Supreme Court New South Wales Medium Neutral Citation: Gray v Taylor & Anor; The Estate of the late Stanislaw Zajac [2017] NSWSC 497 Hearing dates: 20, 21 and 22 February 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Equity Before: Slattery J Decision: Deceased had testamentary capacity at the time of the 2011 will. Probate of the 2011 will granted to the defendants/cross-claimants. Catchwords: WILLS - testamentary capacity - deceased makes wills in 2006 and 2011 – plaintiff seeks probate of 2006 will - defendants/cross-claimants seek probate of 2011 will – 2011 will made through a newly admitted solicitor – deceased had several mental and physical disabilities – deceased temporarily discharged from hospital to give instructions for 2011 will – solicitor not made aware of all the deceased's disabilities- whether deceased had testamentary capacity at time of the making of the 2011 will. Legislation Cited: Succession Act 2006 Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 34 CLR 558 Fitzgibbon v Waterways Authority [2003] NSWCA 294 In the Will of Field [1931] VLR 37 Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported) Pinniger v Stone [2012] NSWCA 73 Romano v Romano & Anor [2004] NSWCA 37 Romascu v Manolache [2011] NSWSC 1362 Singh v Singh [2008] NSWSC 715. Timbury v Coffee (1941) 66 CLR 277 Worth v Casohm (1952) 86 CLR 439 Texts Cited: LexisNexis Butterworths, Mason and Handler Wills Probate and Administration Service (NSW). LexisNexis Butterworths, Mason and Handler Succession Law and Practice, (at service [123]). Category: Principal judgment Parties: Plaintiff/Cross-Defendant: Kim Gray First Defendant/Cross-Claimant: Aneta Taylor Second Defendant/Cross-Claimant: Stanislaw Godyn Representation: Counsel: Plaintiff/Cross-Defendant: M. Rennie First and Second Defendant/Cross-Claimants: S. Chapple Solicitor: Plaintiff/Cross-Defendant: Kurt Topper, Heard McEwan Legal First and Second Defendant/Cross-Claimants: Peter Bahlmann, Hansons Lawyers File Number(s): 2014/217425 Publication restriction: No Judgment 1. Stanislaw Zajac was born in Brzesko County in southern Poland in September 1944. The German Army then occupied his village of Uszew some 51 km east of Kraków. Within months of his birth, Soviet forces overran the area, part of Lesser Poland. 2. The upheavals of war affected Mr Zajac and his family for years to come. He never received a proper schooling. In the early 1960s, seeking a better life, he followed his sister, Maria, to the Wollongong district in New South Wales. 3. Stanislaw Zajac and Maria Zajac left two other siblings behind in Poland, a brother, Kazmierz Zajac and a sister, Teresa Habura. They both stayed in Uszew, where Zajac is a local family name. 4. The deceased died on 17 October 2013 at the age of 69. In the last 7 years of his life he made two wills, one on 17 May 2006 ("the 2006 will") and the second on the 3 June 2011 ("the 2011 will"). No one disputes that the deceased had testamentary capacity when he made the 2006 will and that he knew and approved its contents. The issue in these proceedings is whether or not he lacked testamentary capacity when he made the 2011 will. 5. The deceased never married and had no children. The 2006 will benefits: his sister, Maria, nieces and a nephew. The 2011 will benefits: siblings, and two friends of the deceased, Stanislaw Godyn and Aneta Taylor, the defendant/cross-claimants. 6. The deceased had three nieces and nephew. The sister he followed to Australia, Maria Hulbert, had two children Wayne Hulbert and Kim Gray. The deceased's sister in Poland, Teresa Habura, has a daughter Agata. 7. Kim Gray, the primary beneficiary under the 2006 will, brings these proceedings as plaintiff to propound the 2006 will and seek administration of the deceased's estate, the named executor having renounced his right to probate of that will. 8. In response the defendants, the named executors of the 2011 will, cross-claim for probate of that will, contending that the deceased had testamentary capacity at the time of its making. 9. Objective circumstances raise doubts about the 2011 will. The defendants/cross-claimants Mr Godyn and Ms Taylor conceded as much. They accepted the onus under Timbury v Coffee (1941) 66 CLR 277 principles of establishing that the deceased had testamentary capacity at the time of the 2011 will. The deceased suffered physical disabilities in June 2011 when it was made. He had been signed out of a hospital to attend at the solicitor's office, where the will was made. The solicitor was not made aware he was in hospital or of any of his ailments when she took instructions for, and later witnessed, the 2011 will. 10. But this Court concludes that the deceased, Stanislaw Zajac possessed testamentary capacity at the time of the making of the 2011 will. The Court will admit the 2011 will to probate. 11. Mr M. Rennie of counsel instructed by Kurt Topper, of Heard McEwan Legal appeared for the plaintiff, Ms Kim Gray. Mr S. Chapple of counsel, instructed by Peter Bahlmann, Hansons Lawyers appeared for the cross-claimants, Mr Godyn and Ms Taylor to propound the 2011 will. 12. The deceased's siblings are mostly referred to by their first names in these reasons. This is done to reflect the way that the parties described themselves and without intending disrespect to any person. 13. These reasons now set out a full narrative of findings relevant to the contest between these parties. This narrative consists of the Court's findings of fact except to the extent that the narrative expressly indicates that it is recording one or other party's contentions or version of events. The narrative does not always include reference to versions of facts that the Court has rejected in making its findings. The narrative of findings is then followed by an analysis of the plaintiff's claims by reference to the applicable legal principles. Stanislaw Zajac, 1944 to 2013 Early years and migration to Australia 1. Following his birth on 3 September 1944, the deceased grew up in Poland. He migrated to Australia in about 1963. He followed in the footsteps of his younger sister, Maria Hulbert. She had migrated from Poland three years earlier. She initially lived in Wollongong. The deceased lived with his aunt in the neighbouring suburb Towradgi, until she passed away in the late 1990s. The deceased stayed in the Towradgi house thereafter. He lived alone for the remainder of his life. He and his sister lived in neighbouring suburbs for over 30 years. She called him as "Stasio". They got on well in the early years. In later life Maria and the deceased were at odds as to what was in his best interests. 2. The deceased would regularly send money home to his younger brother, Kazmierz, and his sister, Teresa, in Poland. One of the reasons he sent these funds was for his brother to build him a house south of Krakow, where he planned to live upon his return to Poland later in life. Maria Hulbert explained, and I accept, that once the house was built why he continued to send money back to Poland. She said: "The house was already built, so the last couple of years he would have been sending money to my brother helping towards his life and helping keep up with my mum and dad, because he was living at home and looking after my older parents." Deceased's Relationships with the Parties 1. The deceased became actively involved in his local Polish community in Australia. He first met Mr Godyn in the mid-1980s at an event hosted by the Illawarra Polish Club. Mr Godyn lived near the deceased in Corrimal. I accept Mr Godyn's evidence that thereafter, he would regularly attend Illawarra Polish Club events with the deceased and provide the deceased (who did not drive) with lifts to and from these events. Mr Godyn said, and I accept, that he often visited the deceased at his Towradgi home and they would share meals together. He would also assist the deceased with his grocery shopping and he would take him to medical appointments. Mr Godyn called the deceased "Stan". 2. I also accept Ms Gray's evidence that she and the deceased had been close when she was young. However, from about 1999 onwards, around the death of her great aunt who had lived in the Towradgi property, they began to drift apart. This was largely due to her own family commitments, including the birth of her two young children. Her candid account was that she and her immediate family would only then see the deceased on special occasions including birthdays, Easter and Christmas, and once or twice throughout the year. 3. Ms Taylor first met the deceased in 2000. She visited his house with her eldest son to sell fundraising chocolates. From 2006 to 2010, Ms Taylor owned and operated a delicatessen on the same street where the deceased lived. He visited daily to buy groceries and to talk. They struck up a friendship. They were also close neighbours. The Deceased's Estate 1. The deceased left an estate estimated at $854,000 comprising real property, his home in Towradgi, with a market value of approximately $700,000, together with cash on deposit at the Commonwealth Bank of Australia ("CBA") in an amount of approximately $85,000. The deceased also had superannuation funds of approximately $69,000. His estate has no liabilities other than those associated with this litigation. 2. Notwithstanding the present contest, the parties have by mutual agreement successfully managed the assets in the deceased's estate to advantage. The 2006 Will 1. The deceased executed the 2006 will on 17 March 2006. The 2006 will names his then solicitor, Mr Nigel Duncan as his executor. Mr Duncan had known and acted for the deceased for many years prior to 2006. Mr Duncan renounced probate. This will met the formal requirement for execution and attestation. The attesting witnesses were Christine Farr and Laura Hooper-Matthias. 2. The 2006 will names four beneficiaries: the deceased's sister Maria Hulbert, his nephew Wayne Hulbert, his niece in Poland, Agata Habura and his Australian niece, Maria's other child, Ms Kim Gray. The will gives to Agata all his superannuation and life insurance policies. Maria received a legacy of $25,000, Wayne received a legacy of $25,000. And Kim Gray receives the residue of the estate. The Deceased's Injury in Poland and Hospital Admissions 1. The deceased visited his family in Poland in May 2010. He was severely injured in an assault whilst in Poland. He sustained head injuries which required hospitalisation. 2. Maria had not been aware of the deceased's plans to visit Poland. She had not spoken to him for a number of months before his departure. She said of this visit by the deceased back to their homeland, "He didn't tell nobody that he was returning back for a holiday" and that it was a "surprise to the whole family". But it was not a surprise to Mr Godyn, to whom the deceased did give advance notice of the journey. Maria Hulbert's evidence is that other family members in Australia were unaware in advance of the deceased's proposed trip. But the fact that Mr Godyn was told is an indication that he stood within the inner circle of Mr Zajac's confidants. 3. I accept Mr Godyn's account that he visited the deceased in Poland in September 2010, before the deceased returned home in October. By arrangement, Mr Godyn met the deceased at the homes of Kazmierz and Teresa in Poland about two weeks before the deceased returned to Australia. 4. Between October and December 2010 Mr Zajac was not faring well back at home. In December 2010 Ms Taylor called an ambulance for the deceased when he appeared to be in need of medical attention. She saw him stationary on a park bench opposite her delicatessen for a period of some seven hours. He appeared to her to be suffering physical pain and had difficulty standing up. The hospital notes suggest that this incident may have occurred in February 2011 but the actual date is immaterial. 5. Ms Taylor intervened and he was taken to hospital. Ms Taylor and Mr Godyn met up after this incident. Although I accept Ms Taylor's evidence that they had actually first met while she was visiting the deceased at his home in 2008. In any event, it is clear Mr Godyn and Ms Taylor formed a ready friendship due to their mutual connection with and interest in the welfare of the deceased. 6. The December 2010 incident marked the beginning of the deceased's decline. He was admitted to hospital on numerous occasions from then and in the first third of 2011. Ms Gray provided a helpful chronology outlining the deceased's various hospital admissions. They occurred regularly until late April 2011, when he was admitted permanently to Coledale Hospital. Her evidence is that the deceased's cognitive function, overall health and his ability to take care of himself on a daily basis deteriorated after the assault in Poland and his return to Australia. I accept her evidence as to this. 7. There are disagreements between Mr Godyn, Ms Taylor on one side and Ms Gray on the other side about how poorly kept and insanitary Mr Zajac's house and living conditions were just before he went into hospital. Ms Gray says they were worse than Mr Godyn and Ms Taylor say they were. The differences do not have to be decided, as the deceased was in hospital by the time the 2011 will was made. But the differences in this evidence may well be explained by their different levels of access to the inside of the house; Ms Gray's being greater. 