Supreme Court New South Wales Medium Neutral Citation: McNamara v Nagel [2017] NSWSC 91 Hearing dates: 15-18 February 2016, 25 October 2016 Decision date: 17 February 2017 Jurisdiction: Equity Before: Robb J Decision: (1) An order will be made for a grant of probate in solemn form to the plaintiff of the will of Rona Winifred Nagel made on 8 June 2012, with appropriate consequential orders (2) The plaintiff is directed to bring in short minutes of order to give effect to these reasons after consultation with the defendants Catchwords: SUCCESSION – Probate and letters of administration – Application for grant of probate in solemn form – Application made by executor named in will made fifteen days before death of the deceased – Application opposed and cross claim brought by executor and beneficiary of will made fifteen years earlier – Whether deceased had testamentary capacity to make second will – Whether deceased knew and approved of terms of second will Legislation Cited: Succession Act 2006 (NSW) Ch 3 Cases Cited: A v N [2012] NSWSC 354 Banks v Goodfellow (1870) 5 QB 549 Beverley v Watson [1995] ANZ ConvR 369 Brown v McEnroe (1890) 11 NSWR Eq 134 Church v Mason [2013] NSWCA 481 Estate of George Aeneas Mcdonald; Howard v The Sydney Children's Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 Estate of Park (1954) P 112 Gibbons v Wright (1954) 91 CLR 423 Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 King v Hudson [2009] NSWSC 1013 Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 Re estate of Stanley William Church [2012] NSWSC 1489 Re Estate of Tsilfidis; Stavrakakis v Tsilfidis [2015] NSWSC 1720 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Shorten v Shorten (No 2) [2003] NSWCA 60 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Category: Principal judgment Parties: Kylie Anne McNamara (plaintiff and cross defendant) Alan Robert Nagel (first defendant and first cross claimant) Gae Lorraine Costa (second defendant and second cross claimant) Representation: Counsel: C Wilson (plaintiff and cross defendant) AL Hill (defendants and cross claimants) Solicitors: Alexanders Lawyers (plaintiff and cross defendant) Gordon A Salier AM (defendants and cross claimants) File Number(s): 2013/367891 Publication restriction: None Judgment Introduction 1. On 5 March 2013, probate of the will of the late Rona Winifred Nagel, made on 8 June 2012 (2012 will), was granted by this court to the executor named in that will, the plaintiff, Kylie Anne McNamara. The plaintiff is a granddaughter of the deceased. 2. It appears that the grant of probate was made in error, as a caveat had been filed, and on 30 September 2013 Registrar Studdert made an order that the original probate be returned to the Registry, which was accordingly carried out. 3. By her statement of claim filed on 6 December 2013, the plaintiff seeks a grant of probate of the 2012 will in solemn form. 4. The defendants are Alan Robert Nagel and Gae Lorraine Costa. The first defendant was the caveator, and both defendants were apparently the applicants for revocation of the original grant of probate, who took the stance by their application that they were entitled to require the 2012 will to be proved in solemn form, on the ground that there was reason to believe that the deceased, Mrs Nagel, did not have testamentary capacity at the time she executed the 2012 will. 5. The defendants are the children of Mrs Nagel, as is Debra McNamara, the plaintiff's mother. 6. In accordance with the usual convention, with no disrespect meant, I will call the plaintiff Kylie, the defendants respectively Robert (as the evidence suggests he is usually called) and Gae, and Kylie's mother, Debra. Out of respect I will call the deceased Mrs Nagel. 7. By their amended defence, Robert and Gae denied that the 2012 will was a valid will, on the ground that Mrs Nagel lacked testamentary capacity when it was made. They also alleged that Mrs Nagel did not understand the consequences of, or approve of the terms of, the 2012 will, and gave as particulars the claims that Mrs Nagel was incapable of making any complex decisions on 8 June 2012, and that there were suspicious circumstances because of the presence of Kylie during the instructions Mrs Nagel gave to her solicitor before the will was drawn up. 8. Robert and Gae filed a cross claim on 13 February 2014, by which they sought an order that probate be granted of a will dated 11 June 1997 and executed by Mrs Nagel (1997 will) to Gae and Kylie, who were the executors named in the 1997 will. 9. Kylie filed a defence to the cross claim in which she alleged that the 1997 will was revoked by the 2012 will. 10. By the 1997 will, Mrs Nagel gave a legacy of $10,000 to her grandson, Patrick Terence McNamara. She directed her executors to sell her then home at 41 Dobell Street, Hurstville, or such other home as she may possess, and to divide the net proceeds as to one quarter to Robert, one quarter to Gae, one quarter to Debra, one eighth to Kylie, and one eighth to Jayne Anthea Ockers, who was another granddaughter of Mrs Nagel. The residue of the estate was to be divided equally between Kylie and Jayne. 11. Under the 2012 will, the whole of Mrs Nagel's estate was given to Kylie. 12. The 2012 will provided that, if Kylie predeceased Mrs Nagel, her estate was to be divided as follows: Debra (40%), Gae (25%), Robert (10%), Jayne (15%), and Patrick (10%). 13. It appears from the evidence that there has been a family rupture of long standing between Kylie and other members of Mrs Nagel's family, which has led to a level of ill-feeling that has been significantly exacerbated by the terms of Mrs Nagel's will, in-so-far as the whole of her estate has been left to Kylie, to the exclusion of Mrs Nagel's children and other grandchildren. 14. Mrs Nagel was 87 years old at the time of her death. She made the 2012 will during her final illness, and died on 23 June 2012, some 15 days after she made the will. 15. There is no evidence that Mrs Nagel suffered from any delusions or dementia, or any other obvious cognitive deficit, before her final illness, in a way that may have cast doubt on her testamentary capacity. 16. Yet it is clear that Mrs Nagel suffered from sepsis as a result of complications from an operation to remove kidney stones, as well as other serious afflictions, that severely weakened her, and caused her to suffer fever and delirium that waxed and waned during the period in which the 2012 will was executed. 17. The 2012 will was a relatively substantial departure from the 1997 will. Although that will left all of Mrs Nagel's estate to her husband, in the event that he predeceased her, the estate was left primarily to Mrs Nagel's children, with a lesser proportion shared equally between her two granddaughters. The 2012 will reflected an apparent decision by Mrs Nagel that her relationship with Kylie was such as to warrant her estate to be given to Kylie to the exclusion of all of her other family. 18. Kylie was the member of Mrs Nagel's family who spent the most time with her during her final illness, save for occasional visits by other family members, and had the opportunity to discuss the proposed new will with Mrs Nagel, and to influence her as to its terms. Kylie was present at Mrs Nagel's hospital room during the time when Mrs Nagel gave instructions as to the terms of her will. She was present at the time when the contents of the will were explained to Mrs Nagel before she executed it. Those facts would naturally give rise to concern on the part of the other members of Mrs Nagel's family, as to whether Kylie in some way influenced her grandmother to make a new will solely for her benefit. 19. However, according to the solicitor who prepared the 2012 will, and the other person who witnessed the will, Mrs Nagel appeared to be lucid and of adequate testamentary capacity when she gave the instructions for the preparation of her will, when its terms were being explained to her, and when she executed it. Mrs Nagel was warned that other family members might challenge the will, if she proceeded in accordance with her instructions, but Mrs Nagel nonetheless confirmed that it was her intention to leave all of her estate to Kylie. 20. The cases for and against Mrs Nagel's testamentary capacity at the time she executed the 2012 will were each supported by the evidence of an eminent expert consultant physician and geriatrician, who contested in carefully reasoned terms the presence of testamentary capacity when Mrs Nagel executed the 2012 will. 21. It must be remembered that the only task of the court is to apply the principles that govern the issue of whether Mrs Nagel had testamentary capacity, and whether she knew and approved of the terms of the 2012 will at the time that she made it. It is Mrs Nagel's will, and she is not now able to support it. It is a very serious matter for the court to deny a testator his or her final testamentary wishes. The relevant principles must be applied rationally in accordance with the objective evidence. 22. It is no part of the court's task to pass judgment on the fairness or reasonableness of the testamentary dispositions made by Mrs Nagel, if it is satisfied that she had testamentary capacity, and knew and approved the terms of her will. The court has other jurisdiction under Chapter 3 of the Succession Act 2006 (NSW) to make family provision orders, which vary the effect of testamentary dispositions in cases where the requirements of that Act are satisfied. 23. I will analyse the significant aspects of the evidence tendered in this matter, before I set out the relevant legal principles, and then give my consideration as to how those principles should be applied in the present case. Evidence of Kylie Anne McNamara 1. Kylie swore an executor's affidavit on 29 January 2013. She annexed a copy of Mrs Nagel's death certificate. The certificate recorded that Mrs Nagel's cause of death was sepsis staphylococcus aureus and Candidaemia, from which she had been suffering for one week, as well as acute kidney injury. 2. The value of the estate, as stated in the inventory of property, was $667,678.48. Mrs Nagel's strata unit at Beverley Hills was valued at $520,000. There was also $144,110.50 in a number of bank accounts. 3. Kylie swore a substantive affidavit dated 17 April 2014, and affidavits in reply dated 21 and 25 July 2014. Credibility of Kylie's evidence 1. It will be convenient to consider the issue of the credibility of the evidence given by Kylie in advance of my consideration of that evidence, as to do so will facilitate the making of findings based upon the acceptance of that evidence, or otherwise. 2. Kylie is plainly a self-interested witness. A considerable part of her evidence concerned events and conversations at which only Kylie and Mrs Nagel were present. Much of that evidence, if accepted, would be strongly supportive of Kylie's case. 3. Consequently, the credibility of Kylie's evidence is a significant matter to the proper determination of the claims made in this case. 4. Kylie appeared generally to be anxious and emotional during her evidence. However, she appeared to give her evidence candidly and responsively. My best assessment of the cause of Kylie's demeanour was that she was upset about having to revisit the fact of her grandmother's death, and the dispute about the validity of her 2012 will, in the context of what I perceived to be a serious and long standing family dispute, in which Kylie perceived herself to be the outsider. Kylie gave evidence in cross-examination of having a poor relationship with her mother, who she said did not want Kylie as a child (T 49.39 and 50.30). The evidence does not, however, permit any reliable findings concerning the nature and causes of the family dispute. 5. I do not, however, place significant weight on my own assessment of the likely causes for Kylie's demeanour as a witness, as I am not able to base that assessment on any significant objective evidence. It can be no more than a matter of impression. 6. I have made these observations as part of my explanation for the conclusion that I have reached that, even though Kylie appeared to approach cross-examination defensively, nothing that I observed caused me to form the view that Kylie, in giving her evidence, was doing anything other than to respond honestly in accordance with her genuine recollection. 7. In cross-examination, counsel for the defendants did not seek to contradict Kylie in relation to most of the evidence that she gave in her affidavits. Counsel frequently made the point, which Kylie accepted, in relation to many aspects of Kylie's evidence, where she related events or conversations to which she and her grandmother were privy, that no one else was present at the time, and the court would have to rely upon Kylie's word. On a small number of occasions, where Kylie had given evidence of some dealing with one of counsel's witnesses, counsel put to Kylie that the relevant event did not take place. 8. Counsel therefore appeared to have taken the course of not contradicting Kylie when he did not have instructions inconsistent with her evidence. It may be that he made the tactical decision not to challenge Kylie's evidence on subjects that required speculation on his part, and for which there was no objective basis for assessing the likely outcome of the cross-examination. 9. Counsel, with respect, made his own proper professional judgments concerning the appropriate approach to cross-examining Kylie, and it was reasonable for him to take the course that he did, given that the court does not wish to encourage extensive speculative cross-examination of witnesses. 10. Counsel clearly intended to establish a basis for suggesting to the court that it should be wary of accepting all of Kylie's self-interested evidence, given that so much of it could not be corroborated. 11. Counsel also questioned Kylie concerning her evidence, to which I will come shortly, that for a number of years Mrs Nagel had asked Kylie to arrange an appointment with a solicitor, to enable Mrs Nagel to make a new will, but that Kylie had failed to implement those requests until 8 June 2012, during Mrs Nagel's final illness. Counsel got Kylie to accept that it would have been an easy matter for Kylie to pick up the telephone to arrange a meeting with an appropriate solicitor, at least during the periods when Mrs Nagel was not in hospital. Kylie stated that she did not comply with Mrs Nagel's requests, in the interval between Mrs Nagel leaving hospital in March 2012 and Kylie's leaving Australia for a visit to China in April 2012, because she was simply too busy. 12. By this means counsel put himself in the position where he could ask the court to doubt Kylie's evidence, because of the number of years that passed during which Kylie did not act on Mrs Nagel's requests. 13. One matter that is significant is that counsel took Kylie specifically to her evidence to the effect that, at the time Mrs Nagel gave instructions to her solicitor as to the terms of the 2012 will, Mrs Nagel was happy, in a cheerful mood, was alert and orientated, and spoke to her solicitor in a very clear manner. It was not suggested to Kylie that that evidence was false or exaggerated. It may be noted that Kylie's evidence on this subject was consistent with the evidence given by the solicitor, Mr McKimm, which may have influenced counsel in the course that he took in the cross examination of Kylie on this subject. 14. Counsel put to Kylie in cross-examination a number of inconsistencies in the evidence that Kylie gave concerning the events at Mrs Nagel's husband's funeral, and evidence given on that subject by Robert and Gae. Those events occurred in 2008, and the inconsistencies were relatively immaterial. 15. Of more significance was an inconsistency in the evidence given by Kylie concerning a conversation between Kylie and Robert, in the presence of Robert's wife Gail, that occurred after the solicitor had left Mrs Nagel's hospital room on 8 June 2012, after he had taken instructions for Mrs Nagel's will. Robert and Gail's version of the conversation involved Kylie engaging in an abusive diatribe for a considerable time, while Kylie gave a different version in which Robert made a number of offensive observations to her. 16. Subject to these matters, there was little contradiction in the cross-examination of the evidence that Kylie gave. 17. In A v N [2012] NSWSC 354, at [417] to [428], Ward J (as her Honour then was) considered in some detail the weight that the court may give to uncontradicted evidence. In outline, her Honour concluded: "The authorities clearly stand for the proposition that a trial judge is not bound to accept evidence that is not cross-examined, although that evidence may be given more weight": [417]. 18. In the present case, it is quite clear that the defendants do not accept the evidence given by Kylie that cannot be corroborated, and the approach that was taken by their counsel in cross-examination should not be taken to signify such acceptance. 