWSC 1440 at [27]. 180In order to obtain a grant of probate in solemn form, the propounder of the Will, must establish that the deceased had capacity at the relevant time to make a will, that she or he had the intention, by the instrument, to make a will, and that she or he knew and approved of the contents of the instrument: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed) (1989) [301]; Bailey v Bailey (1924) 34 CLR 558. 181The propounder of the will must call at least one of the attesting witnesses to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185; Kovacs v Public Trustee [2006] SASC 1 at [10]. 182Usually, in contested probate proceedings, both attesting witnesses are called, as well as the author of the Will being propounded. In this case, in relation to the December Will, only the solicitor who took instructions for, and who attested to the deceased's signature on, that Will, was cross-examined. The second attesting witness did not swear an affidavit. The interpreter was unable to attend for cross-examination. 183The task of the Probate court in contested Probate proceedings is to determine which is the last valid will of the deceased. Relevantly, in the present case, one focus of the enquiry is to ascertain whether the deceased suffered from any medical conditions that affected her, or his, capacity to make a will. Another is upon the process by which the disputed document, which it is sought to admit to proof, was produced. Testamentary Capacity 184The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties, so it is unnecessary to set out the principles in any detail. 185I repeat what Powell J (as his Honour then was) stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at pp 704-707: "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows:- 1. The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the Court is bound to pronounce against the document; 2. This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. The proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator; 5. The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. Where, what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way ... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. A testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. A testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature. 9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. Facts which may well cause suspicion to attach to document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; (c) where the testator executes the document as a marksman when he is not; 11. Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator, is as a general rule, conclusive evidence that he knew and approved of its contents; 12. The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow in which case His Lordship said:- 'It is essential to the exercise of such a power (scil, 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 delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.' 13. The test of what the law, in this context, at least, regards as 'a disease of the mind' or 'an insane delusion', was discussed by Sir J.P. Wilde in Smith v Tebbitt in which case his Lordship said:- 'It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and may therefore be called 'delusive'. But what I want to convey on this head is this; that the question of insanity and the question of 'delusions' is really one and the same - that the only delusions which prove insanity are insane delusions - and that the broad enquiry into mental health or disease cannot, in all cases, be either narrowed or determined by any previous or substituted enquiry into the existence of what are called 'delusions'.' ... 14. 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; sanity is to be presumed until the contrary is shown. 15. Facts which, if established, will provide evidence to the contrary include: (a) the exclusion of persons naturally having a claim on the testator's bounty; (b) extreme age or sickness or alcoholism; 16. In relation to the former of these two matters, however it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker , the following passage appears:- ... 'The question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share in his property. If he had not the capacity required, the propriety of the disposition made by the will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition though the justice or injustice might cast some light upon the question as to his capacity.' 17. However, 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." (citations omitted) 186In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at [289 - 290], Gleeson CJ (as his Honour then was) said: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted ( Worth v Clasohm (1952) 86 CLR 439). This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. 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." 187In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig , at [65]: "It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question." 188As it was heavily relied upon by counsel for the Defendant, I should also refer to Bailey v Bailey at 570 - 572, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant: "... 5. A man may freely make his testament, how old soever he may be, for it is not the integrity of the body, but of the mind, that is requisite in testaments. 6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances 7. As instances of such material circumstances may be mentioned - (a) The nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries... (b) The exclusion of persons naturally having a claim upon the testator ... c) Extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence, taking a substantial benefit ... 8. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof 9. To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property ..." 