8. Mr Godyn said, and I accept, he would visit the deceased, while he was in hospital and he would take him home on weekends. Mr Godyn agreed the deceased had difficulty looking after himself physically and especially when showering. But he also says that he never noticed the deceased in a state of confusion at Coledale Hospital. I do not accept this is accurate. The medical notes show the deceased suffered periods of disorientation. Mr Godyn seemed patient with the deceased and perhaps was more inclined to treat the deceased's occasional disorientation in hospital as normal. 9. Both Ms Taylor and Mr Godyn say, and I accept, they separately visited the deceased each time he was admitted to hospital. Ms Taylor also arranged for the cleaning and general maintenance of the deceased's property during his admissions. She would cook for him regularly during the week and drive him on his errands. Either Ms Taylor or Mr Godyn would arrange to drive the deceased to and from the hospital when he needed to leave and had the strength to do so. 10. On 27 April 2011, the deceased was admitted to Wollongong Hospital and then transferred to Coledale Hospital. On 2 May 2011, he was recorded as an inpatient at Coledale Hospital awaiting a permanent aged care placement. 11. Mr Godyn and Ms Taylor both continued their separate regular visits to see the deceased in Coledale Hospital several times each week. Mr Godyn said he never met Ms Gray and never saw her visit the deceased in hospital. It was Ms Gray's recollection that she visited the deceased twice while he was in Coledale Hospital and I accept that she did. Maria Hulbert said she visited the deceased on 12 occasions during his various admissions to Coledale Hospital. She described the deceased saying strange things at times to her when in hospital and I accept that this may have happened on occasions in her presence. But these were particular episodes early after his admission and over time, after his admission, medical care seemed to stabilise the deceased. Further analysis of the deceased's medical progress appears later in these reasons under the heading "The Medical Evidence". The 24 May 2011 Meeting 1. After discussions with Mr Godyn earlier in May, on 24 May 2011, the deceased attended the office of John Dawson and Associates Solicitors (Dawson Solicitors) with Mr Godyn to meet with a solicitor, Ms Lisa Heffernan. Ms Heffernan thought that the purpose of this meeting, as was recorded in the Dawson Solicitors' appointment book, was to provide her with instructions from the deceased regarding a Power of Attorney and the appointment of an Enduring Guardian. But in the course of the meeting, the deceased also gave instructions for the 2011 will. 2. It was Ms Heffernan's evidence that at the time of this meeting she had been admitted as a solicitor for about nine months. At that time she was generally acting under supervision. But no supervising lawyer was present in the meeting itself. 3. Mr Zajac was not a prior client of Ms Heffernan. As she aptly put it in answer to a question whether Mr Zajac had a prior client relationship with her, "No but neither were most of my clients at that point". She had no previous connection with Mr Godyn and had never met him before. 4. Ms Heffernan said, and I accept, that the deceased first raised the issue of a will with her at this meeting, and that she did not witness any prompting on this issue from Mr Godyn either in English or in Polish. This is inconsistent with Mr Godyn's recollection. He says that Ms Heffernan raised the issue of a will with the deceased. But on this matter I prefer Ms Heffernan's account over Mr Godyn's. Although the deceased opened up this topic, this is not a case in my view where the deceased had flagged to anyone, including Mr Godyn, his intent to make a new will, until he actually came out with the idea in the course of the meeting. Mr Godyn was not aware beforehand that Mr Zajac was going to raise this subject. 5. Ms Heffernan said that she initially asked Mr Godyn to wait outside in the Dawson Solicitors waiting room, whilst the meeting took place. But when questioned on this issue, she said, and I accept, the deceased requested Mr Godyn's presence in the meeting. This is consistent with Mr Godyn's evidence. And the making of this request is inherently probable. The deceased relied on Mr Godyn for many things in his life; being present at this important meeting was another one of them. 6. Ms Heffernan could not recall whether she raised the issue of Mr Godyn's presence again during the meeting, once the discussion regarding the 2011 will commenced and it became clear that Mr Zajac was proposing that Mr Godyn would benefit under the will. 7. Ms Heffernan explained to the deceased the nature and purpose of the Power of Attorney and Enduring Guardian documents. And after these explanations were proffered the deceased confirmed his understanding and his preliminary instructions that Mr Godyn and Ms Tayor to be appointed jointly as his Attorneys and Guardians. 8. Her account of the meeting, which is wholly accepted, is an important integer in the Court's reasoning and is therefore set out in the following paragraphs in full: Ms Heffernan: "The Power of Attorney document appoints someone to act as an Attorney for you to manage your financial affairs if you are unable to manage this for yourself in future. The person you appoint is usually someone you would trust to assist you if you need that assistance in future. The attorney will be able to manage your financial affairs including dealing with property that you own, or withdrawing money from your bank accounts to assist you " Mr Zajac: 'Yes " Ms Heffernan: "The appointment of Enduring Guardian document appoints someone to act as your guardian for you. That person will be able to make decisions about your health care and lifestyle, including deciding where you should live, what health care you receive, what kinds of personal services you receive, and they will be able to provide consent to medical and dental treatment if you are unable to decide these things for yourself. Mr Zajac: "Ok" 1. After Ms Heffernan explained the function of an Attorney and a Guardian, she obtained preliminary instructions from Mr Zajac for the preparation of these two documents. Ms Heffernan's detailed affidavit account is consistent with the form of her handwritten notes of the meeting. The following conversation took place: "Ms Heffernan: "You will need to think about who you want to be your Attorney and Guardian. Who would you like to appoint?" Mr Zajac: "My friends Stan and Anna. They take care of me". 1. Ms Heffernan says, and I accept, that when Mr Zajac referred to "Stan", he looked at Mr Godyn, who was sitting beside him. Ms Heffernan then asked Mr Zajac for contact details for Mr Godyn and Ms Taylor, which are recorded in her hand written notes. The conference went on: Ms Heffernan: "Do you have any children? Mr Zajac: "No" Ms Heffernan: "Do you have any family in Australia or overseas?" Mr Zajac: "I have some family, but they do not live nearby. One sister lives overseas in Poland. I am part of a Polish community here and my friends Anna and Stan look out for me. Anna is my neighbour and Stan takes care of me. I would like Anna and Stan to be my Guardian and Attorney". Ms Heffernan: "What about your family who live here?" Mr Zajac: "I do not want my sister Maria who lives in Corrimal to be part of this. She make a lot of trouble for me. I have had a lot of difficulty with her and i do not trust her". Mr Godyn: "Maria has made a lot of trouble for him (Mr Zajac) and a lot of Headache. She even had the police involved and it is too much trouble for him now". 1. Ms Heffernan says, and I accept, that Mr Zajac and Mr Godyn proceeded to explain to her some of the history and background between Mr Zajac and his sister Maria. Ms Heffernan could not recall the full explanation of these events. But her general recollection of what was given to her was that "they had [had] a chequered history". The conversation moved onto Mr Zajac's other siblings: Me: "Aside from Maria, you have more brothers and sisters in Poland, is that right?" Mr Zajac: "Yes I have a brother and a sister in Poland, Kazmierz and Teresa". 1. Ms Heffernan then asked Mr Zajac to spell his siblings' names for her notation. Mr Zajac hand wrote their names on Ms Heffernan's notes. The spelling of their names in her notes is correct. Ms Heffernan: "Do you understand that a Guardian can decide where you live, if you need hospital care or if you are to go to a nursing home and the Guardian can decide where you should go if you need that help and you cannot make that decision for yourself?" 1. This question from Ms Heffernan elicited an important response from the deceased about his preferences about whether or not he would be going into a nursing home, an issue that was an important driver of his thinking at the time. The conversation went on: Mr Zajac: "Yes, but I do not want to go to a nursing home I want to stay at home". Ms Heffernan: "Even if you want to stay at home and not go to a nursing home, a Guardian can make that decision for you and can decide if you need to go to a nursing home if you cannot decide for yourself at the time". Mr Godyn: "He does not want to go to a nursing home he wants to stay in his house". Ms Heffernan: "Yes I understand, but if you make Anna and Stan your Guardian then they might be able to take you to a nursing home or hospital if you cannot make that decision for yourself and you need the extra care in the future". Mr Zajac: "That is okay, I know that Stan and Anna will look after me". Ms Heffernan: "Okay, we will prepare a document to make Anna and Stan your Guardians. We will also prepare the documents to make Anna and Stan your Attorneys. This means they will be able to look after your financial and legal affairs like we discussed. Is this what you want?". 1. It was at this point in the conversation that Mr Zajac inserted the idea of giving instructions for a new will. Mr Zajac: "Yes, I trust Stan and Anna and they have always taken care of me. I also want a Will prepared". Ms Heffernan: "Ok. You will need to think about who you would want to appoint as the executor on your Will. The executor of the Will has the responsibility of making sure your requests under your Will are upheld. They call in the assets and ensure they are distributed as per your wishes in your Will. Who do you want to be the Executor of your Will?". Mr Zajac: "Anna and Stan will look after me, they should be the Executors". Ms Heffernan: "Who do you want to benefit from your estate and how do you want to divide the balance in your estate?". Mr Zajac: "I will give it all to Stan, Anna, Teresa and Kazmierz who are in Poland. They can share. I do not want Maria to be included in my Will. There is too much trouble and she cause me too many problems". Ms Heffernan: "Okay, that means that you will be giving 25% of your estate to each of Stanisiaw Godyn, Anna Taylor, Kazmierz Zajac and Teresa Habura". Mr Zajac: "Yes". Ms Heffernan: "I understand that you do not want to leave your sister Maria anything under your Will. There is legislation in place called the Succession Act that stipulates that certain persons who are deemed eligible persons may make a family provision claim against an estate, if adequate provision is not provided for that person under the Will. If Maria was deemed an eligible person under the legislation, she may be able to make a claim within 12 months of your death for provision, despite not being included in your Will". Mr Zajac: 'Yes, but I do not want Maria in my Will. She is too much trouble". 1. Ms Heffernan's notes are a useful resource giving her support to her account of the course of the meeting. She noted that Maria "made a lot of trouble for him [the deceased]". This supports her recollection that the deceased made it expressly clear to her that he had problems with his sister Maria. Her notes under the heading "Bene" (her shorthand for "beneficiaries") record the symbols "25%" next to each of the four proposed beneficiaries that the deceased identified to Ms Heffernan for the 2011 will. This entry supports Ms Heffernan's and Mr Godyn's recollection that the deceased said he wished at the time for his estate to be split into four equal shares between Mr Godyn, Ms Taylor, Mr Kazmierz Zajac and Ms Teresa Habura respectively. The deceased's instructions for Mr Godyn and Ms Taylor to be joint executors of the 2011 will, are also clearly reflected in Ms Heffernan's notes, "Executor-Anna Taylor + Stanislaw Godyn jointly". 2. Ms Heffernan's notes also record the moment when she says the deceased said he wished to make a will. Her handwriting records, "-want to do a will". Overall the notes are spare but sufficient for relatively straight-forward testamentary instructions, such as those she was taking at this meeting. 3. But the notes do not record, nor does Ms Heffernan recall, raising any specific questions about the size of the deceased's estate. This was a deficiency but for the reasons below, not one that in my view ultimately casts doubt on the inference that the Court draws that the deceased did know what his property was. 4. Unbeknown to Ms Heffernan, Mr Godyn had signed the deceased out of Coledale Hospital to drive him to the Dawson Solicitors' office for this meeting. Mr Godyn's conduct in this respect is discussed below. Ms Heffernan was also unaware that Mr Zajac had a head injury in 2010 and had been hospitalised previously, or that he had any health issues including incontinence or dizziness, headaches or confusion. But these matters were not deliberately concealed from Ms Heffernan. In my view, it just never occurred to Mr Godyn to give Ms Heffernan this kind of additional background information, of which he was well aware. I assess Mr Godyn as the kind of person who did not have much insight into what additional information might be relevant to the task of a professional person such as Ms Heffernan. 