19. In cases such as the present, which are likely to turn on events and conversations between a witness and the deceased, the witness will be required to give evidence without the benefit of corroboration by the deceased, and the party who wishes to challenge that evidence will be limited in its ability to directly contradict the witness, because the party was not a witness to the events the subject of the evidence. 20. There is no course available to the court other than to assess the credibility of the evidence given by the witness, in the light of the fact that the witness has sworn or affirmed as to the truth of that evidence, while taking particular care to weigh the self-interested nature of that evidence, and to strive to measure the reliability of the evidence against an analysis of the objective facts. 21. On this basis, I am comfortably persuaded that the evidence given by Kylie is reasonably reliable on subjects that involve Kylie giving evidence of an objective event or conversation in which she participated. Her evidence is less reliable in contexts where she expresses generalisations about events in which she did not personally participate, primarily being the relationship between Mrs Nagel and the other members of her family, and the extent to which those other family members provided day-to-day assistance to Mrs Nagel in relation to her needs. Evidence of this nature is inherently less reliable than evidence of specific events and conversations; and it is more likely to be influenced by emotional perceptions. (Proper balance requires me to note that similar, and perhaps even more general evidence, was given by Robert and Gail, and that evidence is also subject to the same reservations). 22. It will be convenient to deal with the effect of Kylie's evidence by dealing separately with the various subjects that she covered. Relationship between Kylie and Mrs Nagel 1. The first matter is Kylie's relationship with Mrs Nagel. One issue that is relevant to the determination of whether a testator had testamentary capacity is the extent of any disparity between the testamentary effect of the will in question and an earlier will made at a time when the testator clearly had testamentary capacity. If the new will involves a substantial change in testamentary intention, and the dispositions made by it are not objectively justifiable on the basis of the relationships between the testator and the potential beneficiaries, and the calls that various potential beneficiaries have on the bounty of the testator, those circumstances may support a finding that the testator did not have the capacity adequately to weigh the claims of those who may have claims on the property at that testator's disposal. 2. In the ordinary case, it would be quite unusual for a grandmother to give all of her estate to one granddaughter, to the exclusion of her three children and other grandchildren. 3. However, in the present case there is evidence, which I accept, of an exceptional relationship between Kylie and Mrs Nagel. The evidence given by Kylie on this subject was not contradicted, when witnesses available to the defendants should have been able to contradict it, if it was not true. 4. Kylie was born on 23 August 1973. Kylie has a sister, Jayne. Kylie's parents separated soon after her birth. Kylie's mother, Debra, met Kylie's step-father, Terrance McNamara, in 1975. From about 1975 to 1980, the family lived with Mrs Nagel and her husband "on and off" in Hurstville, New South Wales. In about 1980, Debra and her husband moved to the western suburbs of Sydney. Kylie stayed with her grandparents between 1980 and 1982. Kylie's step-brother, Patrick, was born in 1981. Between 1982 and 1988, Kylie only spent weekends with her grandparents. 5. In around 1988, Kylie heard a phone conversation between Debra and Mrs Nagel, during which the former said: "If you want Kylie so much then just come and get her". Kylie's grandparents picked her up within the hour. 6. From about 1988, when Kylie was about 15 years old, she began living permanently with her grandparents. Kylie moved out of her grandparents' home in about 1999, when she was about 26 years of age. 7. Kylie's grandparents had a three-bedroom house, and one of the bedrooms always remained Kylie's. At the time she swore her affidavit, she still had some of her personal belongings in her grandparents' house, as she treated their home like her home. 8. Kylie said in her affidavit (pars 34 and 35): It was Nan and pop that taught me the morals and values I hold today and them that helped create the person I am. Nan was my best friend and I never did anything without asking her thoughts. I had always spent a lot of time with nan and pop. 1. After her grandfather's death on 11 September 2008, Mrs Nagel needed considerably more help than before, largely because she did not drive. Kylie said in her affidavit (pars 43 and 44): … At nan's request, I started to do all her banking and I was a signatory on her account. I organised her term deposits and arranged for her bills to be paid. I visited her frequently to make sure she had everything she needed like groceries and medications. I drove her to appointments, functions etc. I always tried to make things as easy as possible for her. Since my pop's passing, I spent nearly all my spare time with nan. I spent hours chatting with nan at her kitchen table, drinking tea and coffee. She watched me do the gardening or wash my car. We spoke for hours on the phone if we were not together, sometimes up to 5 times a day. I also called her during my meal breaks at work. 1. Of particular significance is Kylie's evidence that, in November 2008, while at the cemetery with Mrs Nagel to decide on the best place to place her grandfather's ashes, they selected three side-by-side sites in the rose garden "so the three of us could remain together forever". 2. Between September 2008 and March 2012, Kylie and Mrs Nagel went on many holidays together. They went to the Great Ocean Road in Victoria, up to Far North Queensland, South Australia, the Central Coast, Nelsons Bay and Forster. 3. Kylie gave considerable evidence concerning the day-to-day relationship she had with her grandmother, that would justify a conclusion that the relationship was in many respects more like one between a daughter and her mother than with her grandmother. 4. Kylie was in China when Mrs Nagel was admitted to the St George Hospital the final time, and after her return the evidence shows that she spent most of the hours outside the time necessary for working and sleeping with her grandmother. Kylie was the only member of the family to stay with Mrs Nagel in her hospital room for long periods. 5. When the time came for appointing an enduring guardian, Mrs Nagel chose Kylie. 6. When an issue arose as to whom the hospital staff should give information concerning Mrs Nagel's state of health, Mrs Nagel gave instructions that information could be given to her family members, but only after Kylie had first been informed. 7. It was Kylie who stayed with Mrs Nagel and comforted her during her final hours, and it was Kylie who was with her at the time of her passing. 8. I am satisfied on the evidence that the relationship between Kylie and Mrs Nagel was relatively exceptional, close and enduring, and was such as to support a rational decision by Mrs Nagel to leave the whole of her estate to Kylie. In concluding that such a decision could be made rationally by Mrs Nagel, I am not entering upon the question of whether, on the basis of the real relationships between Mrs Nagel and the rest of her family, the decision she made was fair and reasonable. Mrs Nagel's intention to make a new will 1. The second subject I will consider is the evidence given by Kylie concerning the requests made to her over the years by Mrs Nagel to arrange an appointment with a solicitor to enable Mrs Nagel to make a new will. 2. Evidence that Mrs Nagel had expressed the intention over a number of years to make a new will might be a relevant factor in determining whether Mrs Nagel had testamentary capacity on 8 June 2012. Any mental disability that Mrs Nagel had on that date may have been less likely to have deprived her of testamentary capacity, if it were found that Mrs Nagel had implemented a long-standing intention when forced to address her mortality, than if the evidence established that she made an apparently spontaneous decision to make a new will at a time when her powers of understanding were diminished by her illness. 3. Kylie gave evidence that, after the death of her grandfather, Mrs Nagel "made numerous mentions to me in regards to her will". Kylie said that the discussions were always instigated by her grandmother. She said, paraphrasing the evidence, that Mrs Nagel said her existing will was out-dated, and that she was disappointed with the lack of attention and help she got from Robert and Debra, and that she did not like their partners, Gail and Eddy. Mrs Nagel said "I don't want them to get any of my money" (par 50). 4. A significant part of Kylie's affidavit dealt with conversations that she had with her grandmother, in which Mrs Nagel expressed hurt and disappointment concerning her treatment by her children and other members of her family: see in particular pars 50, 52 to 54 and 62. 5. Kylie said that, prior to Christmas 2008 or 2009, Mrs Nagel sent her into a legal office that was near where they were parked, to enquire about the costs involved in changing her will. She had a discussion on the subject in December 2011, while the pair were driving up to Forster on one of their trips. She had a similar discussion in February or March 2012, during the drive to Forster on another trip. 6. Kylie said that she did not act upon Mrs Nagel's requests, because she was busy with her work and life in general, and helping her grandmother, and had a "lack of desire to address anything to do with the idea of nan's death" (par 51). 7. Kylie gave evidence that, after Mrs Nagel was discharged from Calvary Hospital in around March 2012, she again asked Kylie to take her to get her will changed. At that time Kylie was extremely busy, as she had devoted all of her spare time to her grandmother while she was in hospital, and had also taken her twice to Forster for five days so that she could rest and recover. Also, Kylie was busy preparing to go to China in April 2012, on a trip that she had booked in December 2011, prior to Mrs Nagel falling ill. Kylie told her grandmother that she would take her to get her will done when she returned home from China. 8. Kylie said that she had a conversation with her grandmother in March or April 2012 that included the following (par 67): Nan: Kyle, you will always be my baby. Don't worry love, they will get a shock when they get nothing and I leave you everything. Me: Nan, you can't do that! Can you imagine how much trouble that would cause? Nan: It's my damn money and I can do what I want with it! Me: Nan, it really upsets me when you talk about dying. Please don't talk like that. You can't leave me Nan. Please never leave me. Nan: Kyle, I am an 80 something-year-old woman with a million things wrong with me. 1. After Kylie returned from China, and learnt that her grandmother was in hospital, she went straight to the hospital, and her conversation with Mrs Nagel included the following (par 77): Nan: I should have got that will fixed up. I have to get it in order. You have to get me a solicitor here! Me: Nan, you are not going to die. We will fix it when you get home. 1. Kylie gave evidence that, in the following days, Mrs Nagel repeated her enquiry as to whether Kylie had arranged for the solicitor to see her yet, and Kylie had replied that she did not know what to do. 2. Kylie asked the hospital social worker about solicitors attached to the Hospital, and was told that the Hospital did not have a solicitor for matters like wills. 3. This aspect of Kylie's evidence is corroborated by a note made by a social worker employed by the Hospital at 15:00 hours on 6 June 2012, to the effect that Mrs Nagel's granddaughter had made a request concerning her wanting to redo her will, and had been advised that, as hospital staff cannot be involved, it would be necessary to organise a solicitor to come to the Hospital. 4. When Kylie said to her grandmother that she did not know how to get a solicitor to the Hospital, Mrs Nagel told her to get her old will from her wardrobe, and that there should be a contact number for a solicitor on it. 5. Kylie complied with her grandmother's request, obtained a copy of the 1997 will that had been prepared by Mr Alan James McKimm, solicitor, and used the information on the will to contact him. Although Kylie said in her affidavit that the contact took place on 5 or 6 June 2012, it was more likely to be on the latter date, as that is the date on which Kylie raised the issue with the social worker. 6. Kylie arranged for Mr McKimm to visit Mrs Nagel in her hospital room on 8 June 2012, for the purpose of taking her instructions for the preparation of a new will. 7. If Kylie's evidence is accepted, then Mrs Nagel asked Kylie on a number of occasions after the death of her husband to assist her in making arrangements for a solicitor to prepare a new will. Those requests became more frequent and pressing after Mrs Nagel was admitted to the St George Hospital for the final time. Mrs Nagel instigated the requests, which were not followed up in part because Kylie did not want to face the prospect of her grandmother's death. Mrs Nagel stated on a number of occasions that she would leave the whole of her estate to Kylie, and gave reasons for her unhappiness with the other members of her family. 8. If that is all true, then what Mrs Nagel did on 8 June 2016 was to implement a long-standing intention. 9. This evidence is strongly supportive of Kylie's case, and is in that respect self-serving. It cannot be corroborated, as the conversations were private, and Mrs Nagel is now dead. 10. There is evidence that Kylie made the request for information that she said she made to the social worker, but that evidence is consistent with the possibility of Mrs Nagel making a new will having first been raised on 6 June 2012. 11. It is of some relevance that the evidence justifies a finding, which I make, that on the two occasions Mr McKimm attended upon Mrs Nagel on 8 June 2012, Mrs Nagel conducted herself as if she was the instigator of the decision to make a new will. While Kylie was present in the hospital room for much of the time, her presence was passive. 12. Although the defendants pleaded in their defence that Kylie's presence was grounds for suspicion, it was not suggested to Kylie in cross-examination that she had in any way overborne her grandmother's will, or that Mrs Nagel was acting at Kylie's direction in relation to the steps that she took to make her 2012 will. It was not put to Kylie that it was she, rather than her grandmother, who had instigated the proposal that the new will be made in the terms in which it was made. 13. This evidence provides some support for the conclusion that it was Mrs Nagel who was the moving force in the making of her new will. It does not, of course, corroborate Kylie's evidence concerning the duration of Mrs Nagel's desire to make a new will. 14. I accept Kylie's evidence concerning the history of Mrs Nagel's attempts to engage her assistance in the preparation of a new will. The evidence is not inherently improbable. The 1997 will was rendered substantially redundant with the prior death of Mrs Nagel's husband, and the fact of his death made it natural for Mrs Nagel to revisit the question of whether her original alternative gifts remained appropriate. As I have said above, I found Kylie to be a credible witness, and I do not think it would be warranted to reject her evidence on this subject, simply on the ground that it is highly supportive of Kylie's case, and of its nature cannot be corroborated. Mrs Nagel's apparent mental state when making the 2012 will 1. Thirdly, Kylie gave the following evidence concerning Mrs Nagel's apparent state during Mr McKimm's first visit to the hospital room, when he took her instructions for a new will (par 92): I remember nan appeared to be in a happy, cheerful mood. She was alert & orientated & spoke to Mr McKimm in a very clear manner. Nan didn't appear at all drowsy or affected by medication. The sentences were clear, concise, logical & rational. She was just her usual self. 1. She said that, during the conversation, Mr McKimm said to Mrs Nagel (par 93): "the instructions you gave me will possibly lead your children Robert, Gae and Debra to contest the new will", and that her grandmother replied: "Let them try". 2. As will be seen, that evidence is consistent with the evidence given by Mr McKimm on the same subject. Neither witness' evidence was challenged. 3. As Kylie's evidence on this subject was corroborated by the independent evidence of Mr McKimm, I will accept it as being a true statement of Kylie's understanding of her grandmother's apparent mental state. 