189The statement of principle in Banks v Goodfellow has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059 at [82] and [66]. It has also been described as the 'classical exposition': Hardingham, Neave & Ford at [306]). 190It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings". 191In Re Griffith; Easter v Griffith , Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed." 192In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97]; Brown v Wade [2010] WASC 367, at [95] - [96]. 193Where in the light of medical evidence it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the deceased's mental state did not influence the Will: Bull v Fulton (1942) 66 CLR 295. 194I also note that in Bool v Bool [1941] St R Qd 26, 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation." 195As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time she, or he, gave instructions for the will, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see Hardingham, Neave & Ford at [308]. Where, however, as here, the instructions were not given by the deceased directly to the solicitor, the relevant date is that of the execution of the will, unless the court can be satisfied there is no ground for suspicion, and there are unambiguous instructions to the intermediary clearly understood by that person and faithful reporting of the instructions correctly understood by the solicitor: Hardingham, Neave & Ford at [308]; Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152, 168 - 169; Brown v Wade at [99]. 196A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate. 197As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." 198In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the December Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Mr Stecher prior to that time): Smith v Tebbitt (1867) L.R. 1 P&D 398, 436-7. Mr Stecher agreed that it was only on 23 December 2009 that he sought instructions directly from the deceased. 199Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3 P&D 64 at 67. It is a question determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo [2011] QCA 308 at [66]. 200Finally, I should refer to Key v Key [2010] EWHC 408; [2010] All ER 155, at [98], in which it was said: "Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges." Knowledge and Approval 201In addition to showing that the deceased had testamentary capacity, the Defendant, as the propounder of the December Will, must also show that the deceased knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton [2005] WTLR 99, 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. 202Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. ... Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred." 203The principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour said (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it." 204Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity. 205When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec'd ) [1950] 2 All ER 117, at 121. 206A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 at [2] - [9]. 207Finally, in relation to the matter generally, I emphasise that the ultimate question before the court, when assessing the validity of a Will, is not whether the will is a fair one in all the circumstances of the case. A Will, the provisions of which are unfair, vindictive or perverse, may still be a valid will. Determination of the Proceedings 208The starting point is that the burden of proving testamentary capacity lies on the Defendant, who seeks to uphold the December Will. Due execution of the December Will was established. There was a dispute, then, that the Plaintiff had discharged the evidentiary onus, but I am more than satisfied that the evidence, as a whole, raised doubts as to the deceased's testamentary capacity. The medical evidence alone, demonstrated that there was a real issue about her testamentary capacity. 209Accordingly, the Defendant had to affirmatively establish that the deceased had testamentary capacity. The question argued was whether she had discharged that burden. 210I appreciate that the firm of solicitors, and Mr Stecher, in particular, attended upon the deceased at what was a busy time of the year, and in what were said to be urgent circumstances. I have also not forgotten that the service that was being provided was provided pro bono. For this, each should be commended. 211Yet, contrary to the clearest guidance, in well known cases and otherwise, Mr Stecher did not specifically test for testamentary capacity. No medical opinion to determine the deceased's capacity, generally, was arranged by him, at the time of the deceased executing the December Will, despite concerns having been raised as to her general capacity before then. I appreciate that doing so would not operate as a touchstone of the validity of a Will, and that non-compliance would not, on its own, demonstrate its invalidity. However, in the circumstances of this case, these steps would have assisted greatly in avoiding, or at least minimizing, the dispute. 212The deceased's capacity was not, in my view, adequately tested even though Mr Stecher aware that her capacity was an issue. He did not seek any medical assessment of the deceased's mental condition; all of his communication, prior to attending upon the deceased in hospital, appears to have been with non-medical personnel of the Hospital (social workers) and others without apparent medical qualifications. He did not enquire, and, so it would seem, was not told, of the application to the Guardianship Tribunal. 213The Plaintiff was correct in submitting that in taking the deceased's instructions, Mr Stecher did not discuss with her the size of her estate. Furthermore, whilst he knew that there was an earlier will, he did not ascertain its date and whether anything had occurred that would prompt an alteration of the terms of the earlier will. The inaccurate spelling of the deceased's name in the Will is also relevant. 