5. Ms Heffernan also did not know that in conversations with his niece, Ms Gray, he (Mr Zajac) had referred to her as still being youthful when indeed she was an adult. Nor did she know that as early as 19 May the hospital had explored the possibility of an application to the Guardianship Tribunal of New South Wales ("the Tribunal"), which was ultimately made on 26 or 27 May. Mr Godyn did not know these things either. 6. Ms Heffernan did not ask about what she did not know. I infer it did not occur to her to ask about any of the deceased's health concerns during the meeting, because he presented to her as alert and mentally competent. Her limited practical experience of nine months as a lawyer meant that she was less focussed than a more experienced lawyer would be to any signs of mental incompetence. But as these reasons later explain, she is the kind of professional who would have been likely to have observed and acted on any adverse signs. Ms Heffernan conceded, though, that had she been aware of these additional factors, and had they amounted to "red flags" for her she may have changed the manner in which she took instructions from the deceased, specifically by seeking a medical opinion as to his capacity. This would have been in accordance with good practice. But she saw no "red flags" that day and she did not seek a medical opinion as to capacity. I infer this was because the deceased presented as mentally competent throughout the meeting. The Hospital Notes and the Patient Leave Form - 24 May 2011 1. The Hospital Notes. The Coledale Hospital nursing notes and other hospital records are important sources of information about two relevant matters: Mr Zajac's general competence on 24 May and the circumstances in which Mr Godyn signed him out of hospital. 2. The hospital nursing notes on 24 May for Mr Zajac commence at 3.55am, record him being signed out of hospital, and resume when he apparently returned to hospital. The last entry for the day is at 5.45pm. The notes at 3.55am record routine matters of bed changing, some incontinence of the deceased and the application of dressings and then later that he was up and shaved and had nursing assistance and that he tolerated his diet and fluids. No disturbed or aggressive behaviour is reported. Nor is any disorientation. 3. Then the notes record that the patient, "went out on day leave at approximately 1000 hours – remains on day leave". This is I infer the time that Mr Godyn picked him up. 4. Mr Zajac was returned to the nursing home. And an entry at 5.40pm indicated that he had "spent afternoon in [dining room] and tolerated diet and fluid then went back to bed with no new issues". Once again there was no record of disturbed, aggressive or disorientated behaviour on the deceased's part. The notes are useful in that either side of Ms Heffernan's meeting with Mr Zajac they confirm his generally stable presentation. These notes give the Court no reason to doubt Ms Heffernan's evidence about the events of 24 May or her judgment that he was capable of giving her instructions for his will. 5. The Patient Leave Form. Mr Zajac was signed out of hospital between 10am and 2pm on 24 May. Mr Godyn signed a standard Patient Leave form so that Mr Zajac could leave the hospital. There is no evidence before the Court as to what policies were in place in New South Wales hospitals about the execution of such Patient Leave forms in May 2011. Nor did the Court hear from any of the nursing staff when it was signed. The Court was therefore left to infer from the text of the document itself what it meant and why it was executed. Both the text of the form and the cross-examination of Mr Godyn about the form are relevant. 6. The Patient Leave form is of two pages. The first page is in two parts. Section 1 is a form apt to be completed by a patient over the age of 16 years, who was discharging himself or herself from a New South Wales hospital. Section 2 is applicable to a situation where the following circumstances are said to apply: "SECTION TWO: to be completed by PARENT/GUARDIAN/CARER (if PATIENT is less than 16 years old or lacks capacity to complete)" 1. The back of the form in this case is not filled out but is designed to cover matters such as the kind of leave from the hospital that is being undertaken (for example, social leave or respite leave) and the possibility of there being treatment plans or particular risks associated with the period of leave. One can understand in a short period of leave of no more than four hours why this part of the form was not filled out on 24 May. 2. The form records, without differentiating whether Mr Godyn, who was taking the patient out, was a "parent/guardian/carer" of Mr Zajac. He only qualified as a carer that day. Leave was being requested that day from 10am until 2pm. The Patient Leave form is then crafted in a way which shows that a central purpose of the form is to protect the hospital against liability in case an accident happens to the patient whilst on leave. The text contains a promise to "absolve the hospital of any liability" to "take all precautions…and ensure the continuation of any prescribed medical treatment", and "any risks associated with the leave…have been explained to me". 3. Cross-examining counsel, Mr Rennie, put to Mr Godyn, and Mr Godyn accepted, that he "signed the patient leave form on 24 May on the basis that the patient lacked capacity to complete that document". From time to time in the cross-examination this question was shortened to "less than 16 years old or lacks capacity", to which Mr Godyn also agreed. 4. Not too much can be made of this document. I infer that it shows the nursing staff within the hospital thought that Mr Godyn lacked the capacity to complete such a document. Given his poor education and low literacy levels this is not at all a surprising judgment. But his lacking "capacity to complete [the form]" is just that and is not a judgment on his overall mental capacity or his testamentary capacity. The same can be said for the later Patient Leave forms. 5. It appears that a social worker at Coledale Hospital, Ms Elaine Stubbs, became alerted that there was conflict between friends of the deceased and his family about issues of guardianship. Her social worker's intervention appeared reasonably to be that the matter should be brought to the attention of the Tribunal. She began to take steps in that direction. Initiating the Tribunal Application – 26 May 2011 1. Only two days after the deceased's meeting with Ms Heffernan, on 26 May 2011, Ms Stubbs sent a letter to the Tribunal to apply for guardianship and financial management orders in relation to the deceased. 2. Ms Heffernan was unaware on 24 May that the Tribunal application was about to be initiated. She was not told of it at her next meeting with the deceased. She remained unaware that it had been made in the period between her first two meetings with the deceased. 3. The Tribunal application was not concealed from Ms Heffernan. Neither Mr Godyn nor Ms Taylor were aware that Ms Stubbs was initiating it. The 3 June 2011 Conference and the 2011 Will 1. After taking instructions on 24 May, Ms Heffernan prepared the text of the 2011 will, the enduring Power of Attorney, and the Appointment of Enduring Guardian. She met the deceased again with Mr Godyn in her office on 3 June 2011. The deceased executed each of these three documents at this second meeting. Before this meeting commenced, Ms Heffernan once again invited Mr Godyn to wait outside in the waiting room. But I accept her evidence that the deceased protested and requested Mr Godyn's presence, so he joined them. 2. The meeting proceeded throughout with the deceased and Mr Godyn present. Ms Heffernan took the deceased through the documents she had prepared following his 24 May instructions. He confirmed his understanding and his readiness to sign. The formal requirements for execution of the 2011 will were met. The attesting witnesses for the 2011 will were Ms Heffernan, herself, and her then secretary at Dawson Solicitors, Ms Sue Duncan. 3. The deceased also executed the Appointment of Enduring Guardian and Power of Attorney, which appointed Mr Godyn and Ms Taylor jointly as his enduring attorneys and guardians respectively. The appointments were accepted in writing by Mr Godyn on 3 June 2011 and Ms Taylor on 6 June 2011. Mr Godyn's evidence of the 3 June meeting deals only with the deceased's instructions regarding the executors and beneficiaries under the 2011 will, and its execution. Ms Heffernan's evidence is more comprehensive than Mr Godyn's regarding the discussions at this meeting. Notwithstanding this, their evidence is not inconsistent. 4. Again I accept Ms Heffernan's account of this meeting which is set out here in full. She says that after she invited both men in to her office she had the following conversation with Mr Zajac: Ms Heffernan: "'I have drafted a Power of Attorney, Enduring Guardian and Will which I would like to go through with you We discussed the documents last time I saw you and I explained that the Power of Attorney document appoints someone to act as an Attorney for you to manage your financial affairs if you are unable to manage this for yourself in future". Mr Zajac: "Yes". Ms Heffernan: "The Enduring Guardian document appoints someone to act as your guardian to manage and make decisions about your health care and lifestyle, if you are unable to manage this for yourself in future. These documents only operate whilst you are alive. Your Will sets out what you wish to happen with your assets and things when you die, and who you wish to benefit from your estate ". Mr Zajac: 'Yes'. 1. Ms Heffernan says, and I accept, that she then reviewed with Mr Zajac the will, the Power of Attorney and the appointment of Enduring Guardian in that order, to confirm the instructions he had provided to her on 24 May. Although on this occasion Ms Heffernan did not ask general questions of Mr Zajac about his understanding of current affairs, to ascertain his overall alertness, he did appear to her, as the conversation below illustrates, to follow what she was explaining to him. In reviewing the contents of the 2011 will, Mr Zajac confirmed the spelling of his name and the other names in the Will which were in bold lettering. 2. The conversation continued: Ms Heffernan: "You have requested that Stan and Anna Taylor are your Executors. This means they will ensure that your requests under your Will are upheld at the time of death. They have also been appointed as the beneficiaries under your Will together with your brother and sister in Poland Teresa Habura and Kazmierz Zajac. Each of them will receive an equal part of the balance of your estate at the time of death. Is this how you want your Will or do you want to make some changes?" Mr Zajac: "No, I do not want to make any changes. That is correct". Ms Heffernan: 'Remember what I said when we met last time, your sister Maria may still be able to make a claim against your estate twelve months after you die, even if she is not in your Will". Mr Zajac: 'Yes. Maria make too much trouble for me. I do not want her in my Will'. 1. The 2011 will appointed Mr Godyn and Ms Taylor as the deceased's executors and trustees. The 2011 will gave no legacies. It divided the whole estate into four equal shares among Mr Godyn, Ms Taylor, the deceased's brother Kazmierz Zajac and his sister Teresa Habura, in the following terms: "I APPOINT STANISLAW GODYN and ANNA TAYLOR Executors and Trustees [hereinafter called "my trustee"] of this my Will. I GIVE all of my property wheresoever situate unto my said Trustee UPON TRUST to sell call in and convert into money such part or parts as shall not consist of money with power for such period as my Trustee shall consider expedient to postpone the sale calling in or conversion of my estate and out of any moneys of which I may die possessed to pay my just debts funeral and testamentary expenses and all probate and other duties payable in respect of my estate or in consequence of my death and to invest any surplus and to stand possessed of the said trust funds or the securities ("the net balance") upon which the same shall be invested UPON TRUST for my friend STANISLAW GODYN, my friend ANNA TAYLOR, my brother KAZMIERZ ZAJAC and my sister TERESA HABURA or to the survivor or survivors absolutely or in equal shares respectively. PRIOR to making this Will I was advised by my solicitor of the provisions relating to Family Provision, under Chapter 3 of the Succession Act 2006." 1. The executed 2011 will and the other documents were left with Dawson Solicitors. The Hospital Notes - 3 June 2011 1. When evidence was being adduced at the hearing, the original Coledale Hospital clinical notes (part of Exhibit 1) for 3 June 2011 were deficient. It was observed in final submissions that the only entry in the hospital notes for 3 June 2011 was at 4:30am. So the parties were given an opportunity to follow-up on a subpoena to the hospital to try and locate the entries for the rest of the day and for subsequent days to fill the gap in the Coledale Hospital record right up until 9 June 2011. 