4. As will appear from my review of the hospital notes below, Mrs Nagel at this time experienced periods when she was apparently alert, lucid and mentally competent, and other periods when she was febrile, delirious and exhausted. I am satisfied that, during the course of Mr McKimm's visits to Mrs Nagel's Hospital room, Mrs Nagel appeared to be alert and mentally competent, and that she participated in the conversations in the manner deposed to by Kylie and Mr McKimm. She was in effect the moving party in relation to the instructions that she gave to her solicitor, and responded rationally to Mr McKimm's suggestion that her will might be challenged by her children, if she implemented her instruction that the new will leave all of her estate to Kylie. Evidence of Alan James McKimm 1. Mr McKimm was admitted to practice as a solicitor in 1977. He prepared a will for Mrs Nagel and her husband on 11 June 1997. 2. He said in his affidavit that, around early June 2012, he received a phone call from Kylie, in which Kylie asked him to go to the St George Hospital, because "my grandmother wants to change her will and also do [a] power of attorney and guardianship". 3. Kylie gave evidence that she first contacted Mr McKimm on 5 or 6 June 2012, to enquire if he made hospital visits to attend to will matters. She said that she called Mr McKimm's office on 7 June 2012, and arranged an appointment for him to see Mrs Nagel at the Hospital. The appointment was for 8 June 2012, at around 10 AM. Mr McKimm agreed in cross-examination that he received a call from Kylie "the day before or thereabouts". 4. The first call that Kylie made to Mr McKimm must have been after 15:00 hours on 6 June 2012, when the hospital notes record that Kylie was advised that, if Mrs Nagel's will was to be redone, it would be necessary to organise a solicitor to come to the Hospital. 5. This evidence establishes that Mrs Nagel must have formed her intention to make a new will at some time before about 15:00 hours on 6 June 2012, and that she maintained that intention until the time that she executed the 2012 will on 8 June 2012. 6. On 8 June 2012, at around 10 AM, Mr McKimm visited Mrs Nagel in her private room at the St George Hospital. According to his affidavit, he had a conversation with Mrs Nagel in the following terms: Me: How do you want to split up your estate? It appeared I did your last will dated 11 June 1997. Are there any minor changes to the previous will? Mrs Nagel: No, I want to give it all to Kylie. She is the most important person in my life. She is doing everything and caring for me. Me: Mrs Nagel, what about your children? If you leave the whole estate to Kylie that may lead to a fight. Are you sure you do not want your children to get anything? What if Kylie predeceased as you? Mrs Nagel: Well, this is the way I want it. If Kylie dies first then I am splitting it amongst the family in the following way: 40% to Debra McNamara, 25% to Gae Costa, 10% to Alan Nagel, 15% to Jayne Ockers and 10% to Patricia [typographical error for Patrick?] McNamara. Me: What are your assets? I know you have the villa and have you got anything else? Mrs Nagel: I have got some money in the bank. 1. Mr McKimm described Mrs Nagel's appearance during the meeting in the following way (par 12): During the meeting with Mrs Nagel, she appeared to me to be lucid and to understand what I was saying. She also answered questions in [a] responsive way. She did however appear to be in a bit of discomfort, which I noticed from the way she grimaced as she spoke to me. 1. Mr McKimm annexed his one page hand written note of his meeting with Mrs Nagel. The note briefly records the substance of the instructions given by Mrs Nagel concerning the contents of her will. It also contains a reference to the enduring guardianship and power of attorney. It contains a note of Mrs Nagel's room at the Hospital, Kylie's mobile phone number, Mrs Nagel's name, and her address at 1/73 Mountview Avenue Beverly Hills. 2. Mr McKimm said that Kylie was in the room with Mrs Nagel during the meeting. Kylie sat in a corner of the room. At some time during the meeting Kylie left the room briefly, after having said: "I just have to speak to the nurse". Mr McKimm said that there was no interference from Kylie during the meeting with Mrs Nagel. At one point during the meeting, Mrs Nagel asked Kylie to get a piece of paper out of her handbag where she had written some notes. Kylie assisted her, but other than that took no part in the conversation. Mr McKimm assumed that the note was in Mrs Nagel's handwriting. It had some bank account details on it. 3. If Mrs Nagel had in her handbag a note that listed the money in her bank accounts, that would be consistent with Mrs Nagel having pre-determined that she would need that information for a purpose such as the making of a new will. 4. The meeting lasted about 30 minutes. Mr McKimm returned to his office and gave instructions for the will to be typed up so that Mrs Nagel could execute it in the afternoon. 5. Mr McKimm returned to Mrs Nagel's room at the hospital at around 2 PM on 8 June 2012, with his secretary Ms Caroline Sutcliffe to act as a witness to the will. 6. Mr McKimm said in his affidavit that he read the will over to Mrs Nagel word by word, emphasising the provision leaving the whole estate to Kylie, and then had a conversation to the following effect (par 17): Me: Mrs Nagel, are you sure this is what you want? Mrs Nagel: Yes, definitely. Me: Mrs Nagel, I need to be clear with you that this sort of will you instructed me to prepare could be subject to a challenge. Mrs Nagel: Why will this happen? Me: The legislation allows your children to make a claim against your estate. Mrs Nagel: This is what I wanted to do in the will. 1. Mr McKimm and Ms Sutcliffe witnessed Mrs Nagel signing the will dated 8 June 2012. 2. Kylie was in the room during the period that the 2012 will was read over to Mrs Nagel and she was in the room when Mrs Nagel signed it. Mr McKimm said that Kylie was on a mobile phone in the corner of the room, and did not say anything to him or her grandmother about the will during the meeting. 3. Mr McKimm also said that he explained, and then witnessed Mrs Nagel executing, both the power of attorney and the appointment of enduring guardian in favour of Kylie. 4. When Mr McKimm had finished, he went outside Mrs Nagel's room, and a man walked up to him and shook his hand. The man said that he was the son, and Mr McKimm replied that he was a solicitor. 5. When asked in cross-examination whether he recalled how much Mrs Nagel told him she had in the bank, he said it was about $100,000. In fact, the inventory of property annexed to the original grant of probate to Kylie listed the money that Mrs Nagel had in various bank accounts as having a total of $144,110.50. Mr McKimm's recollection was reasonably accurate in the circumstances. 6. Mr McKimm confirmed that he had formed the opinion that Mrs Nagel was lucid and appeared to understand what he was saying, as he said in his affidavit, extracted above. 7. Asked whether it would have been prudent for him to speak to Mrs Nagel's treating doctor about her condition, he said (T 75.50): "Prudent? Well, if I'd formed the opinion that she – there was a capacity issue, yes, I would have taken that step. I didn't feel there was a capacity issue". 8. Mr McKimm said that Kylie seemed to be on the phone "for quite a period of time" when he was going through the will with Mrs Nagel. 9. Asked whether it was imprudent that Kylie was in the room while Mr McKimm was taking instructions and when the will was executed, Mr McKimm conceded that it was "probably less than desirable". He agreed that "I probably should have asked her to step outside". In response to the suggestion that the solicitors' rules say that a solicitor should not have a beneficiary in the room when the solicitor is taking instructions from an elderly testator, Mr McKimm conceded that "it's not the normal course of action, yes". 10. Mr McKimm justified his actions in the following way (T 78.47): Q. Do you not consider that it was appropriate that you should have asked Kylie to step out of the room? A. Well, the situation often was difficult with elderly – elderly people. I see many elderly people and, you know, sometimes they – they seem to like to have a – have the relative nearby. 1. I can see no reason why I should not accept the evidence given by Mr McKimm, and I do so. I accept that Mr McKimm was an experienced solicitor, who had taken instructions from elderly clients on many occasions to prepare their wills. Mr McKimm was an independent witness, and gave his evidence in a candid and credible way. He appeared to speak from recollection. His evidence concerning his understanding of Mrs Nagel's testamentary capacity could only have been based upon his perceptions. There is no reason for the court to find that, if Mrs Nagel had exhibited any objective indication of inadequate mental capacity, Mr McKimm would not have taken some step to establish that she had adequate testamentary capacity. There is no basis for the court to infer that Mr McKimm did not perform his duty competently, at least in relation to being satisfied that his client appeared to have testamentary capacity. The contrary was not put to him in cross-examination. There may be an issue as to whether Mr McKimm should have allowed Kylie to remain in the hospital room, although Mr McKimm had an explanation as to why he tended to allow beneficiaries to be present. On the evidence in this case, Mr McKimm's allowing Kylie to remain in the room is not material. Evidence of Caroline Sutcliffe 1. Ms Sutcliffe gave brief evidence of the circumstances in which she attended the St George Hospital, at around 2 PM on 8 June 2012, with Mr McKimm to witness the execution of Mrs Nagel's will. 2. She confirmed that Kylie was present, that she had been standing next to Mrs Nagel, but got a call on her mobile phone and went over to the corner of the room. She spoke for a short time and then came back. 3. Ms Sutcliffe said that Mr McKimm read the will over to Mrs Nagel, and that the following conversation occurred: McKimm: That means you are leaving everything to Kylie. Mrs Nagel: Yes, that is what I want. 1. Ms Sutcliffe witnessed the execution of the will by Mrs Nagel, and she and Mr McKimm then left Mrs Nagel's room. 2. Ms Sutcliffe's evidence provides inferential support for the finding that Mrs Nagel appeared to have testamentary capacity when she executed the 2012 will. At least, Mrs Nagel's appearance and conduct was not such as to cause Ms Sutcliffe to form any doubt about whether it was appropriate to witness the execution of her will. It was not suggested to Ms Sutcliffe in cross-examination that she saw anything in Mrs Nagel's appearance and conduct that would cast doubt on her testamentary capacity. Evidence of Munevver Bray 1. Ms Munevver Bray swore an affidavit on 1 September 2015. As appears from that affidavit, Ms Bray provided cleaning and gardening services to Mrs Nagel from about 2000 up to the time of her death. 2. After this matter was set down for hearing, and the solicitors for the defendants gave notice to Kylie's solicitors that Ms Bray was required for cross-examination, those solicitors took steps to require Ms Bray to attend court for that purpose. As it has happened, the solicitors could not contact Ms Bray, and process servers retained to serve her with a subpoena to give evidence could not find her. 3. Consequently, Kylie's solicitors served on the solicitors for the defendants a notice of Kylie's intention to adduce evidence of previous representations by Ms Bray pursuant to s 63 of the Evidence Act 1995 (NSW), on the basis that Ms Bray was not available to give evidence. 4. By a separate ex tempore judgment given on 16 February 2016, I ruled that Kylie was entitled to tender the representations identified in her s 67 notice, and the notice was subsequently admitted into evidence as Exhibit AA. 5. Section 63 of the Evidence Act provides: (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 1. This provision permits the receipt into evidence of a representation that is given by a person who saw, heard or otherwise perceived the representation being made. This evidence is what is sometimes called first-hand hearsay. 2. It also permits the court in this case to have regard to the balance of Ms Bray's affidavit, being a document that contains the representations relied upon by Kylie, so far as it is reasonably necessary to do so in order to understand those representations. 3. The s 67 notice specified the following representations, each of which was a statement made by Mrs Nagel to Ms Bray: a. Gai tells me how far she had to travel to visit me and that I am ruining her retirement. b. I am disappointed with Robert. He said he would come over and visit me but he just doesn't arrive. c. Robert called this morning and said he is going to visit, but you know what love, he is not going to. d. I would have been happier if I didn't receive anything from them rather than receiving presents like these, that's what they think of me. e. Gai was complaining that she wasted half the day to come and visit me. f. I didn't tell Kylie I had to have the operation because Kylie would have cancelled her trip. I will be home in a couple of days after the operation. g. I wish Kylie was back love, it's only three more days before my beautiful Kylie is back and I am going to get her to change the will and give everything to Kylie. h. I wish Kylie was back love, Robert came this morning and yelled at me. 1. The s 67 notice also included the following statement made by Ms Bray to Gae: Look they're not poor and there was nothing wrong with Rona's mind or her memory. She chose to leave her things to Kylie. I don't want to get involved and it's got nothing to do with me. Please don't call me again. 1. Kylie also purported to rely on all other relevant representations set out in Ms Bray's affidavit, a copy of which was annexed to the notice. This aspect of the notice was not effective to permit the unidentified representations to be received into evidence, as the notice did not state the substance of the previous representations made by Ms Bray (reg 4(2)(a) of the Evidence Regulation 2015 (NSW)), and the representations were not specified by reference to the affidavit (reg 4(6)). 2. Representations (a) to (h) could only be admitted as evidence that Mrs Nagel made the statements to Ms Bray, as to admit the statements as proof of the facts the subject of the statements would be to receive second-hand hearsay, contrary to the requirements of s 63(2) of the Evidence Act. 3. As appears from Ms Bray's affidavit, representations (a) and (b) were made by Mrs Nagel to Ms Bray on a number of occasions after the death of Mr Nagel, which happened on 11 September 2008. Representation (c) occurred at "other times", which were not identified. Ms Bray did not identify when representation (d) was made, other than to say it was after Robert and his wife had given Mrs Nagel Christmas or Mother's Day presents. Representation (f) was made on an unidentified occasion when Mrs Nagel had to have an operation, and Kylie was due to go overseas on holiday. Representations (e) and (g) were made by Mrs Nagel to Ms Bray on an occasion when Ms Bray visited Mrs Nagel, when the latter was in Hurstville Private Hospital. Representation (h) was made on an occasion when Ms Bray telephoned Mrs Nagel, at a time that she was in the St George Hospital. Ms Bray did not give the times during which Mrs Nagel was in either of the hospitals. Ms Bray said that representation (i) was made to her by Mrs Nagel on many occasions. 4. The representation that Kylie relies upon that consists of the statement made by Ms Bray to Gae was, according to Ms Bray's affidavit, made during a conversation between the two women that occurred a couple of weeks after Mrs Nagel died. The particular representation relied upon was the last statement made by Ms Bray at the end of the conversation. There is little, if anything, in this statement which could be regarded as a relevant representation about an asserted fact that was perceived by Ms Bray. 5. The weight that the court should give to the evidence of the representations made by Ms Bray must be reduced by the fact that the evidence is inherently controversial, and the defendants have been deprived of the opportunity to cross-examine the witness. This deprivation is significant, as the representations are not precise as to timing or context, and there is a basis for the court to infer that they involve a generalised statement of Ms Bray's recollection of the effect of a large number of statements made by Mrs Nagel over a number of years. The weight that should be given to the evidence would be substantially enhanced if Ms Bray had been able to confirm in the witness box that the statements that she attributed to Mrs Nagel were based upon her own unaided recollection of those statements, and that she had not been asked leading questions as to whether she could recall Mrs Nagel making statements of the form X or Y. The statements that Ms Bray has attributed to Mrs Nagel are very close to the statements that Kylie has said her grandmother made to her. That may, of course, be because Mrs Nagel in fact made the same statements on a number of occasions to both Kylie and Ms Bray. Nonetheless, there is cause for doubt as to the source of Ms Bray's recollection of what was said by Mrs Nagel. 