214Also, the deceased, whilst seriously ill, was making a will in favour of someone who had not previously been an object of her bounty. No questions were asked by him about the contents of any prior will although he was aware that such a prior will existed. 215In my view, looking at the evidence, whilst it is clear that Mr Stecher attended upon the deceased personally, he did not question her to determine her capacity, with questions directed to ascertain whether she understood that she was making a will, what the effect of the will that she was proposing to make was, the extent of the property she was disposing of, and the claims to which she ought to give effect. The Banks v Goodfellow tests were not at the front of his mind. He simply did not know what they were. 216Furthermore, there was no discussion, apparently, about a part of the December Will. That part (Clause 5) was neither simple nor straightforward. The Clause had been inserted without instructions and was taken from the precedent he used to prepare the draft. 217Mr Stecher maintained in oral evidence his confidence that the deceased was fully aware of what she was doing at this time and that he had no reason to doubt her capacity. The evidence of an experienced, and impartial solicitor, who knew the deceased, would normally carry great weight. For the reasons I have set out previously, on the ultimate question, I do not gain any confidence from his evidence. In this case, the deceased's capacity was not, in my view, adequately tested. 218In addition, I note that Mr Keller does not assert in his affidavit that he translated the exact words stated by either Mr Stecher, or by the deceased, but rather that he translated "words to the effect" of what was said. This is not surprising, since it may have been necessary for Mr Keller to convey the meaning of a word, or phrase, where there is no precise, or even similar, equivalent to the English word, or phrase, in Romanian. By way of example, I refer to the use of the words "family provision claim to challenge the will" used by Mr Stecher. The legal terms "executor" and "trustee" have technical and legal meanings also. 219It has been said that "interpreters do not simply translate words; rather they translate concepts and ideas from one cultural context to the next" (K Laster & V Taylor, Interpreters & the Legal System , (1994) 120, referred to in Barnett, Michael, " Mind Your Language - Interpreters in Australian Immigration Proceedings " [2006] UWSLawRw 5; (2006) 10(1), University of Western Sydney Law Review 109). All human communication is complex. Further complexities of translating the terms of a Will, and its meaning and effect, in a hospital setting, to a person who is ill, are obvious. 220I must also remember that other matters were discussed. I do not know anything about the deceased's state of comprehension of those matters. 221The evidence, overall, does not satisfy me that the burden on the Defendant to establish the testamentary capacity of the deceased at the relevant time she executed the December Will has been discharged. Accordingly, the December Will should not be admitted to probate. 222But one can go further than simply deciding the case from the perspective of the Defendant's failure to satisfy the burden of proof. I also find that the medical evidence is sufficient to justify a finding that there is a sufficient doubt about the testamentary capacity of the deceased. There is ample evidence of her lacking insight into her current functioning abilities and of her ambivalence in relation to the Plaintiff. The secondary tumours throughout her body, including her brain, had "greatly affected her decision making abilities". A clinical psychologist, palliative physician and neuropsychologist had reviewed her mental state close to the time she is said to have given instructions for, and executed, the December Will, and she was found to have "limited mental capacity" and "cognitive impairment". 223A conclusion that the deceased lacked testamentary capacity necessarily compels a conclusion that she did not know and approve the contents of this will. Even without that conclusion, this is a case where the elements of suspicion arising from the circumstances are sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of an apparently rational will. The evidence has not dispelled the suspicions engendered by those circumstances, particularly the failure to obtain instructions for, and, apparently discuss, Clause 5 of the December Will. In addition, approval in this context requires decision, not mere assent: Key v Key at [116]. 224It follows that it has not been shown that the deceased knew and approved of the contents of the December Will, with the consequence that, for that reason as well, it ought not to be admitted to probate. 225In relation to the Plaintiff's request for a further account from the Defendant, having inspected the accounts prepared by her in April 2011 and updated in May 2011, I am satisfied that no further account, or accounting, to the Plaintiff, is required. However, she may be required to repay the amount of $500 to the estate depending upon the orders to be made in respect of costs. 226For these reasons, I am not satisfied that the December 2009 Will is the last valid Will of the deceased. 227I make the following orders: (a) Subject to compliance with the rules of Court, letters of administration with the deceased's Will made on 6 May 2009 annexed in solemn form be granted to the Plaintiff; (b) The matter be referred to the Registrar to complete the grant; (c) The Cross-Claim be dismissed; (d) If the parties are unable to agree on the burden of costs, the matter is adjourned to hear argument; (e) With the exception of each original Will, the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and the Court Books may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2011