2. After that post-hearing follow-up, Coledale Hospital produced another four pages of notes, which were of significance to the proceedings. They were separately tendered and marked Exhibit 1A after the hearing had concluded. The parties were given an opportunity to file supplementary written submissions in relation to Exhibit 1A. The Court has taken these supplementary written submissions into account in the present analysis. 3. Firstly, two nursing entries on 3 June 2011 show that the deceased was taken out of the hospital at an unidentified time but returned about 14:00 hours by "a (male) friend". This was Mr Godyn. Registered nurses took responsibility for recording the patients' departure and arrival back at the hospital. The entries they made were as follows. "Nursing: Taken out on gate leave for a couple of hours w (with) a male friend. Form attended. [signature] RN Shilling Pt [patient] returned from g/L [gate leave] w [with] friend. Showered by night staff. Tolerated diet & fluids. [signature] (SNELSON)" 1. The entries made under the professionally trained eyes of the nurses are also significant for what they do not say. The entries do not record any disorientation, unusual physical conditions, or unusual behaviour by the patient. They do not record anything adverse about the occasion or the circumstances in which the friend, who was accompanying the patient was taking him out on leave. 2. Sometime later the same afternoon (which time may be inferred from its position in the notes to be after 1400 hours), the social worker, Ms Stubbs made her own entry into the hospital notes. Her entry (with abbreviations translated in parentheses) is as follows: "[Social Work] Mtg (meeting) w (with) Pts (patient's) friend. Stan to explore GT (Guardianship Tribunal) issues, as person noted on appln (application) as informal support for Pt (patient). Pt (patient) provided permission for Swk (social work) to sp (speak) to friend. Friend reports Pts (patient's) mistrust of family intentions re (regarding) Assets/Income. Friend may have doc's (documents) that would be of interest to GT (Guardianship Tribunal) processes . Swks (social workers) requested copy of doc's (documents) which friend will provide a next visit to CDH (Coledale Hospital). Plan pass on any relevant info or reassess Pt (patient) needs re (regarding) GT (Guardianship Tribunal). [signature] (E Stubbs)" 1. Mr Godyn was not further cross-examined upon the discovery of these new entries. The social worker's entry contains no direct report from Mr Zajac. But one report of Mr Zajac's state of mind comes via Mr Godyn to the effect "friend reports [patient's] mistrust of family intentions re-assets/income". These are not Mr Zajac's words. But they coincide with what both Mr Godyn and Ms Heffernan said to the Court that the deceased had said to them. And the Court accepts that this is what the deceased had told them. 2. The social work notes for 3 June show the patient, Mr Zajac, conversing with Ms Stubbs, the social worker, to the level of his giving her permission to speak to Mr Godyn. The social worker, Ms Stubbs, makes no written comment about anything unusual in the tenor of her communications with the deceased this day. Ms Stubbs was not called by either party to give evidence. The entries do show that the deceased was prepared to entrust to Mr Godyn communications about his welfare to this social worker. 3. The final entries through to the end of 3 June do not remark upon any other unusual feature in the patient's behaviour or routine. A nursing entry at about 20:00 hours reports that the deceased spent "most of evening in room" until dinner, when "he came out to TV room and remained there until going to bed". He seems to have eaten and drunk acceptably, as the nursing entry was "fluid and diet well-tolerated". 4. None of these notes record that the deceased exhibited any marked disorientation either before or after he was taken to see Ms Heffernan. I infer that nothing remarkable was observed. As with the 24 May nursing notes, they give no reason to doubt Ms Heffernan's account that the deceased presented to her that day without raising any concern on her part as to his testamentary capacity. 5. But there is also no mention of the will. The deceased is not recorded as mentioning to Ms Stubbs that he had executed a will that very day when he was out with Mr Godyn. Mr Godyn does not raise it with the social worker. But not too much significance should be placed on this. The meeting that day also involves the appointment of a guardian and the execution of the power of attorney, neither of which is expressly mentioned in the notes of conversation with Ms Stubbs. The 6 June 2011 Meeting 1. Ms Taylor was unaware on 3 June 2011 of the making of the 2011 will and her status as a beneficiary under it. I accept her evidence that the deceased asked her on 4 June 2011 to be his attorney and that she responded to him on 6 June, confirming she would accept this responsibility. At the deceased's suggestion, Ms Taylor then signed the deceased out of Coledale Hospital temporarily. She drove him to Dawson Solicitors to sign the acceptance document that day. 2. There is no supporting documentation tendered by the parties which confirms Ms Taylor in fact signed the deceased out of hospital that day. Nevertheless, the Court finds that this probably did occur. 3. Ms Taylor's and Ms Heffernan's accounts of what occurred on 6 June are different. Ms Heffernan could not recall any meeting with Ms Taylor on 6 June at which the deceased was present. But Ms Taylor gives detail of her conversation on 6 June with Ms Heffernan, as occurring in the presence of the deceased. Ms Taylor recalls Ms Heffernan explaining to her the Power of Attorney documentation and asking the deceased what day it was and who the current Prime Minister was, in response to Ms Taylor's queries about whether her appointment was what the deceased really wanted. Ms Taylor recalls Ms Heffernan being satisfied that the deceased understood the appointments. 4. Ms Taylor signed the Acceptance of Appointment as Enduring Guardian that day, and it was witnessed by Ms Heffernan. I infer that, notwithstanding Ms Heffernan's lack of recollection of a meeting, Ms Taylor did attend that day, as she says she did. But was the deceased present? He did not have to be there as he had already signed the Power of Attorney and Enduring Guardian documents on 3 June 2011. 5. But Ms Taylor is more likely to remember this occasion and this conversation. It was her only meeting with the deceased and Ms Heffernan. For Ms Heffernan it was just one of three closely spaced meetings about the deceased's affairs. I generally accept Ms Taylor's account of this meeting, which was as follows. 6. At that time Ms Taylor was unaware that Mr Zajac had made his will on 3 June 2011 and that she had been included as a beneficiary in that will. She was unaware of the deceased's assets. 7. On 6 June 2011 Ms Taylor said, and I accept, she visited Mr Zajac at the Bulli Rehabilitation Unit. She had been informed by the deceased on 4 June that the deceased wanted her to be his attorney. She indicated to the deceased that she wanted to speak to her husband, Norman first. Having spoken to her husband she decided she would accept Mr Zajac's invitation. She had the following conversation regarding his power of attorney: Ms Taylor: "I spoke to Norm last night and we agreed that it would be a good idea for me to accept to be your attorney, so long as that is really what you want. Are you sure you do not want your family to be attorney even if you haven't spoken to them in a while?" Mr Zajac: "No Anna. I do not want my family involved. I'm worried, someone needs to pay my bills and look after me when I can't anymore. You and Stan have always looked after me. If you and Stan cannot help me no one can. My family just want the money. They will not look after me." Ms Taylor: "Okay. If that is what you really want, I will help you." Mr Zajac: "If you can take me to my solicitor you can sign your attorney today." 1. On that same day she also spoke to Elaine Stubbs, Mr Zajac's social worker. At that time they had the following conversation: Ms Taylor: "Elaine, Stan has asked me to be his attorney. What do you think? He doesn't want his family to be attorney." Ms Stubbs: "If that is what he wants, that is a good idea Anna." 1. She then arranged to drive Mr Zajac to the Thirroul Commonwealth bank to withdraw some money to pay his bills. She sat in the waiting area while Mr Zajac arranged his banking. 2. I accept that they then travelled to Dawson Solicitors so she could sign the Power of Attorney. When Ms Taylor and Ms Heffernan arrived she was introduced to Ms Heffernan. Ms Heffernan explained the Power of Attorney documentation to Ms Taylor. The conversation went on: Ms Taylor: "I want to make sure I'm making the right decision. I would like to help Mr Zajac but I have never been an Attorney before. I told Stan (Mr Zajac) I would be his Attorney as long as that is what he really wants." Ms Heffernan: "Yes, I have explained this to him and he has agreed to make you and Stan (Mr Godyn) attorney." 1. Ms Heffernan then asked Mr Zajac questions as follows:- Ms Heffernan: "Stan do you know what day it is today?" Mr Zajac: "Yes, it is Monday." Ms Heffernan: "Who is the Prime Minister?" Mr Zajac: "Julia Gillard." Ms Heffernan: "I am satisfied that you can understand the appointments you are making Stan." 1. Ms Heffernan then arranged for Ms Taylor to sign the Power of Attorney and explained the role. 2. Ms Heffernan asked more questions of the deceased about his capacity on 6 June than she did on either 24 May or 3 June. This was partly at the prompting of Ms Taylor, who had some concern to ensure that Mr Zajac had capacity and that Ms Heffernan was aware that there might be doubts about his capacity. The difference between the 3 and 6 June conversations shows that Ms Taylor had a slightly more insightful understanding than Mr Godyn of the potential depth of Mr Zajac's disability and more empathy with the position of the professional person, Ms Heffernan, in trying to get to grips with her task. Ms Taylor said in her testimony, and I accept, that she thought she should ask the question of Ms Heffernan "does he have the capacity to do this?" Ms Taylor said, and I accept, as genuine "I thought he did, but I wanted to see what a solicitor thought". Ms Taylor declared, and I accept, that her prompting did not indicate that she thought Mr Zajac did not have testamentary capacity. 3. But the exchange is useful for another reason. It shows despite her relative inexperience Ms Heffernan was well aware of the right things to do professionally and the right questions to ask, when a person might be suspected of lacking testamentary capacity. Ms Heffernan struck the Court as someone, who though at a point very early in her professional career, was very attentive to her proper professional duties and responsive to the receipt of any new information about her client. The Nursing Notes – 8 June 2011 1. The nursing notes for 8 June 2011 confirm that Mr Godyn discussed with the social worker that day the execution of the appointment of Enduring Guardian and the Enduring Power of Attorney. These entries confirm that what Mr Zajac had said to Ms Heffernan about Mr Godyn and Ms Taylor was not a one-off. And it provides some confirmation for Mr Godyn's evidence that the deceased had long been expressing to him the preference that Ms Taylor and he look after the deceased's personal and financial affairs. The full note for the social worker note for 8 June 2011 is as follows: "[Social Work] Plc [place] for Pts [patient's] friend re [regarding] doc's [documents] left by them for SWK [social worker's] attn. [attention]. Doc'n [documentation] is executed EPOA + EPG [Enduring Power of Attorney and Enduring Power of Guardianship]. SWK [social worker] to discuss doc'n [documentation] w [with] medical staff re [regarding] impact of this doc'n [documentation]. D/W [dealt with] Dr Murray re [regarding] issue. It is noted that doc'n [documentation] confirms Pts [patient's] constant verbal wishes re [regarding] person he would elect to assist him. Plan – d/w [deal with] GT [Guardianship Tribunal] + family + pt [patient] re [regarding] appropriate actions for D/ch planning. [signature] [E Stubbs – SWK [social work] place GT (Guardianship Tribunal)" 1. Within the note the words "it is noted that [documentation] confirms [patient's] constant verbal wishes re persons he would elect to assist him." The Court exercises caution in reading anything too precise into words in such notes. The entry is expressed widely enough to cover both financial assistance and assistance with guardianship issues. It is consistent with Mr Godyn's and Ms Heffernan's evidence as to what had passed with the deceased in the previous few days. The Nursing Notes – 9 June 2011 1. The nursing notes for 9 June 2011 confirm Ms Stubbs had a discussion that day with the deceased about the Power of Attorney and Appointment of Enduring Guardian. An extract from the note reads: "…Initially Pt [patient] denied knowledge of doc'n [documentation] however Pt [patient] then referred to doc'n [documentation] as a secret and not wanting other persons to know about it." 1. A later notation for the same entry was underlined for emphasis and reads as follows: "…Please note Pt [patient] does not want his family notified of legal doc'n [documentation]." 