6. The evidence of the representations made by Ms Bray does, however, provide some corroboration for Kylie's evidence concerning Mrs Nagel's attitude to her relationship with her children, and also her intention to make a new will to leave her estate to Kylie. That corroboration makes it easier for the court to accept Kylie's evidence on these subjects, which it would have been prepared to do in any event. Evidence of Alan Robert Nagel 1. Robert gave evidence in relatively general terms about his perception that he had a strong, happy and loving relationship with his parents, as did his sisters, and that his parents adored all of their children, grandchildren and great grandchildren. He said that, while Kylie did live off and on with his parents over a period of time, that did not diminish the relationship his parents had with the rest of the family. 2. Robert also gave some general evidence about the care and assistance that he and his sisters provided to his parents and to Mrs Nagel after his father's death. 3. He made some general assertions about Kylie having a volatile temper and being verbally abusive towards his parents, there being an acrimonious relationship between Kylie and his father until shortly before the father's death, and that to his perception Kylie did very little in the actual day-to-day care of Mrs Nagel, due to her own work commitments and reasonably regular extensive overseas travel. 4. Kylie's counsel did not challenge this evidence in cross-examination, but it was expressed in such general terms that I have found it to have little significance. 5. I have no reason to doubt the genuineness of Robert's personal appreciation of his relationship with his mother. The evidence was unavoidably a matter of his own perception. It is not capable of disproving the possibility that Mrs Nagel made the statements of which Kylie gave evidence, which were to the effect that Mrs Nagel was hurt and disappointed by aspects of Robert's conduct towards her. 6. The terms of the alternative gift in the 2012 will, and the instructions given by Mrs Nagel to Mr McKimm to include a term to that effect, have some significance to the issue of what Mrs Nagel perceived her relationship with her children and her other grandchildren to be. As I have found above, during her meeting with Mr McKimm, Mrs Nagel initiated her instruction as to her alternative gift. That instruction differentiated between her children and other grandchildren as to the proportions of her estate that they should receive if Kylie died before her. Robert was to receive 10% of the residue, while Debra and Gae were to receive 40% and 25% respectively. That provides some objective evidence of Mrs Nagel's attitude to her relationship to her children. 7. Whatever the significance of Robert's evidence may be as to his own perception of his relationship with his mother, it is not sufficient to justify the court in finding that the gifts in the 2012 will were at such great odds with the objective evidence of the actual relationship between Mrs Nagel and Robert as to justify an inference that, when she made the will, Mrs Nagel must not have been able mentally to properly process the claim that Robert had on her bounty. 8. Robert said that, when he visited Mrs Nagel on 29 May 2012, he observed she could barely hear, she did not appear to fully understand what was being said to her, and she would drift off to sleep during the conversation. 9. He also gave evidence of what he described as a "confrontation" that he had with Kylie at the hospital on 8 June 2012. It was Robert's recollection that he visited Mrs Nagel and arrived at her room just before Mr McKimm left in the morning. 10. There was a contest between Kylie and Robert (and also his wife, Gail) concerning the nature of the confrontation. Robert said that the confrontation lasted for about an hour, and it consisted largely of Kylie screaming and abusing him, and using swear words in the presence of Mrs Nagel. 11. Robert annexed to his affidavit a two-page statement, dated 9 June 2012, of what he recalled happened during the confrontation. 12. It was put to Robert in cross-examination that, although there was a confrontation, it did not take place in the terms set out in the statement, and was much less violent than the statement depicted. 13. Counsel pointed out to Robert that, even though the nurse entered the room during the confrontation, and the room was close to the nurses' station, there was no record of the confrontation having taken place in the Hospital's notes. That was so notwithstanding an official Policy Directive binding the Hospital that required zero tolerance to violence, and that all actual clinical incidents must be documented in the patient's health record. 14. I do not think that it is either necessary or safe for the court to make any detailed finding as to precisely what occurred during the confrontation. It is likely that the perceptions of the participants were different, and the undoubted animosity between the parties is likely to have coloured their recollections, even if the statement was made by Robert the day after the confrontation. 15. What is clear, and relevant, is that a confrontation did occur in Mrs Nagel's hospital room, after Mr McKimm had left the room. The effect of Mrs Nagel having witnessed the confrontation was to tire her, and as the Hospital's notes attest, Mrs Nagel became significantly more exhausted as the day wore on. 16. The Hospital's occupational therapist, who made a note at 15:00 hours on 8 June 2012, recorded: [Patient] also expressed distress re her family arguing in front of her [and] feels exhausted after this "morning's events". 1. Robert said that, during the confrontation, Mrs Nagel would open then close her eyes, and when she did speak all she said was: "How did it get to this?" Finally she seemed to doze off completely. 2. Robert also contradicted a number of peripheral aspects of Kylie's evidence. I do not think it is necessary for the court to try to resolve these contradictions, which largely involve differences in recollection in relation to relatively insignificant matters. Evidence of Gail Rose Edith Nagel 1. Robert's wife, Gail, gave some brief evidence concerning the assistance that she and Robert gave to Robert's parents from time to time. 2. Gail contradicted a number of peripheral parts of Kylie's evidence, and denied the underlying truth of a couple of statements that Kylie said Mrs Nagel made to her concerning Mrs Nagel's relationship with Robert. 3. Gail also denied "every word" of Kylie's evidence concerning the terms of the confrontation that took place in Mrs Nagel's hospital room on 8 June 2012, and confirmed the evidence given by Robert. 4. Gail said in cross-examination that the argument lasted 10 to 15 minutes and "certainly not" an hour. That evidence was inconsistent with the evidence given by Robert. 5. Gail said that she visited Mrs Nagel twice, and she did not give evidence of visiting Mrs Nagel after 8 June 2012. Evidence of Gae Lorraine Costa 1. Gae gave her evidence by means of an affidavit that was in many respects argumentative, and was openly hostile to Kylie. She gave evidence of saying to Mrs Nagel that she was not on speaking terms with Kylie. She asserted that Kylie had tested the rest of the family, and sought to destabilise the family. She made an unsubstantiated assertion that Kylie was responsible for attempting to exclude any information being given by the St George Hospital's staff to other members of the family. She alleged, without elaboration, that Kylie took active steps to seek to offset any potential intervention in Mrs Nagel's affairs during her lifetime. She went so far as to assert that "Kylie procured execution on 8 June, 2012 of a will" (par 6). She even justified her suggestion to her siblings, on 12 May 2012, that they should view the 1997 will on the basis "that should the Plaintiff decide on her return from China to dispose of the Will because she did not approve of its contents my brother and sister would have a record of the document" (par 19). 2. Gae gave some evidence concerning Mrs Nagel being forgetful and being afflicted in various ways by the effects of her illness. 3. I have not found Gae's evidence to be helpful in resolving the issues in this case. Evidence of Joanne Rose Crowther 1. One of Robert's daughters, Joanne, gave evidence of a single visit to Mrs Nagel on 26 May 2012. 2. She said that she was not able to hold a lucid conversation with her grandmother, who did not appear to recognise her grandchildren. Mrs Nagel did not follow the conversation in the room, and seemed "to fade off into a sort of nap". Joanne was unable to exchange a single full sentence with Mrs Nagel during the 45 minute visit. 3. The Hospital's notes record a visit by Mrs Nagel's granddaughter, at 19:30 hours. The notes record that the granddaughter was "very concerned [about the patient's] condition". Evidence of Debra Anne McNamara 1. The defendants were given leave to file in court on 16 February 2016, the first day of the hearing, an affidavit sworn by Debra on 12 February 2016, and to read some parts of that affidavit that gave evidence concerning Mrs Nagel's testamentary capacity. 2. The affidavit was therefore prepared by Debra some 3 ½ years after the date of the 2012 will. 3. It became apparent during Debra's evidence that she suffered an accident whereby she broke her back on 5 October 2011, which caused her to suffer relatively constant pain, for which she had to take what she described as "mind-altering drugs" in the nature of opioid medication. She also said that she had suffered serious psychological issues, as a result of losing her husband in 2013, and other matters. She said: "I don't sleep"; and she had to go to bed by 7:30 PM each evening, in order to allow her pain medication to be effective in a way that still enabled her to get up the next morning to go to work. 4. I mention these matters only because Debra openly accepted that they affected the precision of her memory of the events that occurred in 2012. 5. Debra gave evidence of what occurred during a visit to her mother's hospital room on 8 June 2012. 6. It appears likely that Debra arrived in the late morning, after the verbal altercation between Kylie and Robert that occurred after Mr McKimm left the room in order to engross Mrs Nagel's draft will. Debra was uncertain of the timing of her arrival, at one stage saying that she was not sure whether it was morning or afternoon. She said that she thought it was before lunch, because she could remember trying to help Mrs Nagel eat her lunch. 7. It must have been after the confrontation between Robert and Kylie, as Debra said that she received a telephone call from Gail, probably after Debra had arrived at the Hospital, in which Gail said that Mrs Nagel may have changed her will. 8. Debra said that she had difficulty having a conversation with her mother, who appeared to have trouble speaking. She was almost incoherent. The words Mrs Nagel used did not make sense to Debra. She said she thought her mother was "off with the fairies". Debra said in evidence on a number of occasions that her mother was dozing, and not very coherent. 9. Debra said that she asked her mother whether the solicitor had come to change her will, and Mrs Nagel had said "No". Mrs Nagel agreed that she had made Kylie her guardian, but she could not get out the words "enduring guardian". 10. Debra said that she could hear loud noises coming from her mother's hospital room as she approached the door, but when she went in only her mother and Kylie were present. 11. Debra also said that, in the hours after Mrs Nagel died, and she visited the Hospital in response to a telephone call from Kylie to tell her of her mother's death, Kylie said to her, for no apparent reason: "Nan changed her Will, it's all coming to me". She also said that the expression on Kylie's face was 'gleeful'. 12. Debra insisted upon the truth of her evidence of what happened after Mrs Nagel's death, when it was put to her in cross-examination that her recollection was incorrect. 13. When asked in cross-examination whether she had been told before the date of the new will by her mother or Kylie or Jayne, that Mrs Nagel proposed to make a new will, Debra said that the subject had not been mentioned by her mother but: "I think Kylie might have said something…I can't answer for sure" (T 218.35). Debra could not recall Jayne raising that subject with her. 14. Debra conceded that she had "vague recollections" concerning the conversation she had with Kylie after her mother died (T 216.45), but quite reasonably referred to the fact that she was extremely upset because she had just learnt of the death of her mother. 15. There was evidence (Exhibit E) that, on 24 June 2014, Kylie sent to Debra by email as attachments copies of Robert's and Gae's affidavits of 28 and 29 May 2014, with Kylie's request that Debra would "not allow them to get away with lying like this". Debra responded on 24 June 2014 at 9:10 PM by saying: "There is a lot that they have said that I believe to be untrue…" 16. In cross-examination, Debra said that she could not remember doing anything more than skimming the affidavits, and she did not give any evidence that elaborated upon her statement that a lot of what had been said she believed to be untrue. 17. Notwithstanding the deficiencies in Debra's recollection of events in 2012, I would generally accept her evidence that Mrs Nagel was drowsy and almost incoherent during Debra's visit. 18. Debra's visit occurred shortly after the confrontation between Robert and Kylie, and that event, together with her earlier effort in giving instructions for her will to Mr McKimm, may have tired her. Further, as will be seen below from my analysis of the Hospital's records, a note made at 12:00 hours recorded that a temperature spike had been noted. 19. However, the note made at 12:00 hours also recorded that Mrs Nagel showed "reasonable orientation" and that she was then "afebrile". 20. Consequently, while it is appropriate to accept Debra's evidence that there were limitations on Mrs Nagel's coherence, that evidence must be weighed in the light of the observations recorded in the Hospital's notes that Mrs Nagel had a reasonable orientation and was not suffering from fever. 21. I accept Debra's evidence that Mrs Nagel denied that she had made a new will. That evidence is consistent with Kylie's concession that she also did not advise members of the family that a new will had been made. It does not necessarily follow, however, that Mrs Nagel made the statement because she had lost sight of the fact that she intended to make a new will. Strictly, she had only given instructions for the new will, and had not yet made it at the time. 22. Mrs Nagel may well have taken the course that she did in order to avoid triggering a family confrontation. 23. I do not place significant weight on Debra's evidence concerning what happened during the morning after Mrs Nagel's death. Debra's evidence was first recorded long after the event. She conceded that she was highly upset, and that her recollection was vague. Evidence of Jayne Ockers 1. The defendants were also given leave on the first day of the hearing to file in court an affidavit sworn by Jayne on 12 February 2016. Part of that affidavit concerned Mrs Nagel's testamentary capacity. 2. Jayne gave evidence of an incident while Mrs Nagel was at the Hurstville Private Hospital, in which Mrs Nagel said that she would not eat her dinner because "someone is trying to poison me". 3. On the same occasion, Mrs Nagel asked her to go to Mrs Nagel's home to get the solicitor's phone number, so that Mrs Nagel could make a new and fairer will, in which she would give her estate equally to Kylie and Jayne. Mrs Nagel said: "Auntie Gail and uncle Robert are like vultures circling, and Auntie Gae and your Mum just want to put me in a home, I don't want to go". 4. Jayne said that she telephoned her mother to tell her that Mrs Nagel wanted to change her will, and that Debra said: "I'll speak to her. Don't worry about it". 5. Jayne also gave evidence of an occasion when she went to the St George Hospital to visit her grandmother on 2 June 2012, at which time Mrs Nagel said that she had been visited that morning by Jayne's auntie Norma and her husband, but that could not have happened because Auntie Norma had been dead for years. 