1. Mr Godyn and Ms Taylor submit in their supplementary submissions that this aspect of the notes is important for three reasons: the deceased recalled the documentation at least six days after execution; the deceased was able to analyse and appreciate the adverse impacts of the documentation on his family; and this reluctance may explain why the deceased failed to disclose the documents when asked at the Tribunal. 2. The plaintiff disagrees with these submissions. Ms Gray submits that the deceased's failure to recall the documents at the Tribunal hearing would weigh against a finding that he had capacity at the relevant times; such secrecy may point to unsound mind; and other matters raised at the Tribunal hearing went further than the documents alone, particularly because the deceased nominated Maria as his trusted person which shows he lacked consistency in his mental capacity. Tribunal Hearing – 29 July 2011 1. The Tribunal application was heard on 29 July 2011. By then, the picture of the deceased's preferences for his family seemed to be in the ascendant. 2. The deceased told the Tribunal that his sister was a person he trusted in his life. He did not name Mr Godyn or Ms Taylor. Later in the proceedings he also denied ever having signed a Power of Attorney and informed the presiding members that he did not know what such a document was, as he said he had heard the expression for the first time. 3. During the hearing, the presiding Tribunal members contacted Ms Heffernan to give evidence. She gave evidence by phone immediately. Analysis of her evidence appears later in these reasons. But it was apparent that Ms Heffernan did not have the relevant file to hand when she first took the call from the Tribunal. During the phone call, Ms Heffernan was asked the following question: "MEMBER: Okay, could you tell us what process you went through to - that led you to the view that Mr Zajac understood the documents?" 1. Ms Heffernan was finally able to obtain her solicitor's file: This allowed her to orient herself better to the transactions with the deceased. So armed she went on to explain to the Tribunal what she had advised and done for the deceased. This is what she said: "MS HEFFERNAN: … we basically spent some time going through what he was wanting in the will and who he was wanting to appoint under that and then for the enduring guardianship and power of attorney, we also explained, I guess, what the effect of those would be and the powers that he would [be] handing over to those persons. What that would mean, basically…that person could then use their signature in place of his signature to make decisions regarding his finances. So that would include dealing with bank accounts and any assets and that sort of thing that he might own. And he – he seemed to sort of indicate that – that his friend[s], Stan and Anna were the two people that he trusted to be able to make those decisions for him. He said he had another brother…and he was overseas and another sister Theresa as well. But yes, he was most concerned about the sister Maria, I think the wording he used was "She makes a lot of trouble for him," so that's what I noted down here…" 1. Ms Heffernan was questioned about the steps she took to check that the deceased understood the documents, once she had explained them. She responded to the Tribunal as follows: "Well, basically it's usually the case that if there is anything that sort of, I guess, raises concerns with me or if they, you know, seem confused about something, obviously then I might probe more about - asking questions to sort of gain an understanding of whether or not, you know, they know what date it is, you know, like the questions with the brothers and sisters and that sort of thing, asking how many brothers you have how many sisters have you got and all this sort of thing, to see if, you know, they're firstly able to sort of understand coherently their own situation, and from there, I – there weren't any sort of - anything that sort of flagged in my mind as to concerns about his capacity to understand at that time. My understanding was that he was concerned about his sister, who he didn't get along with and – and Stan also – who came in with him on the first occasion, did express as well that he had some concerns about his sister and – and that he and Anna were basically his close friends and looking out for his interests as well. So, yes, I don't know what else I can tell you." 1. The Tribunal delivered its decision with reasons that day. The Tribunal made orders appointing Ms Gray as the deceased's guardian and financial manager for a one-year period. The orders also suspended the operation of the enduring Power of Attorney and Appointment of Enduring Guardian documents signed by the deceased on 3 June 2011. The Tribunal did not purport to determine the deceased's capacity to make the 2011 will. The Deceased's Warilla Aged Care Placement 1. On 1 August 2011, the deceased was discharged from Coledale Hospital and placed in the Warilla Nursing Home (Warilla) for permanent aged care. His friends and family continued to visit him whilst he was there. I accept Ms Gray's evidence that when the deceased was in Warilla, she would visit him at least once a month, and sometimes twice a month. The family also began to renovate his house at that time. 2. Mr Godyn says, and I accept, that he would visit the deceased at least every second day to bring food or to talk to him during this period. Ms Taylor said she visited him until Christmas that year and made regular inquiries of Mr Godyn afterwards about the deceased's progress. She found it emotionally difficult to see the deceased affected as he was by medication. 3. Mr Zajac died at Warilla about two years later. Credibility Issues 1. All the witnesses in this case were credible. But some were more reliable than others. On the plaintiff's side, Kim Gray and her mother, Maria, both gave genuine and honest accounts of their relationship with the deceased. Kim Gray's evidence was frank, open and compelling. She was prepared to make some admissions against interest, conceding that she had seen the deceased less often in more recent years than when she was younger. I accept her evidence that in hospital the deceased seemed to think she was much younger than she was. 2. Maria Hulbert was a more difficult witness to assess. I have little doubt that her evidence was honestly given. But it was not completely reliable, perhaps due to her age and to some degree of estrangement from the deceased in her later years. Some of her observations clash with other reliable evidence and were not given with sufficient certainty for the Court to place great confidence in them. 3. Mr Godyn and Ms Taylor were both excellent witnesses. Ms Taylor was highly credible. Some observations are made about her personality and evidence later in these reasons. Mr Godyn was somewhat dour in manner. With his thick Polish accent, his testimony was difficult to understand at times. But his genuine empathy for the deceased over a 35-year relationship came through. He was an accurate and truthful reporter of events and a witness on whom the Court could almost always rely. 4. Observations are also made later in these reasons about the two professional persons who gave evidence, the psychologist, Ms Williams and the solicitor, Ms Heffernan. Their professional judgments about the deceased, especially those of Ms Heffernan, mark out important points of factual certainty from which other inferences can be drawn to resolve the issues in these proceedings. The Testamentary Capacity of the Deceased - Analysis Testamentary Capacity – the Test 1. The test of testamentary capacity is whether the testator was of sound disposing mind when the will was made. In Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn CJ states the test for testamentary capacity, being "the degree of mental power which should be insisted upon", in the following terms: "…It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." 1. The test has been long approved in high authority in Australia. In Timbury v Coffee (1941) 66 CLR 227, Rich ACJ, at 280, stated the relevant factors of a testator's competency as follows: "…The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty (Frere v. Peacocke (1846) 1 Rob. Eccl. 442, at pp. 452-454;[163 ER 1095, at p. 1099])." 1. The party propounding the instrument carries the onus to establish testamentary capacity. In the event that substantial doubt is cast on the testator's competency, the Court must find the will is invalid unless it can be satisfied that the testator was of sound mind, memory and understanding at the time of execution: Bull v Fulton (1942) 34 CLR 558. 2. In Bailey v Bailey (1924) 34 CLR 558, his Honour Justice Isaacs outlined a number of propositions which arose from the authorities, and stated at 570: (1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt (I838) 2 Moo. P.C.C. 317, at. pp. 319-320; Bremer v. Freeman (1857) 10 Moo. P.C.C. 306, at p. 357; Durnell v. Garfield (1844) 1 Rob. E. 5). 1. In respect of the onus of proof, in Bull v Fulton (1942) 66 CLR 295, Williams J stated, at 343: Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it. 1. The party propounding the will must satisfy the Court of capacity to the civil standard of proof. Mere residual doubt as to capacity is not sufficient to defeat a plaintiff's claim to probate. The doubt cast as to capacity must be substantial enough to preclude a belief that the document propounded is the will of a testator of sound mind, memory and understanding. The joint judgment of Dixon CJ, Webb and Kitto JJ in Worth v Casohm (1952) 86 CLR 439 at 453, states: "A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propended is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution." 1. When considering the question of validity of a will the Court must distinguish between testamentary capacity and a testator's wisdom or fairness. Hodgson JA in Romano v Romano & Anor [2004] NSWCA 37 at [48] cited the following statement on this subject that Gleeson CJ (as his Honour then was) made in in Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 at 291 (Griffith): "Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid." 1. A solicitor's duties for the taking instructions for, preparing, or witnessing the execution of, a will are well-established. Hallen AsJ (as his Honour then was) in Romascu v Manolache [2011] NSWSC 1362 at [169] helpfully isolated relevant statements on solicitor's practice from Santow J's judgment in Pates v Craig; The Estate of Cole (28 August, 1995, unreported). In summary, where testamentary capacity is in doubt, at the very least, a solicitor should ask the testator questions to ascertain the testator's basic understanding, to gain reasonable assurance regarding testamentary capacity. Santow J outlined three propositions to guide the solicitor's process, citing Mason and Handler's Wills, Probate and Administration Service NSW (Butterworths) at [10,019] (now (Mason and Handler's Succession Law and Practice NSW) (Butterworths)). In summary, Santow J said the following in Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported) (Pates) about the solicitors duty: 1. The solicitor should attend on the testator personally and fully question them to determine capacity – where the questions should go to whether the testator understands that he or she is making a will and the effects of the will, the extent of the property to be disposed, and the claims which he or she should give effect to; 2. One or more persons should be present, as chosen by the solicitor with regard to their calibre as a witness should testamentary capacity be challenged. Where possible, this witness should be a medical practitioner, preferably the treating doctor of the testator, and who is familiar with the testator; 3. A detailed written record should be made by the solicitor, which includes the results of the examination recorded by the medical practitioner and the notes made by those present. 4. Once the above processes are followed, upon careful consideration of the circumstances, should the solicitor not be satisfied that the testator does not have capacity, he or she should proceed and prepare the will. As good practice, the solicitor who took instructions should prepare the will and be present upon its execution. Detailed notes should be taken at every stage of the process. 1. Santow J suggested in Pates that if real doubt remains, following the solicitor's consideration of the above factors, further steps may be desirable, including a more thorough medical appraisal. 2. It is clear in this case that due to her relative inexperience, Ms Heffernan departed from these guidelines in two main ways. She did not question the deceased either at the 24 May interview or the 3 June will execution in ways that would test his testamentary capacity. Nor did she ask him questions to ascertain his understanding of the extent of his estate. In addition to that she was unaware of a number of background facts about the deceased's health that may well have led her on a path to engage a medical practitioner to examine the deceased to obtain an opinion about his testamentary capacity. 3. But even if there are omission from good practice a will may yet be admitted to probate. In my view in this case, notwithstanding those omissions, the 2011 will should be admitted to probate. Shifting the Onus 1. Doubts exist about the deceased's testamentary capacity at execution of the 2011 will. Many circumstances point to this: Maria Hulbert gave evidence, which I accept, about the strange things the deceased was saying, at times, in hospital; the results of the neurological tests undertaken on the deceased; his inappropriate behaviour with people during 2011; and the lack of complete information available to Ms Heffernan. 2. Mr Chapple conceded on behalf of Mr Godyn and Ms Taylor that there were doubts. Indeed he accepted that the practical onus of proof had shifted to them to establish that the deceased had testamentary capacity at the time of the 2011 will. Mr Chapple outlined an analysis of the facts to show that the deceased had testamentary capacity. Mr Rennie challenged it in several places, which raised issues that must now be resolved. But in my view, Mr Chapple's analysis is essentially correct. 3. Discourse about the deceased's testamentary capacity to make the 2011 will can be conveniently divided into three parts, relating to the following subjects: (1) the scheme of the will; (2) the medical evidence; and (3) the meetings with Ms Heffernan. (1) The Scheme of the 2011 will 1. The cross-claimants, Mr Godyn and Ms Taylor, contend that the 2011 will was rational on its face and thereby strongly indicates the deceased's testamentary capacity. This submission is persuasive. 2. The 2011 will does not seek to establish complex testamentary trusts, or to gift property to different people in specie. It simply divides the estate in four ways. Less complex wills are less demanding of a testator's testamentary capacity than more complex wills. 3. The beneficiaries of the 2011 will were obvious objects of the deceased's testamentary bounty. Starting with the deceased's siblings in Poland: he had been sending money back to Poland to Kazmierz and Teresa since he was aged 21. At first, the funds were being sent back in part for Kazmierz to build a house, so the deceased could ultimately return to Poland. The mere entrusting of the task of using the funds for that purpose to his brother and sister, shows the deceased had a high degree of confidence in them to look after his interests from a distance. 4. Kazmierz sold the house in Poland in about 1990. The deceased was upset with his brother's sale of the house. But I accept Mr Godyn's evidence that family discord over this issue only lasted a short time: at the most "a couple of months"; according to Mr Godyn, after which "everything was normal". But the deceased settled down and after that the funds continued to be remitted to Poland. These later remittances were simply to help the family. Maria herself said, in response to a question on this subject: "so the last couple of years he would have been sending money to my brother helping towards his life and helping keep up with my mum and dad". The deceased was helping the whole of his family back in Poland; his parents when they were alive, and later just his siblings. 5. This was logical. He had no children of his own. Apart from Maria in Australia, his parents and siblings in Poland were his next of kin. I infer Mr Zajac was concerned to ensure that these family members in Poland were looked after through the monies he was sending over to them. 6. By the time of his 2010 visit, Mr Zajac's parents were deceased. Mr Zajac stayed most of the time in Poland with his sister Teresa. But he also stayed for two weeks with his brother Kazmierz. I accept Mr Godyn's evidence that Mr Zajac's relations with his Polish siblings were good. The deceased is hardly likely to have visited Poland or to have stayed with his siblings if he had continued discord with them. 7. I accept Mr Godyn's and Ms Taylor's submission that there was nothing inofficious in the deceased making Teresa and Kazmierz beneficiaries of the 2011 will, which was made within nine months of his return from Poland. 8. Some inferences about the deceased's exercise of testamentary judgments can be drawn from the 2006 will, which was made with full testamentary capacity. Under the 2006 will Kazmierz receives nothing. And Agata benefits rather than Teresa. It would be too speculative to try and fathom why Kazmierz was omitted from the 2006 will. Perhaps part of the dispute about the sale of the house still lingered on in the deceased's mind. 9. But at the time of the 2006 will, the deceased was prepared to omit his brother, Kazmierz, from his testamentary bounty and only give a modest legacy to his sister Maria. The 2006 will shows the deceased displacing his sister Maria with her daughter Kim. But even in 2006 the deceased did not display an overriding sense of family equality. This applied both with his siblings and among his nieces and nephew. For example, he was quite prepared to reward Kim Gray to a larger degree than her brother Wayne. This analysis shows that for this particular testator inofficiousness is not the first inference that should be drawn from Maria's later omission from the 2011 will. 10. The gift to Mr Godyn is rational. The deceased and Mr Godyn had been friends for over 35 years. They had spent much time together, almost on a daily basis. They were sufficiently close that when Mr Zajac travelled to Poland in 2010 Mr Godyn travelled over there for a time as well and met him there. Mr Godyn and Mr Zajac were close enough that when the deceased was assaulted in Poland, Mr Godyn was the one who arranged to withdraw money here in Australia and send it over to Poland to assist his recovery. 11. Maria recognised this closeness. She gave Mr Godyn her telephone number, so that Mr Godyn could contact her in the event something happened to Mr Zajac. This shows Maria recognised that Mr Godyn could facilitate communications between this brother and sister. 12. And the gift to Ms Taylor is rational. She formed a close friendship with Mr Zajac from 2006. Ms Taylor had an unusual relationship with him. Mr Zajac's relationships with women were generally socially awkward. The evidence is full of examples of Mr Zajac making jarring or sexually inappropriate comments or gestures to the women he encountered. The number of these incidents was somewhat startling even in the brief snapshot of Mr Zajac's life that the Court had. 13. I accept all the evidence from these women. Starting with Ms Gray herself who as a young student found her uncle's embraces and looks a little discomforting. He made sexually inappropriate remarks about Ms Heffernan's secretary, and in the presence of Ms Williams the neuropsychologist. It is not necessary to recount the examples further. 14. But Ms Taylor had his measure. Her relationship with the deceased would be difficult to understand without seeing her in the witness box. She is a passionately engaging and forceful person, who would not have taken any nonsense from Mr Zajac. Yet she had a strong empathy and friendship with him: first, as a customer in her shop; and secondly, as a near neighbour. She demonstrated her commitment to visiting him, taking meals to him and looking out for his welfare, on a near daily basis. She went well beyond the level of commitment that might be shown by a casual neighbour or shopkeeper to a customer. More than three years after the deceased's death, she continued to express in the witness box, strong views about what should have been done in the deceased's best interests to keep him in his home in his last years, rather than to admit him to a nursing home. 15. Whether Ms Taylor was right or wrong in these opinions is not the immediate issue. Much contemporaneous 2011 professional evidence about Mr Zajac's needs was contrary to Ms Taylor's view. Ms Taylor did not have to solve the problem of Mr Zajac's care needs after the Tribunal's decision. Ms Gray did. The social workers and Ms Gray took the view that the only realistic option for the deceased at the time was to be discharged from Coledale Hospital and go into the Warilla Nursing Home. But Ms Taylor passionately espoused a different view. I have little doubt, given her expressive personality, that in 2011 Ms Taylor would have communicated to Mr Zajac her views about where he should live. The full warmth of her commitment to the deceased's interests was likely to have been communicated to the deceased, and in a way that he could not have mistaken. 16. Ms Gray was entirely excluded from the 2011 will. His choice to include her in 2006 was wrought from his affection for her. Her evidence, that I accept, was that he spoke to her about the time of the 2006 will and explained to her why he had given her the substantial portion of his estate. She was quite overcome by his generosity. 17. But displacing Ms Gray by other beneficiaries between 2006 and 2011 is rationally explicable. Changes occurred in the deceased's life during those five years, which tested the daily commitment of friends and relatives to him in a way that showed up differences in the frequency of their contact with, and the directness of their assistance to him. 18. Ms Gray readily conceded that over the years since about 1999 her life had taken a direction away from the deceased. Her duties as a mother of growing children and her professional practice as an accountant did not allow her much regular contact with the deceased. This drift was already underway at the time of the 2006 will but she still retained a pre-eminent place in the hierarchy of Mr Zajac's testamentary interest at that time. 19. But Ms Taylor prominently came into the deceased's life between 2006 and 2011. Ms Taylor took over her shop and moved into Mr Zajac's neighbourhood in 2006. Close daily contact took place between them. But after the deceased returned from Poland in late 2010, suffering brain damage after his assault, Ms Taylor noticed he needed more help and increased her commitment to him. His daily needs were probably easier for her to see, partly because she lived much closer to him than either Kim Gray or Maria Hulbert. She noticed that the deceased was struggling. She responded with a significant increase in her commitment to him. It was a change to which it was not unnatural, in my view, for the deceased to respond when, particularly in the period 2010-early 2011, Ms Gray's presence in his life had not greatly increased. Her presence did increase later, and markedly so; but much of her increased commitment was after Mr Zajaz had made the 2011 will. 20. Maria had fallen out of Mr Zajac's favour, well before the 2010 assault in Poland. Mr Zajac did not tell Maria that he was going on his holiday in Poland before he left. It was at least a two-month holiday overseas, one that it might be expected a brother, who was close to his sister, would warn her was in the offing. This shows a degree of distance between them. 21. This distance is supported by the Coledale Hospital notes. Maria is recorded as saying to the hospital staff, "well he didn't tell anyone" [about the trip to Poland]. But he must have told Mr Godyn, who ultimately met up with him in Poland. It is somewhat less clear if Ms Taylor was aware of his departure. But Ms Taylor did express concern about Mr Zajac's health before he went away. I infer from her neighbourly closeness to the deceased that she too was aware beforehand that he was going to Poland. 22. The hospital nursing notes also support this inference. They (EX 1/ 8) show that the nursing staff made a "phone call to Stan's friend Anna" on 22 February 2011. This was presumably a phone call the deceased, or the social workers in consultation with him, initiated to Ms Taylor. The result of the call seems to be "she [Ms Taylor] was aware that he was going to Poland and advised him not to due to health reasons". 23. Maria and the deceased were not in contact for at least two months before he left from Poland. When the deceased came back from Poland he was disturbed that Maria would not able to look after him in his home on his discharge from the Coledale Hospital. His view on this may well have been based on unrealistic ideas of what both he and Maria could manage. But the deceased held fast to this idea. 24. Other reasons help to explain the deceased's tension with Maria. Maria was concerned about the deceased's relationship with both Mr Godyn and Ms Taylor. Her expressed disquiet about the deceased's relationship with Ms Taylor was even stronger than it was about Mr Godyn. She was anxious about Mr Zajac displaying some affection towards Ms Taylor, being rejected, and then they would find themselves in an embarrassing and potentially hurtful situation. 25. But Maria need not have worried. Ms Taylor could take care of herself. Despite Mr Zajac's awkward relationships with women, a blunder of this kind seemed unlikely given the actual robust relationship between Ms Taylor and Mr Zajac. 26. The hospital notes (EX 1/11) confirm the concern Maria expressed on this subject in evidence. I infer from the notes that Maria communicated her concern about Mr Godyn and Ms Taylor to the Hospital. The notes refer to persons who I infer must be Mr Godyn and Ms Taylor: "Plaintiff's sister rang approximately 17:00 hours asking to speak with Joe who is the social worker. Expressed her concerns regarding friends/neighbours' involvement in decision with brothers' home modifications. Will be visiting tomorrow". 