6. Jayne also visited Mrs Nagel on 3 June 2012, and during the visit Mrs Nagel appeared to be in a great deal of pain, and was very confused, and called Jayne "Gae" and "Kylie". She also said that Jayne's aunt and uncle are "going to come after [Kylie]". 7. Jayne also said that she had been told by Joanne "in early June 2012" that: "We think Kylie's changed Nan's Will". Jayne reported this information to Debra, who told her that Kylie had said to her mother that it was only the guardianship that she had taken over. 8. Jayne said in cross-examination that, when Mrs Nagel said that she thought she was being poisoned, she raised the matter with the nurse who said that Mrs Nagel was on lots of medicine and that she was confused. 9. It would be reasonable to accept broadly Jayne's evidence concerning the limited occasions when she visited her grandmother at a hospital and experienced Mrs Nagel making occasional delusional statements. 10. The fact was that Mrs Nagel was subjected to various medications at different times, and the evidence establishes that there were some occasions when she was febrile and delirious. 11. This evidence does not warrant a conclusion that Mrs Nagel was suffering from an underlying, persistent delusional state or dementia, that negated her testamentary capacity, at the times on 8 June 2016 when Mr McKimm was with her for the purpose of the making of the 2012 will. St George Hospital Notes 1. I have reviewed the hospital notes produced on subpoena by the St George Hospital in order to glean what those notes disclose concerning the cognitive function of Mrs Nagel over the period between her admission to the Hospital on 23 May 2012 and her execution of her will on 8 June 2012. I have reviewed the whole of the notes, but it will only be necessary to refer to the more significant entries up to the time when the 2012 will was made. 2. A substantial proportion of the hospital notes could not be interpreted reliably by the court without expert medical explanation. However, many of the entries in the notes have been made in reasonably plain English, which conveys significant information concerning Mrs Nagel's cognitive function at the time of the notes. In particular, it appears that the nursing staff made it a practice to record the state of Mrs Nagel's alertness at the beginning of a shift. 3. The process of reading the hospital notes, most of which are written in handwriting, is not without difficulty, and some entries that appear to be relevant are not legible, and others not sufficiently legible to be interpreted with confidence. It is accordingly necessary to treat the hospital notes with some reserve. I am satisfied, however, that the hospital notes provide a reliable overall picture of Mrs Nagel's cognitive function as observed by the Hospital's staff. 4. Given the complexity of the hospital notes, I will provide references to the observations that I set out below by reference to the 'Hospital Records' book page number. 5. Mrs Nagel was readmitted to the Hospital from the Calvary Hospital on 23 May 2012, at which time she was suffering from sepsis (320), and was febrile and tachypnoeic (suffering from abnormally rapid breathing) (324). 6. On 24 May 2012 at 2:33 hours, Mrs Nagel was recorded as being "well, alert, orientated, although slightly drowsy", but still tachypnoeic (333). She was diagnosed on that date as suffering from urosepsis (337). 7. A note made on 24 May 12 at 10:30 hours states that Mrs Nagel was asymptomatic, that she "feels the same", and that she denied any dizziness (446). 8. On 24 May 2012 at 17:55 hours, Mrs Nagel was drowsy and easily rousable (448). 9. On 25 May 2012 at 9:05 hours, there is a note "febrile" (450). At a time between 16:15 hours and 20:25 hours, there are two notes: "alert and orientated. However confused at times", and "alert and orientated, answering all questions appropriately" (454). 10. There is a note on 25 May 2012 at 20:25 hours, that Mrs Nagel was visited by her granddaughter (455). 11. On 26 May 2012 at 13:35 hours, Mrs Nagel apparently discussed end of life issues, and said that she wished to have treatment in the event of a deterioration in her health, including ICU and intubation (456). 12. On 27 May 2012 at midnight, there is a note that Mrs Nagel was confused since commencement of shift as well as drowsy (460). At 01:00 hours, there is a note that Mrs Nagel was "confused, poor historian and drowsy" (461). At 06:00 hours, it is recorded that Mrs Nagel was "settled but confused at times overnight" (462). 13. On 28 May 2012 at 17:30 hours, Mrs Nagel was alert and orientated (464). At 15:20 hours, there is a note that Mrs Nagel was "lethargic and orientated this a.m." (467). On the same page there is a note: …due to depressed state of mind. [Patient] continually saying "I can't do this". "I can't do this" + "why have my family brought me here, it would be better to die". [Patient] given encouragement… 1. On 29 May 2012 at 12:30 hours, it was recorded that Mrs Nagel was alert but very tired and low in her mood (468). She refused assistance with her dinner from staff, but consumed all of her dinner from her granddaughter (469). 2. On 30 May 2012, there is a note that Mrs Nagel's mental state was quite depressed, and that she stated that she was ready to die (473). At 21:40 hours, she was alert and orientated, and there is another note that she ate all of her dinner with her granddaughter (475). 3. On 31 May 2012 at 11:10 hours, Mrs Nagel was agreeable and cooperative. At 13:50 hours she was alert and orientated, but feeling tired (476). There is a statement: [Patient] still "wishes to die" + believes she will "never leave hospital" + "that her family don't care". [Patient] only tolerates food from Kylie, [patient's] granddaughter. 1. At 19:45 on 31 May 2012, there is a statement that Mrs Nagel's condition was fair but she was very tired. Mrs Nagel was "assisted with meals by granddaughter" (478). 2. On 1 June 2012 at 09:40 hours, Mrs Nagel was described by a physiotherapist as being very fatigued and drowsy (479). At 13:30 hours on the same date, she was lethargic and orientated (481). 3. At 16:30 hours on 1 June 2012, a discussion was recorded between Dr Chuang, Mrs Nagel and Debra, concerning Mrs Nagel's end of life directive. Both Mrs Nagel and Debra agreed that, at that stage, Mrs Nagel should not have aggressive resuscitation but treatments should be continued (482). At the same time there is a note that Mrs Nagel was drowsy but responsive (483). At 21:15 hours, she was drowsy but orientated. She refused to eat dinner, but her granddaughter fed her a little bit when she came in at 19:30 hours (484). 4. Mrs Nagel was alert and orientated at 00.30 hours on 2 June 2012 (484). She was alert and orientated at 10:30 and 21:20 hours (488). 5. Mrs Nagel was also alert and orientated on 3 June 2012 at 05:25 and 13:40 hours (489). 6. There is a note made on 4 June 2012 at 01:30 hours, that Mrs Nagel "has been afebrile all weekend" (492). There is a reference to "last spike at 08:00 on 2/6/12", which I interpret to be a reference to a temperature spike. 7. The physiotherapist made a note on 4 June 2012 at 09:55 hours, that Mrs Nagel said: "how long do I need to endure this for?", and that she fatigued very quickly and was very weak (493). At 12:10 hours, Mrs Nagel was described as being alert and orientated, and it was noted that her family were in attendance (495). At 14:10 hours, it was reported that Mrs Nagel's daughter was in attendance, that her speech had improved and that she "clinically looks bright" (495). 8. At 08:10 on 5 June 2012, there is an entry "afebrile" (497). The same entry was made at 14:00 hours (498). At the same time it was recorded that Kylie had reported that Mrs Nagel had eaten most of her lunch, and that Kylie would revisit during dinnertime to feed her. Mrs Nagel was alert and cooperative at 14:35 (499). 9. There is a note at 10:45 on 5 June 2012 that the family had complained concerning the release of information (498). There is also a note saying that: [Patient's] son – Allen, daughter Gai and Debra estranged from [next of kin] granddaughter Kylie 1. There is a reference at 11:06 hours on 6 June 2012 to Mrs Nagel being malnourished (504). 2. There is a note apparently made during Dr Chuang's rounds at 14:00 hours on 6 June 2012, which included "Lucid. Mentally competent." (505). The same note records the following: Discussed [with] patient personally, agreed in the event of cardioresp arrest, she would not want to be resuscitated, not for CPR, not for intubation, not for [illegible]. Patient is fully aware of Granddaughter's concern re MFR [illegible]. 1. There is another note of the same discussion made by a member of the nursing staff (507), which records that Mrs Nagel was afebrile that morning. 2. The following note was made at 15:00 hours on 6 June 2012, apparently by a social worker (508): P/C also received from [granddaughter] re: [patient] wanting to re-do her will. [Social worker] advised [granddaughter] that hospital staff cannot be involved [with] this & if they want the will re-done they need to organise a solicitor to come to the hospital. 1. On 6 June 2012 at 21:20 hours, there is a nursing note that Mrs Nagel was afebrile, and that she was again fed by her granddaughter (512). 2. A note made during Dr Chuang's rounds at 12:00 hours on 7 June 2012 records: "Afebrile since last night… Looks brighter today. Still weak… (514). 3. On the same day at 14:45 hours, a note was made, apparently by a social worker, of a meeting between the social worker, Dr Chuang and Mrs Nagel (515, 516). The note records that Kylie left the room so as to ensure that she had no influence over Mrs Nagel's decisions. The note records: The [patient] was asked if there were any family members that she did not want to be given information about her medical situation. The [patient] clearly stated that she is happy for her family to be given medical information, so long as this information is given first to her [granddaughter] Kylie & then to the family. The [patient] also clearly stated that should there come a time that she does not have decision-making capacity, then she would like Kylie to be her guardian & decision-making person. Enduring guardianship was discussed [with the patient] and then later [with] Kylie. [Social worker] to provide Kylie [with] written info on Enduring Guardianship. SUMMARY 1 [granddaughter] Kylie is the first point of contact for provision of medical info. 2 The family can then be provided [with] this medical info, so long as [granddaughter] is already aware. 3 The [patient] considers [granddaughter] Kylie her [next of kin] & [social worker] has advised [patient] & [granddaughter] to consider Enduring Guardianship, to make decision-making powers more legal. PLAN – [social worker] to liaise [with patient and granddaughter] in 1/7 to provide Enduring Guardianship written information. 1. There is another note of the same meeting, apparently written by a member of the nursing staff (518). It includes the statement: "All 3 staff felt that at this moment Mrs Nagel was clear minded and lucid with the ability to make decisions for herself". Mrs Nagel said that, if she was not able to make her own medical decisions, then she would like her granddaughter to be the person who made the decisions. 2. At 08:40 hours on 8 June 2012, there is a reference to Mrs Nagel being "febrile" (522). A note made at 12:00 hours on the same date, during Dr Chuang's rounds, records (522): • Temp spike noted again. • Reasonable orientation • … • [Illegible] Afebrile now. • … • Granddaughter (Kylie) aware of recent change in will. • Noted patient (Mrs Nagel) at present is capable of making simple decisions but not complex decisions like financial plan & will amendments. • … • MMSE please 1. Notes written by a member of the nursing staff on 8 June 2012 at 13:20 hours recorded that Mrs Nagel was febrile in the morning at 07.30 and 06.30 hours with 38.5°C (527). The temperature was rechecked at 08.30 hours and found to be 36.9°C. Mrs Nagel was febrile at 12.00 hours and Panadol was administered. Her temperature was 37.3°C at 13.15 hours. 2. At 15.00 hours on 8 June 2012, an occupational therapist attempted to administer an MMSE "for [patient] baseline at current time esp. considering [patient] participation in decision making legally" (528). The test was not completed because Mrs Nagel: became quite drowsy ½ way through assessment & required verbal prompts to continue – it is considered the [assessment] was not true reflection of cognition due to drowsy. [Patient] also expressed distress re her family arguing in front of her & feels exhausted after this "mornings events"… 1. The summary stated, in effect, that Mrs Nagel was agreeable but very drowsy and the MMSE was not completed. Mrs Nagel made errors in short-term recall and concentration but it was difficult to establish deficits due to drowsiness. Mrs Nagel agreed to repeat the test on the following Tuesday, 12 June 2012. The result of the incomplete test was apparently 17/28. Medical expert evidence 1. The defendants called medical expert evidence from Associate Prof. Tuly Rosenfeld, who expressed the view that Mrs Nagel lacked testamentary capacity when she executed her 2012 will. 2. Associate Prof. Rosenfeld is a Senior Specialist in Geriatric Medicine at Prince of Wales Hospital, and also a consultant in private practice. He is Conjoint Associate Professor at the University of New South Wales. 3. He was instructed to express his opinion in terms of the test for testamentary capacity laid down by Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549. 4. Associate Prof. Rosenfeld provided a report dated 28 October 2012, as well as a supplementary report dated 29 August 2015. 5. Kylie called expert medical evidence from Dr John Luke Obeid, who provided a report annexed to his 2 July 2015 affidavit, and a supplementary report annexed to his 25 January 2016 affidavit. 6. Dr Obeid is currently Director of Medical Services (Rehabilitation) at Hills Private Hospital, and a Visiting Medical Officer Geriatrician at a number of hospitals. 7. Dr Obeid was also instructed to provide his opinion as to whether or not Mrs Nagel had testamentary capacity when she executed the 2012 will, by reference to the principles set out in Banks v Goodfellow. 8. Doctor Obeid expressed the opinion that, as at 8 June 2012, Mrs Nagel possessed the capacity to give instructions to her solicitor to draft a will. 9. I am satisfied that both expert witnesses are highly qualified geriatricians, who have brought the full extent of their expertise to the issues in contention, and have explained their opinions in meticulous detail. 10. Given the detail in which both medical experts supported their opinions, it will not be feasible for the court to analyse the whole of their reasoning in minute detail. I will therefore summarise and paraphrase the evidence of the expert witnesses, and focus on the more significant aspects of their reasoning. Associate Prof. Rosenfeld's primary report 1. In outline, Associate Prof. Rosenfeld's opinion may be summarised as follows: 1. Brain disease, such as in Mrs Nagel's case, the onset of early vascular brain disease, as indicated in the brain scans, leads to an erosion of a range of cognitive functions [3.2.1]. 2. Executive functional impairment will impact on capacity to undertake a range of legal and other decision-making activities. Generally the greater the complexity of the task, the greater the impact on capacity for that task [3.2.4]. 3. There is considerable specific clinical documentary evidence pertaining to a time in Mrs Nagel's life where the presence of underlying brain disease is evident and of significance, but subtle to the extent that, at that point, her impairments were not evident to a degree that capacity in general, or specific capacities, were even considered [3.2.5]. 4. The presence of early, even mild and not clinically apparent, brain disease or symptoms, reduces brain and cognitive reserve so that illness and a range of other adverse factors, infection, or even dislocation lead to worsening confusion and impaired cognitive functioning [3.2.6]. 5. Mrs Nagel was confused with documented evidence of delirium at various times and in particular the date on which she signed the will. Mrs Nagel underwent cognitive testing which, while incomplete owing to her condition indicated impairments in cognition [6.1]. 6. The MMSE is a screening test used for screening for the presence of cognitive impairment. While Mrs Nagel's score of 17/28 involved an incomplete test owing to drowsiness, the specific responses Mrs Nagel made to questions she was able to respond to are indicative of significant cognitive impairment and clouded consciousness and cognition on 8 June 2012. Her drowsiness was, taking into account other clinical documentation, indicative of her severe illness and parlous medical status [6.1]. 