1. On 23 February 2011, the hospital notes record another note of a communication from Maria about Ms Taylor accessing Mr Zajac's home whilst he was in hospital: "Phone call to sister, Maria. She won't be visiting today as she has a migraine. Maria also reports that she is a little concerned about Anna being able to access Stan's property. I explained that this arrangement was made by Stan and was beyond our control at this time". 1. Mr Zajac did give Ms Taylor permission to go into his home whilst he was in Coledale Hospital. Giving of this permission is itself an indication of Mr Zajac's closeness to her. 2. Maria clearly had her differences with her brother. Prior to the making of the 2011 will, the hospital notes show a significant degree of tension between brother and sister. Maria's own contact with the hospital supports that she made admissions to this effect (Exhibit EX1/6): "Maria reports that prior to Stan's Poland trip, Stan and her 'had their differences as far as brother and sister'". 3. There are other examples. On 13 March 2011 (EX 1/34), the nursing notes record: "patient became aggressive when staff gave him the phone to speak to his sister stating, 'I don't want to talk to her'. The patient had received two phone calls earlier that day". 4. Some communication from Ms Taylor in the hospital notes support the Court's earlier findings that Mr Zajac had entrusted Ms Taylor rather than Maria with access to his house when he was in hospital and that this frustrated Maria. 5. Yet again, on 18 March 2011 (EX 1/ 42), the nursing notes record the effect of Maria making phone calls to Anna: "A phone call from Anna, Stan's neighbour, stating that she gets repeated calls from Stan's sister, Maria. She had a call today when Maria asked for Stan's bank book and house keys". 1. This issue seems to have been resolved by an expression of the deceased's satisfaction with Anna continuing to manage his affairs: "Stan and Anna agreed that Anna should keep the key in case it is needed". 2. Maria contacted the hospital in an apparent attempt to keep Ms Taylor at a distance from Mr Zajac. A nursing staff entry on 23 March 2011 reads: "Stan's sister Maria called to say that under no circumstances is Maria [Anna] to take Stan home with her". Maria agreed in cross-examination that the entry was accurate. Her explanation for this was that this she cared for Anna's feelings and was concerned about Anna's welfare, especially if the deceased showed any romantic intentions towards Anna (EX 1/49). The note is significant: more as an indicator of the then tension between brother and sister, than it is of the relationship between the deceased and Anna; and as, confirmation of Maria's mistrust of the relationship between Mr Zajac and Ms Taylor. 3. Confirmation of the deceased's dissatisfaction with his sister's management and his closeness to Ms Taylor springs out of the hospital notes relating to the planning in late March 2011 for Mr Zajac's discharge from Coledale Hospital. Mr Zajac requested Ms Taylor's involvement in his discharge (EX 1/49). The progress note says, and underlined as is the original, "Stan wants, Anna to take him home on Friday the 24 March 2011. Stan reports that Anna always helps him with food, cleaning and getting new carpet. Explain to Stan that Anna will collect him, also explained that Maria is concerned about Anna taking him home. Stan explicitly stated that Anna could take him home and that this is his wish". 4. But Maria did not accept that Ms Taylor could take Mr Zajac home. A hospital note to this effect appears a month later. On 17 May 2011 (EX 1/68) about 2pm hospital staff noted that Maria called several times that day. The comment appears in these notes that Maria is "not making much sense" and is "wanting to take her brother home". The staff were becoming frustrated with Maria's phone calls. I infer that the staff member concerned records, "I've asked her not to call back today as she is wasting the staff's time". 5. The deceased leaving Maria out of the 2011 will is generally consistent with both the relatively modest legacy she had received under the 2006 will, and consistent with the explanation that he provides to Ms Heffernan that his sister "causes trouble and makes problems for him". 6. This was not an accurate account of their entire relationship. Maria Hulbert was in no sense a general troublemaker. She was concerned about her brother's welfare. She had her suspicions that Mr Godyn and Ms Taylor might be taking advantage of Mr Zajac. But she was not sufficiently close to Mr Zajac on a regular basis to make a proper assessment of those relationships for herself. This meant that she was left to communicate warnings about her views to the deceased. He seems to have interpreted this as "causing trouble". Although this was a mischaracterisation of Maria's intentions, it is perhaps an understandable reaction from someone, such as the deceased, who was the object of Maria Hulbert's frequent communications. 7. The Succession Act eligibility criteria indicate that the niece, Ms Gray, is not ordinarily someone who might be expected to appear in the first circle of beneficiaries receiving substantial provision under the deceased's will. She would not be eligible to make a Succession Act claim. Although she had a good relationship with the deceased, they had drifted apart from 1999 for a number of reasons. It is probable that the drift between them was not as obvious to the deceased in 2006 as it had become by 2011. Kim Gray accepted that the drift had occurred from 1999. 8. Ms Gray was quite candid in her assessment that she did not have a strong relationship with her uncle in his later years. She had only seen him about six times a year, reducing to three or four times by 2011. That she was omitted from the 2011 will is a rational recognition of the declining frequency of their contact. (2) The Medical Evidence 1. Mr Godyn and Ms Taylor contend that the medical evidence, when considered as a whole, is probably inconclusive on the issue of testamentary capacity. But in my view the medical evidence contains some sign posts indicating the deceased's testamentary capacity on 3 June 2011. 2. The deceased underwent a number of cognitive screening tests in 2011. He did not score well. Unfortunately the underlying tests and scans are not available. This makes interpretation of the results difficult, even for Ms Tracie Williams, the clinical neuropsychologist who conducted the tests and who gave evidence in the proceedings. 3. The medical evidence is of two different types. First, the hospital records provide a continuous stream of information, recorded on a daily (and sometimes hourly) basis of nursing, social work, and medical observations relevant to the deceased's cognition. Secondly, Ms Williams visited the deceased on four occasions to assess him for his capacity and insight for self-care at home. Each of these types of medical evidence is significant. Looked at over time the hospital notes show an overall stabilisation in Mr Zajac from about the beginning of May 2011. Ms Williams observed he was "consistent over time". Looked at, week-on-week through the notes from May 2011 Mr Zajac is usually orientated, compliant, alert and cooperative. This state continues in the hospital notes throughout June and July. 4. There is some contrary evidence from Maria. She said she was alarmed that the deceased was talking about "monkeys in trees". Maria says, and I accept, that as a result of hearing this she doubted his overall mental capacity. But Maria could not pin down when this conversation took place: she was unsure whether it was close to his early admission in February, or whether it was later. 5. Ms Williams saw the deceased on four occasions: 24 February 2011, 15 March 2011, 2 June 2011 (the day before the 2011 will was made) and 21 June 2011. Ms Williams reported in writing on 5 July 2011. She was reviewing Mr Zajac specifically to assess his own level of insight into his current care needs. She explained, and I accept, that a person's mental capacity is very task-specific and she was only assessing him for that particular task in her testing. I accept Ms Williams' evidence that capacity for different tasks can fluctuate over time and can improve, when a patient's health has stabilised. I also accept her evidence that determining how and when a person's capacity might improve is not an exact science. Stress, emotion and other external factors can impact upon a person's level of cognition at a particular time. 6. The variability of a person's cognitive capacities is relevant. First, Mr Zajac's admission to hospital in February 2011 was his cognitive low point in 2011. His level of cognition did improve after that over 2011. His testamentary capacity in June 2011 should not be judged by his low point in February 2011. Secondly, it is important to focus upon his cognitive capacity as close as possible to the time he made his will on 3 June 2011, to ensure that the factors most influential on his testamentary capacity are given appropriate weight. 7. The 24 February 2011 Meeting. On Ms Williams' first assessment on 24 February 2011 Mr Zajac was oriented to time and place. She observed that he could not identify the current or past Australian Prime Minister. A correct answer to the question about Australia's current Prime Minister has significance. It is a commonly asked question to probe cognitive ability. Ms Williams explains it indicates "someone who may be keeping up-to-date with current affairs and similar matters. It is a way of ascertaining whether "the person has some knowledge of what's going on around them". This question has become harder to answer in recent years. 8. But Mr Zajac's answer changed a few months later. I accept Ms Taylor's evidence that on 6 June 2011 Mr Zajac was able to correctly identify Julia Gillard as Australia's then Prime Minister. Ms Taylor says, and I accept, that on 6 June 2011, when she went to sign the power of attorney, Ms Heffernan asked the deceased "who was the Prime Minister", to which the deceased answered "Julia Gillard". The deceased's better answer to this question close to the time of making the 2011 will is one indicator that his cognition had improved since February 2011 and is consistent with the oral evidence from Mr Godyn and Ms Taylor of such improvement. 9. I accept Ms Williams' evidence that Mr Zajac's correct answers to the question on 6 June point to his general awareness of what was going on around him in the wider world. 10. The 15 March 2011 Meeting. Ms Williams met Mr Zajac for a second time on 15 March 2011. At this meeting Ms Williams took the most detailed notes with Mr Zajac. He performed poorly. He was not oriented to time or date. And her note says that some of his answers to questions were largely "one-dimensional". Interestingly, he was still able to refer to his sister Maria in the course of this consultation, despite his cognitive problems at that time, she was still present to his mind. 11. Mr Zajac says to Ms Williams at this consultation that he would "ring his sister if he needed help with anything". He also agreed that "having someone to help with the housework would be good". He admitted that he "gets to do things around the house". The file note does clearly indicate that he could call his sister to mind. But it is hard to tell if he mentioned her spontaneously or was asked about her. 12. The 2 June 2011 Meeting. Ms Williams' 2 June 2011 meeting had the potential to be very useful: it was only the day before the 2011 will was made. Unfortunately the note of this meeting is very brief. The note shows that Mr Zajac does not remember Ms Williams from their previous meetings. But this may say more about his low levels of cognition in February and March, than his mental state on 2 June. The note is hard to interpret. I accept that it says he was not "oriented to time". But he was also difficult to engage, which suggests gauging his time orientation may have been difficult. 13. The broader evidence suggests that the deceased could, when he wanted, be quite determined. If he did not wish to engage with Ms Williams in the course of having testing done, he was perfectly able to achieve that just by being difficult. It is hard to infer, either way, whether her judgment of his lack of orientation to time was just that, or whether it was the product of his lack of assistance to Ms Williams in answering questions. 14. The 21 June 2011 Meeting. Ms Williams' final consultation was on 21 June 2011. There are no contemporaneous notes of that consultation in the hospital records. Ms Williams' report of 5 July indicates that on 21 June the deceased was able correctly to give his residential address but did not know his phone number. The nature of Ms Williams' questions and answers on this occasion are unclear. 15. Ms Williams was asked to consider whether the deceased's disinhibited behaviour, often toward women, may be a pointer to a loss of mental capacity. She did indicate that disinhibition may be an indication of a loss of mental capacity. Ms Williams offered the view that the frontal lobes of the deceased's brain may have been damaged at some stage. But Mr Zajac's disinhibited behaviour towards women was long-standing. Ms Williams conceded that she would be less inclined to infer loss of mental capacity from a long history of disinhibited behaviour. 