7. The observation charts indicate clinical features that are consistent with and indicative of Mrs Nagel being very ill, breathless and requiring oxygen, with high swinging fever and elevated heart rate. Mrs Nagel was likely to be suffering from reduced cognitive function and probably confusion/delirium in association with her illness and poor clinical state [6.2]. 8. There is evidence in the affidavit of Kylie indicative that Mrs Nagel was suffering from abnormal thinking that may have constituted paranoid or delusional thoughts regarding the influence or actions of her family [6.11]. 9. Mr McKimm did not test whether Mrs Nagel understood the monetary value or worth, even in approximate terms, of her estate [6.12]. 10. Mr McKimm's interpretation of Mrs Nagel's capacity, without formal confirmation, testing, consideration of her illness and the effects that would be likely to have on her capacity, is likely to be inaccurate [6.12]. 11. Mrs Nagel's severely ill clinical status at the time was superimposed on a degree of underlying brain disease as indicated in the findings of the brain scan and symptoms reported in the affidavits. The effects of severe illness superimposed on underlying brain disease would invariably lead to impaired cognitive function and reduced capacity [7.1.3]. 12. It is likely that Mrs Nagel understood the purpose of a will [7.2]. 13. There is no clear indication that Mrs Nagel understood the worth, in monetary or value terms, of the extent and nature of her property and the value of her savings or other assets [7.2]. 14. There is no indication, in indicating that different members of her family would have various percentages allocated to them should Kylie die, that Mrs Nagel understood the value of the benefits to them [7.2]. 15. It is unlikely that Mrs Nagel, in her ill state, suffering from severe systemic sepsis (infection) confusion, need for oxygen, raised heart rate, ill and drowsy state, was able to properly discriminate, reason and compare a range of conflicting ideas and memories that would have been relevant to her task to resolve and decide upon the conflicting issues comprising her testamentary decision making between the various members of her family [7.2]. 16. While there is no definitive indication that psychiatric disturbance, paranoia or persecutory delusions directly affected her testamentary intentions on 8 June 2012, Mrs Nagel did indicate to nursing staff her belief that her family did not care about her (see clinical notes 31 May 2012) and expressed to the occupational therapists her distress about her family arguing in front of her. It appears from Kylie's affidavit that Mrs Nagel indicated to Kylie that she was scared of other members of her family. To the extent that her feelings were based on misperceptions of the actual situation it would be reasonable to consider that her affections were affected adversely. A factor in forming those beliefs and fears regarding her family were related to and affected by a cognitive impairment and worsened by her ill and vulnerable state [7.2]. 1. A number of answers that Associate Prof. Rosenfeld gave in cross-examination illuminated important aspects of his report. 2. At T 167.26, Associate Prof. Rosenfeld was asked about his opinion that there is material in the Hospital's notes to indicate that Mrs Nagel had dementia: Q. You say there is material in the notes, in the progress notes, to indicate that the deceased had dementia? A. I - I think I've indicated that in my report. Mrs Nagel had a range of indications in the occurrences. During her admission the actual occurrence of delirium is an indication of underlying cognitive impairment and it's a very important point to make. It's well accepted that if - if I was in hospital with a temperature of 39, I would not likely have a delirium, but in an older person with underlying dementia, even a subtle dementia, the occurrence of delirium is a - is a very prominent indicator in my practice that underlying brain failure, brain disease, brain erosion, is present. So that's number one. The number two is that the occupational therapy responses, in - and my interpretation of those responses, as I've indicated in my report, indicate the presence of significant cognitive impairment, not necessarily delirium because she was able to respond and able to indicate and able to attend to the responses to respond to the occupational therapist, and her responses indicated significant cognitive impairment that I would interpret, in my opinion, with the presence of underlying dementia. 1. He agreed, at T 168.13, that it was his position that Mrs Nagel had underlying brain disease, but it was subtle and not obvious. It was not "clinically showing". He said at T 168.23: Q. So a clinician may not see it? A. An expert clinician like myself would see it. Q. A less expert clinician may not see it? A. Correct. 1. Asked to explain an item in the notes to the effect that all staff felt at the time that Mrs Nagel was clear-minded and lucid and able to make decisions for herself, the following cross-examination occurred at T 171.8: Q. That's what they've written, so you would accept that that's what they believed to be? A. They believed it because they are not experts around giving - assessing people for their ability to make decisions about powers of attorney, about enduring guardians, about end-of-life decision making. It's a complex issue, which I do a lot, and I'm sure Dr Obeid does a lot, and it's a very complex issue. So, for instance, they haven't indicated that - that Mrs Nagel is aware of what a power of attorney is, or she just - they just made a blanket statement that they think that her decision making generally is okay. Dr Obeid's primary report 1. Dr Obeid attributed a substantially different significance to the evidence bearing upon Mrs Nagel's testamentary capacity than did Associate Prof. Rosenfeld. Again, paraphrasing what I consider to be the most significant aspects of Dr Obeid's reasoning, he said in summary as follows: 1. There was no history of cognitive impairment. A cerebral CT scan performed on 1 June 2012 was reported to show mild deep white matter ischaemic disease plus atrophic changes. These changes are very common in older people with a history of vascular risk factors (such as diabetes, ischaemic heart disease and hypertension). The changes are a risk factor for vascular cognitive impairment but, of themselves, are of no significance (emphasis in original) [1.9]. 2. In the period 23 March 2012 to 23 June 2012, Mrs Nagel was admitted to St George Hospital with a urinary tract-related sepsis syndrome. A number of complications arose including delirium [1.10.8]. 3. Delirium is a reversible syndrome of cognitive impairment, usually precipitated by acute medical problems characterised by recent onset of symptoms, fluctuating awareness (level of consciousness), and impairments in memory, attention and thinking [1.11]. 4. Staff at the hospital noted that Mrs Nagel was capable of consenting to operative procedures [1.12.2]. In the Admission and Discharge Risk Assessment form completed on 25 May 2012, the staff member noted that Mrs Nagel was alert and that there was no evidence or history of any changes to memory, thinking, concentration or decision-making ability [1.12.3]. 5. There were consistent reports suggesting that Mrs Nagel was in delirium in the period 26 May 2012 to 1 June 2012 [1.12.4 and 1.12.5]. 6. Thereafter, it was generally noted that Mrs Nagel was alert and orientated [1.12.6]. The only exceptions in the period up to 13 June 2012 were at 15:30 hours on 7 June 2012 and 15:00 hours on 8 June 2012, when the occupational therapist noted that Mrs Nagel was "drowsy", and at the later time that she felt "exhausted after this morning's events" [1.12.6 and 1.12.7]. 7. Mrs Nagel's condition clearly changed on 13 June 2012, from which time she was more often than not noted to be drowsy, unable to follow instructions and at times not able to obey commands [1.12.8]. 8. There is evidence that Mrs Nagel remained quite consistent in her thoughts throughout her last illness, even when she may have been suffering from delirium. Dr Obeid referred to the evidence of Mrs Nagel's preference for purée food, and her decision from 6 June 2012 that she did not wish to be resuscitated in the in the event of cardiac arrest [1.13]. 9. On 7 June 2012 at 16:30 hours, a hospital staff committee met with Mrs Nagel with the specific intention of ascertaining her ability to make decisions for herself with regard to how information about her was to be passed on to family members, and who would make decisions for her if she became unable to make decisions. The notes record that Mrs Nagel was clear-minded and lucid with the ability to make decisions for herself [1.15]. 10. On 8 June 2012, the day Mrs Nagel made her will, there are no specific indications from the medical records that she was cognitively impaired, even though it was noted that she had a fever at 6:30 hours. The fever had resolved by 8:30 hours; recurred at 12:30 hours but resolved with paracetamol, only to return at 20:40 hours. Nursing notes do not indicate any cognition issues at that time [1.16] 11. In relation to the note at 12:00 hours on 8 June 2012, by Dr Chuang's registrar: "noted patient at present is capable of making simple decisions but not complex decisions like financial planning and will amendments", Dr Obeid observed that it was not clear from the entry how the doctors came to such a conclusion. No specific test of capacity was applied and the doctors do not appear to have had any knowledge of the contents of the will or the value and complexity of the estate. It is therefore difficult to ascertain how they might have decided that Mrs Nagel lacked capacity to "make amendments" to a will [1.17]. 12. Dr Obeid's view of the incomplete MMSE result on 8 June 2012 was that an MMSE is a poor test in the setting of delirium. It is validated as a screening tool for use with older people to detect dementia. In the presence of possible delirium it neither confirms nor refutes the presence of cognitive impairment [1.18]. 13. At 8 June 2012, Mrs Nagel had fever and was recovering from a recent delirium, which appeared to have abated 3 or 4 days before [2.1]. There is no evidence in the medical records that Mrs Nagel was so impaired as to have altered her ability to think rationally and deal with her assets [2.2]. Mrs Nagel had a very simple estate [2.3]. There was very little if any evidence of significant cognitive impairment [2.5]. 1. It appears that Dr Obeid placed more reliance on the objective evidence of the lay and medical witnesses than did Associate Prof. Rosenfeld. He relied upon the fact that there had been no history of dementia or impaired cognition reported concerning Mrs Nagel. He disagreed with Associate Prof. Rosenfeld in relation to the proposition that the evidence of the onset of early vascular brain disease would necessarily mean that Mrs Nagel would suffer from impaired cognition, even if not accompanied by objective symptoms. Vascular brain disease according to Dr Obeid only means a greater risk that a person will develop cognitive impairment. Dr Obeid distinguished the periods from 26 May to 2 June 2012 and 13 June to 23 June 2012, when there was evidence of consistent delirium, from the period between 2 and 13 June 2012, when there was only isolated evidence of delirium. Dr Obeid relied upon the positive evidence recorded by the medical staff of Mrs Nagel being alert and orientated and able to make decisions for herself, particularly in relation to end of life issues. Associate Prof. Rosenfeld's response 1. In his response to Dr Obeid's report, Associate Prof. Rosenfeld adhered to the reasons that he gave in his own report. In particular, he repeated that there was strong evidence that Mrs Nagel suffered from brain disease and "that dementing illness and the symptoms that trained clinicians are able to identify, occur well before patients so suffering present for investigation treatment and diagnosis" [4.2.2]. Associate Prof. Rosenfeld insisted that Mrs Nagel had brain disease, as evident from her brain scan. He said: "Mrs Nagel had clear and tangible evidence of brain disease evident on her brain scan and she suffered the symptoms and signs associated with that disease during her illness". He said: "Older people suffer from high prevalence rates of dementia, undiagnosed dementia, and significant cognitive impairment" [4.2.3]. 2. Perhaps Associate Prof. Rosenfeld's views were finally stated at [4.2.7]: Delirium in an older person suffering from illness can be subtle and remain unidentified if not specifically tested for. Clinical staff who have not specifically tested for features of cognitive impairment associated with underlying dementing illness or delirium will often, in my experience, not be aware or be able to identify the presence of these issues. That Mrs Nagel suffered from episodes of delirium that were clearly documented during her illness indicates, in my experience, the considerable likelihood that delirium was present at other times even though specific testing may not have occurred. In my view and from my experience, delirium is not an 'on or off' phenomenon. Having suffered from delirium during her admission and very significant illness, her delirium would have been present to a degree for some time after it was recognised. In the context of my comments above it is further likely that Mrs Nagel was suffering from degrees of delirium before it was recognised formally in the clinical notes. Delirium, particularly when it occurs in an older person, usually, in my experience always, it takes time, usually weeks and even months to entirely resolve. Dr Obeid's response 1. In his own response, Dr Obeid generally repeated aspects of his earlier reasoning, focusing on the importance of there being evidence that Mrs Nagel suffered from dementia. The issue is not whether brain disease was present, but whether functional impacts have resulted. It is necessary to distinguish between disease and disability. It is not important whether every trace of delirium has ceased to exist. "A mild delirium may well affect a person's ability to deal with a highly complex estate but not have the same impact on a relatively simple estate": [8]. Legal principles 1. The principles that govern the validity of wills in cases where capacity and knowledge and approval are in issue have been laid down by Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285. As this is a recent statement by a unanimous Court of Appeal, I will set it out at some length: [44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21 ; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22 ; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657–658; Atter v Atkinson (1869) LR 1 P & D 665 at 668 and 670; Nock v Austin [1918] HCA 73 ; 25 CLR 519 at 522, 528. [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97–98 ; 140 ER 671 at 675–676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13 ; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562–563; Robertson v Smith [1998] 4 VR 165 at 173–174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484–485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523–524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. [48] In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. 1. It is generally accepted that the test for determining testamentary capacity is that set out by Cockburn J in Banks v Goodfellow (1870) 5 QB 549. In A v N [2012] NSWSC 354, Ward J (as her Honour then was) explained this test in the following way: [399] In Bull v Fulton (1942) 66 CLR 295 at 341–2, Williams J noted that "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants (Burdett v Thompson)". Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3) adumbrated the three "R's" in the context of considering testamentary capacity, 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. … 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. [400] The relevant principles that a court must consider, when determining whether a person has testamentary capacity (and as to which Professor Dickson and Mr Ward were both disposed to agree that E had as at December 2007), are therefore whether the testator is aware, and appreciates the significance, of the act in the law upon which the testator is about to embark; whether the testator is aware "at least in general terms" of the nature, extent and value of the estate over which the testator has a disposing power; and whether the testator is aware of those who may reasonably be thought to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons; and the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons. 1. To a similar effect, in Beverley v Watson [1995] ANZ ConvR 369, Owen J described the test for testamentary capacity in the following way at 372: In Timbury v Coffee [1941] 66 CLR 277 Dixon J at 283 approved this statement taken from In the Will of Wilson [1897] 23 VLR 197 at 199: "Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner." This test was explained in Crago v McIntyre (supra) where Holland J said at 740-1: "In establishing that test the courts have endeavoured to reconcile acceptance of the right of a testator to dispose of his property as he pleases with a desire to protect the interests of those whom society has accepted as having a moral claim on a testator's bounty. For this reason it is not enough for the testator to know and understand how he is leaving his property when he executes his will. He must also possess sufficient capacity to appreciate what his property is and recognise the persons who have a moral claim upon him and, more importantly for present purposes, a capacity to exercise a balanced judgment as to such claims. 