16. Ms Williams concluded from these consultations with Mr Zajac that he did not have the capacity to care for himself at home. There is no reason to doubt this conclusion. The Court assesses Ms Williams as a competent and experienced professional. But that conclusion does not answer the question of his testamentary capacity. (3) Three Meetings with Ms Heffernan – 24 May, 3 June and 6 June, 2011 1. Ms Heffernan's interviews with the deceased on 24 May and 3 June 2011 are of central importance. The Court must place less weight on Ms Heffernan's evidence as to Mr Zajac's capacity than it might have done with more a more experienced solicitor, asking more probing questions. Ms Heffernan took no schedule of assets, so it is harder to infer that the deceased was aware of the extent of his estate. The deceased was not asked to provide a family tree or to produce or call to mind his 2006 will. Had Ms Heffernan done so, this might perhaps have helped him to bring to mind whether he wanted to maintain his gift to Kim Gray. 2. Ms Heffernan was a witness of truth. Her evidence was reliable. Giving her evidence in the proceedings was difficult because her conduct as an inexperienced solicitor came under close scrutiny. But she was not defensive about the position in which she found herself. She was quite prepared to admit that she would have handled the interview with Mr Zajac differently had she more years of experience behind her. 3. Ms Heffernan's evidence to the Tribunal in July 2011 supported her reliability as well. She had no warning the Tribunal wanted her to give that evidence. The Tribunal may have informed her office that she would be required to give evidence. But I accept her evidence that no such message reached her in advance of the meeting. The first she knew about the Tribunal hearing was when the Tribunal was being put through to her on the telephone. She immediately called for her file. But she began answering the Tribunal's questions from recollection before she had the file with her. 4. Ms Heffernan's recollection was tested in another way. She prepared her affidavit in these proceedings without the benefit of the transcript of the Tribunal hearing. There is a large degree of consistency between the Tribunal transcript of her account of her dealings with Mr Zajac and the account in her affidavit. She saw the Tribunal transcript for the first time only in Court during this hearing. Where there is inconsistency between Ms Heffernan's account of the meetings held on 24 May and 3 June and Mr Godyn's evidence, I prefer and accept Ms Heffernan's evidence on these matters as I find it more reliable. 5. Ms Heffernan did not ask Mr Zajac to explain the will back to her. Quite a number, but not all, of her questions, resulted in "yes" or "no" answers from Mr Zajac. But her evidence nevertheless shows the deceased spontaneously giving information about his family, his ethnic Polish origins, the Polish community here in Australia and his friends Anna and Stan. He generates these names without prompting, showing he can call them to mind. And he readily brings up Maria's name when prompted about a sister. 6. The deceased provided coherent responses to open questions from Ms Heffernan. Her questions did not require "yes" or "no" answers, although he chose to respond that way. 7. Ms Heffernan's conference on 3 June had more closed questions. But on this occasion he mentions Maria specifically as someone who "makes too much trouble for me. I do not want her in my will". These responses show a level of engagement with the subject at hand and an important potential object of his testamentary bounty which indicates a level of capacity. 8. I accept Ms Heffernan's evidence that Mr Zajac volunteered to her that he wanted the will prepared. There is no suggestion in her evidence that his wish to have a will prepared was in any way prompted by Mr Godyn. Mr Zajac's proposal to make a will was quickly followed by his indication of who was to benefit under the will and who was to be left out. I infer from these quick basic judgments that he had a reasonable grasp on who he wanted to benefit. 9. Ms Heffernan's interview lacked any question about a prior will. But he was aware earlier in the year, whilst in hospital and when his cognition was weaker, that he had made a will in 2006 (EX 1/10). What he said even in those circumstances in conversation with a social worker was factually accurate: "Discussed Stan's legal issues. According to Stan he has made a will with a solicitor named Duncan which leaves his property to his niece in Poland. No PLA or enduring Guardian has been made according to Stan". 1. Apart from a possible mistake in not referring to his niece Ms Gray, this account is mostly consistent with the 2006 will. His disclaimer of an existing power of attorney and enduring guardianship appointment was correct. He may actually be referring to his niece in Sydney. And the reference to "in Poland" could be a transcription error. Not too much can be made of this. Caution should be exercised in attaching importance to particular language used in medical records: Fitzgibbon v Waterways Authority [2003] NSWCA 294. 2. Ms Gray is not mentioned in the conversations with Ms Heffernan. But could he bring her to mind? In my view he probably could. The deceased knew who Ms Gray was. I accept Ms Gray's evidence he exhibited some inaccuracy in his thinking about her age. He seemed to remember her as younger than she was. But that inaccuracy parallels an undoubted fact that Ms Gray had seen him much less frequently in his later life than she had when she was a young woman. And on these occasions he did remember her; just a little differently than she was. 3. Ms Gray said that by the time the deceased was in the nursing home he was more able to recall her proper age and stage of life. She says that once he was in the nursing home "his memory seemed to improve he seemed to… I seem to be able to have conversations with him there about being married and with children". Although Mr Zajac did not enter the nursing home until after June 2011, her evidence is consistent with the trend of his cognition improving over 2011. 4. But Kim Gray was not alone in being left out of the 2011 will. Neither Wayne nor Kim Gray is mentioned in the 2011 will. Neither is Agata, the niece in Poland. 5. Mr Zajac's discussions with Ms Heffernan show reasons for leaving the property to Mr Godyn and Ms Taylor and for leaving out Maria. For historical reasons the deceased was closer to Ms Gray than to any of his other nieces and nephew. But by 2011 she had been displaced by others. 6. The deceased probably could call to mind the property that he owned, despite the fact that Ms Heffernan did not ask. He was asked about this in the Tribunal only about 10 weeks later. He seemed to be on a trajectory of improvement then. So his Tribunal evidence may not a perfectly satisfactory indication of his capacity in this respect in late May early June. But when asked about "who owns your home?" He responds "at this stage it's min[e], you know, I am the owner", he then declares that he has "got money in the Commonwealth Bank" and was able to explain that he received about $700 a fortnight. Indeed he had at that time (Exhibit E) about $14,000 in the Commonwealth Bank and he was receiving approximately $700 per fortnight. 7. But even in the worst period of his hospitalisation, in February 2011 he does have some real memory of his house and the practical side of maintaining it. The hospital notes on 24 February 2011 (EX 1/13) report, "happy for Anna to organise the painting and reflooring of his property and he will pay. Stan reports there is no significant savings, just thousand dollars may be". On 24 February 2011 (EX E) he had about $2,000 in savings. 8. Thus even though Ms Heffernan did not test him on his knowledge of his estate, on two occasions on either side of the date of the will, he was able to give a reasonably accurate account of his property. And his assets were not complex. And his cognitive ability was probably better in early June than it was in February, and better yet again in late July. On the first and last of these occasions he could recall his property. I infer that he was probably able to call it to mind in June, particularly because there are no other signs of substantial deficits that day, the best evidence of which, is Ms Heffernan's own account of their meeting. A Note in Conclusion 1. In the result, the Court concludes that the deceased knew what he was about, had a sense and knowledge of what he was doing and the effect that his dispositions would have and knowledge of what his property was and who those persons were that then were the objects of his bounty. The Court concludes that he had testamentary capacity when he executed his 3 June 2011 will. This Court is not making a judgment in these proceedings, about whether the deceased assessed the relative claims upon his testamentary bounty in conformity with values that reflect accepted community standards. As Gleeson CJ so aptly said in Griffith, "Testamentary capacity is not reserved for people who are wise, or fair, or reasonable". 2. The deceased was influenced by his close contact with Mr Godyn and Ms Taylor to think that with their help he might be able to return home. He was not attracted to Ms Gray's more sober realism, which was well reasoned and corresponded with the conclusions the social worker, Ms Williams reached: that the deceased could not care for himself at home. 3. Ms Gray was undoubtedly doing her best for the deceased. Her 2011 judgments about his future care were probably more accurate than those of either Ms Taylor or Mr Godyn. Neither of them was ever put to the test of producing a home care plan for him. But Kim Gray was delivering a message the deceased did not want to hear. A more insightful testator doing objective justice might perhaps have recognised and rewarded Kim Gray for her courage and honestly in expressing her genuine opinion to him. It is easier now to see this, when all the evidence is reviewed, than perhaps it could ever have been obvious to the deceased. He saw his environment in simpler terms. 4. But these observations do not diminish the Court's conclusion that the deceased had the requisite testamentary capacity at the time of execution of the will for the reasons given. Costs 1. The Court's findings lay out the genuine debate between these parties about the deceased's testamentary capacity at the time of making the will on 3 June 2011. The position each side took on the available evidence was reasonable. The closeness of the debate about the deceased's testamentary capacity is exemplified by the cross-claimants' proper concession that the onus of proof of the deceased's testamentary capacity had shifted to them. 2. Subject to hearing any argument on the issue, this is probably an appropriate case for the costs of the parties to be paid out of the estate. Where the inquiry into the circumstances of the alleged invalidity is justified, as it is here, and where the testator can be said in one sense to be the cause of the litigation even an unsuccessful challenger may get costs out of the estate: In the Will of Field [1931] VLR 37; Pinniger v Stone [2012] NSWCA 73; and Singh v Singh [2008] NSWSC 715. 3. But I have not yet heard the parties on costs. The cross-claimants' have been successful. Unless they want to argue that costs should follow the event, I would hold in this case that the costs of the plaintiff/cross-defendant should be paid out of the estate. The Court will give the cross-claimants an opportunity for 7 days to indicate whether they wish to argue that costs should follow the event. If not the Court will order that the costs of the plaintiff/cross-defendant will be paid out of the estate on the indemnity basis. 4. The Court raised this matter with the parties in the course of final submissions. Both parties accepted that the costs order now being contemplated would probably be an appropriate one, whatever the outcome of the proceedings. There is no need therefore to hear any further argument as to costs. But nevertheless a period of consideration of 7 days will be given in case any issue arises. Conclusion and Orders 1. The Court has found that the late Stanislaw Zajac had testamentary capacity at the time he made his will of 3 June 2011. The Court will grant probate of that will to its named executors, Stanislaw Godyn and Anna Taylor. Their costs will be paid out of the estate on the indemnity basis. Bu the costs of Ms Kim Gray may yet be paid out of the estate. 2. The Court therefore orders: 1. Grant probate of the will of the late Stanislaw Zajac dated 3 June 2011 which is Exhibit A in these proceedings to the cross-claimants. 2. Direct the defendants/cross-claimants within 7 days to notify the plaintiff/cross-defendant and the Court whether they wish to argue that costs should follow the event; and if such notice is given the parties are to contact my associate for the further listing of the proceedings for argument as to costs. 3. If no notification is given under Order (2), the Court will order that the costs of the plaintiff/cross-defendant will be paid out of the estate on the indemnity basis. 4. The defendants'/cross-claimants' costs will be paid out of the estate on the indemnity basis. 5. Remit the matter to the Registrar to complete the grant in accordance with the rules of Court. 6. Otherwise dismiss the Statement of Claim and the Cross-claim. 7. Grant liberty to apply to the parties for 21 days in relation to the implementation of these orders. ********** 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: 09 May 2017