1. It is not necessary to prove that the testator actually, or properly, considered the claims of the persons to which he or she should give effect: see King v Hudson [2009] NSWSC 1013 at [51] per Ward J (as her Honour then was) which was followed by Hallen AsJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 at [253]; and by Stevenson J in Re Estate of Tsilfidis; Stavrakakis v Tsilfidis [2015] NSWSC 1720 at [90]. See also the discussion by White J in Estate of George Aeneas Mcdonald; Howard v The Sydney Children's Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 at [57] to [64]. It is only necessary to establish that the testator was capable of rationally considering and deciding the claims of persons who might reasonably expect to share in the testator's bounty. If the testator has that capacity, it is of no concern to the court whether or not the testator has disposed of his or her estate in a manner that is fair and reasonable, or whether or not the reasonable expectations of all persons who had a claim on the testator's bounty have been realised. 2. The issue of capacity must be determined having regard to the facts and the subject-matter of the particular case: see Gibbons v Wright (1954) 91 CLR 423, at 438 per Dixon CJ and Kitto and Taylor JJ, where their Honours approved the following extract from the judgment of Hodson LJ in Estate of Park (1954) P 112 at 136: … one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case. 1. As White J observed in Re estate of Stanley William Church [2012] NSWSC 1489 (upheld on appeal in Church v Mason [2013] NSWCA 481) at [53]: "It is well settled that what is required for a person to have testamentary capacity will vary according to the complexity of the will and the officiousness or inofficiousness of the will". White J set out the following extract from the judgment of Owen J in Brown v McEnroe (1890) 11 NSWR Eq 134: Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty, then full and clear evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide. 1. It is necessary to bear in mind, however, that wills are often made by people who are advanced in years, and who suffer from infirmities that may adversely affect their ability as a testator to exercise the mental functions that are necessary for the presence of testamentary capacity. However, it does not necessarily follow from the presence of apparent infirmities and the disabilities caused by those infirmities that the testator will lack testamentary capacity. In Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, Kirby P (as his Honour then was) said (dissenting in the result) at 295 (6) 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: see Banks, above, at 560. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. 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. 1. As Meagher JA said in the extract from Tobin v Ezekiel set out above, once testamentary capacity has been established, it remains necessary to prove that the testator knew and approved of the contents of the will. Even where a testator has testamentary capacity, the testator may sign a document, whether by misconduct or misadventure, that does not contain terms that accord with the testator's instructions or wishes. A testator may have the cognitive abilities necessary for the presence of testamentary capacity, but suffer from some cognitive deficit that prevents them from actually knowing and approving the terms that are contained in the will that they execute: see Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, where I was recently required to consider this issue at [430] to [474]. 2. In the present case the defendants alleged not only that Mrs Nagel lacked testamentary capacity, but also that she did not know and approve of the terms of the 2012 will. However, it does not appear to me that the defendants have attempted to make out a case that, even if the court finds that Mrs Nagel had testamentary capacity, the evidence establishes that she did not know and approve of the terms of the will. The defendants' case is comprehensively reflected in the reports of Associate Prof. Rosenfeld, and there is no suggestion in those reports that Mrs Nagel lacked the mental ability to know and understand what the terms of the 2012 will were, even if she did have the testamentary capacity to make that will. 3. Notwithstanding this doubt as to whether the defendants, at the end of the day, put a case of absence of knowledge and approval, it will be appropriate to consider whether it should be found that, even if Mrs Nagel had testamentary capacity, she did not know and approve of the terms of her 2012 will. Consideration 1. It is an appropriate place to begin the consideration of whether or not Mrs Nagel had testamentary capacity, and knew and approved of the terms of her will, by recognising that it was Mrs Nagel who made the 2012 will. She made the necessary decisions and implemented them. She gave her instructions directly to Mr McKimm; he discussed the possible consequences of implementing those instructions; he then prepared a draft will in accordance with the instructions; he read out the terms of the will to Mrs Nagel; and she then executed the will duly in accordance with the requirements of the law. 2. The fact that Mrs Nagel had the mental competence to take those steps, without any apparent disability in the process of giving the necessary instructions and executing the document, is itself weighty evidence that Mrs Nagel had testamentary capacity. 3. Kylie assisted Mrs Nagel in arranging for Mr McKimm to attend upon her in her hospital room, and while, on her own concession, she discussed with her grandmother her desire to make a new will, and heard of her grandmother's intention to give the whole of her estate to Kylie, there is no evidence that Kylie had any role in the actual preparation of the document. 4. Kylie denied that she instigated her grandmother's desire to leave her the whole estate, and the defendants did not contradict Kylie's evidence or put an alternative case to her in cross-examination. 5. The only question is whether Mrs Nagel's actions in making the 2012 will were ineffective in law because she did not have testamentary capacity, or did not know and approve of the terms of her will. 6. Kylie, as the proponent of the 2012 will, has the onus of proving that Mrs Nagel had testamentary capacity and knew and approved of the terms of her will. 7. The 2012 will is rational on its face and was duly executed. That would ordinarily lead to a presumption that Mrs Nagel was mentally competent, unless circumstances existed which raised a doubt as to the existence of testamentary capacity. 8. The existence of those circumstances will shift the evidential burden onto Kylie to show that Mrs Nagel was of "sound disposing mind". 9. The question would then be whether, on the evidence as a whole, the doubt as to the existence of testamentary capacity is resolved, and the court is affirmatively satisfied that Mrs Nagel had testamentary capacity. 10. In this case circumstances do exist which raise a doubt as to the existence of testamentary capacity. Those circumstances are to be found in the evidence of Mrs Nagel's medical condition, and the physical and mental consequences of that condition, primarily as detailed in the Hospital's notes. 11. If it is established that that Mrs Nagel had testamentary capacity, as there is evidence that the 2012 will was duly executed, it will be presumed that Mrs Nagel knew and approved of the contents of the will at the time she executed it. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of Mrs Nagel. The suspicion must be related to the preparation or execution of the will, or its extrinsic terms. 12. Once a presumption of knowledge and approval is displaced, Kylie must prove affirmatively that Mrs Nagel knew and approved of the contents of the document. Knowledge and approval 1. It will be convenient to begin by assuming that Mrs Nagel had testamentary capacity, and to consider whether suspicious circumstances have been shown to exist, and if so, whether Kylie has established that Mrs Nagel knew and approved of the terms of the 2012 will. 2. It may be argued that suspicious circumstances may be found in: (1) Kylie had almost exclusive access to Mrs Nagel in the period immediately before the 2012 will was made; (2) Mrs Nagel was substantially weakened by her medical condition, so that even if she had testamentary capacity, she may by reason of delirium, lack of concentration or drowsiness have failed to understand the contents of her draft will; and (3) Kylie remained present for most of the time Mr McKimm was with Mrs Nagel for the purpose of taking instructions and arranging for the draft will to be executed. 3. It is debatable whether, in the particular circumstances of this case, the circumstances could create a "well-grounded suspicion" as to whether the 2012 will expressed the mind of Mrs Nagel, given that Mrs Nagel was the sole apparent author of the instructions for her will during the presence of Mr McKimm. The suspicion would have to be that Mrs Nagel was so mentally incompetent that she was unable to make decisions for herself, and was simply replaying to Mr McKimm instructions that had been insinuated into her mind by Kylie. 4. Nonetheless, the circumstances are so unusual, and it is undeniable that Kylie had almost exclusive access to Mrs Nagel in her weakened state, that it is necessary to find that suspicious circumstances existed. 5. However, the nature of the evidence that is necessary to overcome the suspicion, assuming testamentary capacity in Mrs Nagel, should be assessed on the basis that, given the manner in which Mrs Nagel gave her instructions and executed her will, the only way she could not have understood what the will contained was if Kylie was able to, during her time alone with Mrs Nagel, take advantage of some cognitive deficit that allowed Kylie to insinuate the terms of the will into Mrs Nagel's mind in a way that she was capable of repeating to her solicitor, but not actually understanding. 6. This is not a case where Kylie had any opportunity to influence the wording of the draft will by taking part in the actual preparation of the document, and there is no way that the draft will could have contained terms that were not known to Mrs Nagel because of some involvement by Kylie in the preparation of the draft. 7. On the contrary, in this case Mrs Nagel herself dictated the terms of her will to Mr McKimm. Those terms were relatively simple. Mrs Nagel discussed the potential consequences of making a will in those terms with Mr McKimm, and her response suggested that she was fully aware of those terms. The primary term was the simple one that the whole of Mrs Nagel's estate would be given to Kylie. Mrs Nagel was aware of the nature of her assets, including the amount of money that she had in the bank. She had in her purse a list of her bank deposits. Mr McKimm read the terms of the will out to Mrs Nagel, and expressly confirmed that the will was in accordance with her wishes, in the context of Mrs Nagel being warned that a will in those terms could be subject to a challenge. 8. The evidence establishes that Mrs Nagel was lucid and alert when she gave her instructions and executed her will, and to the mind of an experienced solicitor in the position of Mr McKimm, appeared to understand what was happening and appeared to be able to respond rationally. 9. This is a case where, on the issue of knowledge and approval of the terms of the will by the testator, evidence that the testator gave instructions for the will and that it was read over to the testator, is the most satisfactory evidence of actual knowledge of the contents of the will. Testamentary capacity 1. The question is therefore whether Kylie has carried the evidentiary burden of affirmatively satisfying the court that Mrs Nagel had testamentary capacity when she executed the 2012 will. 2. It must be remembered that what needs to be established is, put simply, that Mrs Nagel knew what the general nature and effect of making a will was, that she was able to remember what her property was, and its approximate value, that Mrs Nagel knew who had claims upon her testamentary bounty, and that she had the mental capacity to reflect and reason so that she could judge, having regard to her assets, how far, if at all, she should give effect to the claims. 3. If Mrs Nagel is shown to have had the mental capacity to know and do those things, it will not matter if the testamentary decision that she made was unreasonable or capricious. 4. It seems clear that Mrs Nagel knew that she was making a will, and what the general nature and effect of making a will was. That was accepted by Associate Prof. Rosenfeld. 5. In the present case, there is positive evidence that Mrs Nagel actually knew of the nature of her assets, because she discussed those assets with Mr McKimm. There was mention of her real property, as Mr McKimm was aware that she owned the property. Mrs Nagel informed Mr McKimm of her understanding of the money she had in the bank, and Mr McKimm was able to remember in cross-examination that the amount was in the order of $100,000. Mr McKimm also gave evidence that Mrs Nagel obtained a list of her bank accounts from her handbag. 6. Mrs Nagel was also aware of the persons who had a claim on her estate, because she named all of them when she dictated her instructions to Mr McKimm. While she instructed that her whole estate should be given to Kylie, in the event of Kylie's prior death, Mrs Nagel listed all of the alternative beneficiaries in a way that shows that she was well aware of who they were. 7. The real question is whether the effect of Mrs Nagel's medical condition was to deprive her of the mental capacity to judge the relative weight of the claims, and to reason as to how far she should give effect to the claims. 8. In this case the actual terms of the instructions given by Mrs Nagel provide some evidence on the issue of whether she had the necessary reasoning capacity. 9. The instructions themselves show a process of reasoning; that is, the whole of the estate to Kylie, but if Kylie dies first, to Mrs Nagel's family in graded proportions. Those gradations suggest that, in fact in this case, Mrs Nagel weighed the claims of her other family members on her bounty. Whether or not the proportions that she decided upon were fair or reasonable, her instructions are consistent with the making by Mrs Nagel of relatively fine judgments as to the appropriate share in her estate to be received by each of the claimants, based upon Mrs Nagel's perception of their entitlement, or their relationship with her. 10. I interpolate that, apart from some evidence that Jayne had five children which she had to support, there was no evidence as to the material circumstances of the other claimants. The court does not have evidence that some of the claimants were in particular need of support, such that the failure of Mrs Nagel to provide for those claimants suggests that she might not have been mentally able to weigh their claims properly. 11. There was no evidence that Mrs Nagel had any obvious pre-existing delusions, or dementia, or any other cognitive deficiency. That would suggest that the relevant question is whether the effect of her illness in the period leading up to her death deprived her of testamentary capacity. 12. This is an appropriate point to address the conflict in the evidence of the medical expert witnesses, as Associate Prof. Rosenfeld expressed the opinion that Mrs Nagel did lack testamentary capacity, because of the evidence of the onset of early vascular brain disease, which had a material effect on her cognitive ability, when overlain with the consequences of her medical infirmities. 13. For the purpose of resolving the issue of whether Mrs Nagel had testamentary capacity I have, after careful consideration of the medical experts' reports, arrived at a determination that is consistent with the conclusions reached by Dr Obeid, rather than Associate Prof. Rosenfeld. 14. In reaching that conclusion, I have not so much determined, as a matter of technical medical science, that the opinions expressed by Dr Obeid are correct, and those expressed by Associate Prof. Rosenfeld are incorrect. I doubt the capacity of the court to resolve the scientific differences between the two experts in any valid way. 15. The fact is, for obvious reasons, that neither medical expert had the opportunity to interview Mrs Nagel while she was alive at the time she made the 2012 will. It does not follow from that fact, of course, that the provision of medico-legal opinions is unhelpful or unreliable, but it does introduce the need for the court to balance the significance of observational evidence of the conduct and appearance of the testator at the time the will was made, with the deductions of the medico-legal experts made after the event. 16. I have found the approach adopted by Dr Obeid to be more consonant with the requirements of the legal principles that govern the existence of testamentary capacity, than the approach adopted by Associate Prof. Rosenfeld. 17. The evidence from a brain scan given to Mrs Nagel establishes that she had mild deep white matter ischaemic disease plus atrophic changes, in Dr Obeid's language, or early vascular brain disease, in Associate Prof. Rosenfeld's words. The medical experts accepted that, prior to her admission to the Hospital, there was no objective appearance that Mrs Nagel suffered from any cognitive deficit as a result of the disease and changes. It is clear that Mrs Nagel was not considered to be suffering from any form of dementia. 18. While each case must necessarily depend upon its own facts, the court should hesitate to find that a testator lacked testamentary capacity by reason of the presence of some brain disease that had not previously manifested in any cognitive dysfunction, unless in a relatively direct scientific way it can be proved that the disease undermined the testator's testamentary capacity at the time of the making of the will. Great mischief would arise if the court was too ready to entertain challenges to testamentary capacity based upon incipient brain disorder that did not cause persons dealing with the testator at the time to doubt the testator's testamentary capacity. 19. In this respect, I prefer the opinion of Dr Obeid, that the presence of early vascular brain disease is a risk factor. While I accept the principle expressed by Associate Prof. Rosenfeld that such disease may in a particular case exacerbate mental dysfunction arising from other causes, the court should not conclude, from bare presence of the disease, that the testator lacked testamentary capacity. 20. On the evidence in the present case, the proper approach is for the court to take the evidence of Mrs Nagel's mental dysfunction as it finds it, on a day-to-day basis, and to assess whether the effect of that dysfunction was to deprive her of testamentary capacity. 21. On that basis, Mrs Nagel was a person who was not suffering from any pre-existing and continuing mental dysfunction, such as dementia. She was suffering from serious medical infirmities that ultimately progressed to a state that was fatal to her. Her underlying sepsis led to episodic fevers and delirium, and she was sometimes drowsy, and at other times exhausted. 22. The medical expert witnesses also differed in-so-far as Associate Prof. Rosenfeld expressed the opinion that any delirium experienced by Mrs Nagel would continue to have effect, after Mrs Nagel appeared to lay and even medical observers to have recovered her cognitive function. He went so far as to opine that testamentary capacity could be excluded by the residual effect of delirium that was only detectable by medical professionals with particular expertise and experience, such as his own. Dr Obeid, on the other hand, was prepared, so to speak, to accept the cessation of delirium at face value. 23. In my view, the court should hesitate to find that a testator, who suffered delirium at some time before the making of the will, but has apparently recovered, to the observation of reliable observers, lacked testamentary capacity by reason of the continuing effect of the delirium, unless the evidence of the testator's actions is inconsistent with the testator having testamentary capacity. 24. Associate Prof. Rosenfeld made a number of references to evidence that Mrs Nagel's reactions to the members of her family, other than Kylie, were not rational in relation to the true, objective relationships, so that even though it was true that Mrs Nagel did not suffer from delusions concerning the relationships, doubt was cast on her actual capacity to properly weigh the claims on her bounty by those family members. I have not accepted Associate Prof. Rosenfeld's underlying premise, that the views expressed by Mrs Nagel to Kylie were so irrational, whether fair or justified or not, that the expression of those views was inconsistent with Mrs Nagel having testamentary capacity. 25. I do not think it is correct to consider the issue of testamentary capacity limited to the precise time when Mrs Nagel executed the 2012 will, or even the two periods on 8 June 2012 when she was attended upon by Mr McKimm. It is more appropriate for the court to take into consideration the evidence of Mrs Nagel's mental capacity for the whole of the period that she was directly concerned with making a new will. 26. While I have generally accepted Kylie's evidence concerning Mrs Nagel's intention over the years following her husband's death to make a new will, the fact is that Mrs Nagel's desire was not so urgent that she insisted that Kylie make the necessary arrangements. 27. As Dr Obeid noted in his supplementary report at par 3, in May 2012 Mrs Nagel consistently expressed to her doctors the wish to be resuscitated, but as her stay in hospital continued, it became necessary for Mrs Nagel to confront end of life issues, and for that purpose formal discussions occurred with her treating doctors. As appears from my analysis of the Hospital's records above, one such discussion occurred on 6 June 2012, and on 7 June 2012, the doctors also discussed with Mrs Nagel the appropriateness of appointing an enduring guardian. Mrs Nagel's medical condition deteriorated, and as June progressed she changed her instructions and consistently expressed her wish to be allowed to die. 28. I find that on, or shortly before, 6 June 2012, Mrs Nagel came to appreciate that there was a real prospect that her death may be imminent, and that it had become relatively urgent for her to put her affairs in order, which principally would require her to make her final will, if she wished to do so. 29. Consequently, she raised with Kylie her desire for a solicitor to be asked to attend upon her with sufficient urgency to cause Kylie to comply with the request. 30. I am satisfied that Mrs Nagel must have formed a definite intent to make a new will at some time before Kylie approached the hospital social worker on 6 June 2012, to seek assistance as to whether a solicitor could be found through the auspices of the Hospital. 31. It is highly material to the issue of Mrs Nagel's testamentary capacity that, at 14:00 hours on 6 June 2012, during Dr Chuang's rounds, the doctor had a discussion with Mrs Nagel personally, in which Mrs Nagel agreed that, in the event of cardiorespiratory arrest, she would not want to be resuscitated. The Hospital's notes record that Mrs Nagel was fully aware of Kylie's concern about the position taken by Mrs Nagel. The notes record that Mrs Nagel was "Lucid. Mentally competent". 32. In my view, if the Hospital's geriatrician formed the view at 14:00 hours on 6 June 2012, that Mrs Nagel was sufficiently lucid and mentally competent to decide for herself that she should not be resuscitated if she suffered from cardiorespiratory arrest, then it is likely that Mrs Nagel, at the same time, had sufficient mental capacity to be able to reason for herself as to how she should deal with the claims of her family on her estate. 33. The Hospital's notes show that Kylie asked the social worker for information concerning the availability of a solicitor at 15:00 hours, only one hour after the discussion between Mrs Nagel and her doctors concerning whether she should be revived. 34. The terms of the discussion that took place between Mrs Nagel and Dr Chuang, at 14:45 hours on 7 June 2012, concerning the appropriateness of appointing an enduring guardian, and the statement apparently made by Mrs Nagel that she considered Kylie to be her next of kin, and the appropriate person to have decision-making powers over her future, provides some support for the conclusion that Mrs Nagel was, at that time, thinking in terms of Kylie being the closest to her of all of her family members. A note of the meeting stated: "All three staff felt that at this moment Mrs Nagel was clear minded and lucid with the ability to make decisions for herself". 35. It is true that the Hospital's notes for 8:40 hours on 8 June 2012, record that Mrs Nagel was "febrile", and a note at 12:00 hours, during Dr Chuang's rounds, recorded that Mrs Nagel had suffered a temperature spike, although she was then afebrile and had reasonable orientation. There is therefore some evidence that Mrs Nagel may have suffered from some level of fever at times during the day on which she executed the 2012 will. There is, however, no record in the Hospital's notes that she was actually delirious. 36. I do not accept that this evidence displaces the effect of the observational evidence given by Kylie, Mr McKimm and Ms Sutcliffe, concerning the apparent lucidity and rationality of Mrs Nagel when she gave instructions as to the terms of and subsequently executed the 2012 will. 37. It is improbable that Mrs Nagel initiated arrangements for the making of a new will, on about 6 June 2012, when the evidence shows that she was lucid and mentally competent, without making her mind up as to what the terms of her will should be. It is improbable that Mrs Nagel left it until 8 June 2012, when there is some evidence that she suffered periodic increases in body temperature, to decide how she would dispose of her estate. It is much more likely that Mrs Nagel made her final judgment as to how she wished to dispose of her estate over a number of days, which led her to cause Kylie to initiate the process whereby a solicitor would prepare a new will for her. For much of that period the evidence shows that Mrs Nagel was lucid and mentally competent, and in my view it would be wrong to place excessive weight on evidence of limited fever suffered by Mrs Nagel on parts of the day that she actually gave the instructions for and executed her new will. 38. I have held above that that the court should generally accept Kylie's evidence that Mrs Nagel had occasionally asked over a number of years for Kylie to make arrangements for Mrs Nagel to make a new will. I have also accepted that Mrs Nagel informed Kylie from time to time that she proposed to leave her estate to Kylie. Those findings are in no way inconsistent with my findings that, on or about 6 June 2012, Mrs Nagel felt a greater urgency to implement her long-standing intention, and for that purpose, she made a final determination as to what she would do. 39. I find that Mrs Nagel had the necessary mental ability for her to have testamentary capacity at the time she made her 2012 will, notwithstanding the note in the Hospital's records made at 12:00 hours on 8 June 2012 that Mrs Nagel "at present is capable of making simple decisions but not complex decisions like financial plan & will amendments". 40. It is not known which medical professional made this note, and it has not been possible to explore the validity of the opinion expressed in the note. There is no evidence that whoever made the note had any knowledge of the nature of Mrs Nagel's assets, or the terms and complexity of the will that she made. There is no evidence that the maker of the note had an accurate understanding of the principles that govern testamentary capacity, or the somewhat limited nature of what is required for a testator to have that capacity. I am not satisfied that the terms of the 2012 will required the making of a complex decision that would be beyond the mental capacity of a person who, in the preceding couple of days, was regarded as having adequate capacity to decide whether she should be resuscitated, and to decide who she should appoint as an enduring guardian. 41. I am also satisfied that the evidence concerning the result of the MMSE, that was administered to Mrs Nagel at 15:00 hours on 8 June 2012, does not support a conclusion that Mrs Nagel lacked testamentary capacity on that date. The terms of the Hospital's notes, concerning the results of the test, satisfy me that it was not completed because Mrs Nagel "became quite drowsy", and that the result was not a true reflection of her level of cognition. As the occupational therapist who administered the test decided that the result would not be valid because of her drowsiness, and therefore that the test should be repeated, it would be wrong to place weight on the results of the test as if it was valid. 42. An order should be made for a grant of probate to Kylie in solemn form of the 2012 will, with appropriate consequential orders. 43. Kylie, as the plaintiff, should prepare short minutes of order to give effect to these reasons, and after consultation with the defendants, submit any agreed short minutes of order to my Associate, and in default of agreement, the proceedings should be relisted by arrangement with my Associate. Costs 1. At the end of his submissions, counsel for the defendants submitted that, even if the court found that the defendants' challenge to the validity of the 2012 will failed, the appropriate order for costs was that the costs of all parties on the ordinary basis should be paid out of Mrs Nagel's estate. In making this submission, counsel was invoking the principle in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709, as confirmed by the Court of Appeal in Shorten v Shorten (No 2) [2003] NSWCA 60 at [15]. The submission is based upon the proposition that it was reasonable in all of the circumstances for the defendants to put in issue Mrs Nagel's testamentary capacity, which was a subject that required investigation as a result of the circumstances in which Mrs Nagel made the 2012 will, without telling her family that she had done so, and her reasons for doing so. 2. Kylie's counsel responded by suggesting that the court should hear argument from the parties, because there may be questions of offers being made that may be relevant to the issue of costs. 3. In the circumstances, it will be appropriate for the court to give the parties the opportunity to make submissions as to the appropriate costs order for the court to make. 4. I should, however, make the following observations concerning what might be the appropriate timing for any submissions on the question of costs to be made. 5. During the course of the hearing, it became apparent when the affidavits of Debra and Jayne were filed in court that both of those witnesses were plaintiffs in proceedings in this court for the making of family provision orders against Kylie, as executor of Mrs Nagel's 2012 will. As the present proceedings raise an issue as to the validity of that will, the family provision proceedings have been stood over until after judgment in the present proceedings. 6. As the effect of this judgment will be that the 2012 will has been upheld, I assume that the family provision proceedings will be re-enlivened. 7. If that is the case, my inclination is to defer any application by the parties in these proceedings for an order that the costs of these proceedings be paid out of Mrs Nagel's estate, until after the family provision proceedings have been determined, on the basis that it may be appropriate for the costs orders in the two proceedings to be made at the same time, having regard in each case, to the extent that may be appropriate, to the costs order that will be made in the other case. 8. In particular, if I were to make in these proceedings an order that the costs of all parties be paid out of Mrs Nagel's estate on the ordinary basis, I would have no means of knowing what the quantum of those costs may be, or what unexpected effect the making of the costs order may have on the ability of the judge who hears the family provision proceedings to do justice in that case. Any order for costs that is made before the hearing of those proceedings, which may substantially reduce the amount of the estate, may have a bearing on the outcome of those proceedings which is unfair to the parties. 9. In making these observations, I do not mean to suggest that I have any view as to the extent to which it may be proper in one proceeding to take into account matters arising in another proceeding, for the purpose of determining the costs orders that are appropriate to be made. All I wish to do is to avoid the possibility that, by reason of the timing by which orders are made in one proceeding, there may be an unexpected and unfair consequence for the determination of the other proceeding. ********** 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: 07 March 2017