JAMES VINCENT MCINERNEY v PETER FRANCIS D'ORTENZIO (FORMERLY O'DEA) [2026] SASCA 7

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCINTYRE) CIV-21-006442 Appellant: JAMES VINCENT MCINERNEY Counsel: MR A TOKLEY KC WITH MS L GAVRANICH - Solicitor: DONLAN LAWYERS First Respondent: PETER FRANCIS D'ORTENZIO (FORMERLY O'DEA) Counsel: MR M TAYLOR - Solicitor: CAMATTA LEMPENS Second Respondent: CATHOLIC CHURCH ENDOWMENT SOCIETY INC Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: RANDLE & TAYLOR Third Respondent: LIONEL HAROLD DAVIES LANE Counsel: MR J CUDMORE WITH MR W CERNEV - Solicitor: CCK LAWYERS Hearing Date/s: 05/02/2025 File No/s: CIV-24-008688 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MCINERNEY v D'ORTENZIO (FORMERLY O'DEA) & ORS [2026] SASCA 7 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 12 February 2026 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - EVIDENCE - CIRCUMSTANCES AROUSING SUSPICION PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING This is an appeal from the judgment and orders of a single judge of the Supreme Court (‘the trial Judge’) on 22 August 2024 in which her Honour pronounced in favour of a will made on 15 February 2018; and against two wills made on 26 December 2018 and 25 January 2019. The appellant now appeals on the basis that the trial Judge erred in fact and law by making the following findings (each finding underpinning a separate ground of appeal): -- 1 of 66 -- - The December 2018 and January 2019 wills were not rational on their face (Ground 1). - The presumption of testamentary capacity was rebutted (Ground 2). - The appellant did not discharge the burden of proving testamentary capacity in respect of the December 2018 and January 2019 wills (Ground 3). - The presumption of knowledge and approval was rebutted in relation to the December 2018 and January 2019 wills, and the appellant did not establish the same (Ground 4). - The trial Judge erred as to her assessment of the witnesses Mr Gregory Anderson (solicitor) and Mr John Robbins (a close friend) (Ground 5). Held per Livesey P and David JA, (Doyle JA agreeing) granting permission to appeal on all grounds but dismissing the appeal: 1. As to Ground 1, per Livesey P and David JA, the trial Judge’s finding that the December 2018 and the January 2019 wills were not rational on their face was grounded in the substantial change in Shirley O’Dea’s long-standing testamentary dispositions, in circumstances where her Honour did not consider that there was a proper explanation for the change. There was no error in the trial Judge’s finding that the wills were not rational on their face. Per Doyle JA: Observations as to the question of rationality but determining it unnecessary to decide this ground of appeal. Livesey P and David JA, (Doyle JA agreeing): 2. As to Ground 2, having regard to all the contemporaneous medical and nursing evidence, the trial Judge did not err by finding that the medical evidence (in combination with other factors referred to by her Honour) was a matter which raised a doubt as to the presumption of testamentary capacity. 3. As to Ground 3, there was no error by the trial Judge in finding that the appellant had not established, on the balance of probabilities, that Shirley O’Dea had testamentary capacity at the relevant times. 4. As to Ground 4, the trial Judge did not err by finding that the presumption of knowledge and approval was rebutted and that the appellant (as the propounder of both wills) had not proved on the balance of probabilities that Shirley O’Dea knew and approved the contents of both wills. 5. As to Ground 5, there was no error in the trial Judge’s assessment and treatment of the evidence of Gregory Anderson and John Robbins on matters relevant to testamentary capacity and knowledge and approval. It is not necessary to address the notice of alternative contention. The appellant and the second respondent also seek leave to appeal the costs orders made by the trial Judge on 11 December 2024. Held, per Livesey P and David JA (Doyle JA agreeing): 1. Leave to appeal the costs orders made by the trial Judge should be refused. Succession Act 2023 (SA) s 8, referred to. In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110, discussed. Bailey v Bailey (1924) 34 CLR 558; Banks v Goodfellow (1870) LR 5 QB 549; Bool v Bool [1941] St R Qd 26; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Boughton v Knight (1973) LR 3 P & D 64; Briginshaw v Briginshaw (1938) 60 CLR 336; Brown v Gus [2014] VSC 251; Carr v Homersham [2018] NSWCA 65; Crago v McIntyre [1976] 1 NSWR 729; Diedler v Borowiec (No 2) [2023] WASC 396; Frizzo v Frizzo [2011] QCA 308; Greer v Greer [2021] QCA 143; Hayward -- 2 of 66 -- v Moloney [2022] SASC 79; Jones v Jones [2012] QSC 113; Kantor v Vosahlo [2004] VSCA 235; Nicholson v Knaggs [2009] VSC 64; Re Estate of Budniak [2015] NSWSC 934; Re Estate of Griffith (1995) 217 ALR 284; Re Estate of Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698; Roche v Roche [2017] SASC 8; R v Ng (2002) 5 VR 257; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007; Schrader v Schrader [2013] EWHC 466 (Ch); Thomas v Nash (2010) 107 SASR 309; Tobin v Ezekial (2012) 83 NSWLR 757; Timbury v Coffee (1941) 66 CLR 277; Veall v Veall (2015) 46 VR 123; Vukotic v Vukotic (2013) 12 ASTLR 238; Worth v Clasohm (1952) 86 CLR 439, considered. -- 3 of 66 -- MCINERNEY v D'ORTENZIO (FORMERLY O'DEA) & ORS [2026] SASCA 7 Court of Appeal – Civil: Livesey P, S Doyle and David JJA 1 LIVESEY P AND DAVID JA: This is an appeal from the judgment and orders of a single judge of the Supreme Court (‘the trial Judge’) on 22 August 2024 in which her Honour pronounced in favour of a will made on 15 February 2018; and against two wills made on 26 December 2018 and 25 January 2019. 2 Shirley Margaret O’Dea died on 5 October 2020 aged 96 years. She had never married and had no children and was the last of four sisters from a Catholic farming family in the mid-North of South Australia, owning substantial farmland. She was a devout Catholic, who between 2001 and December 2018, made various wills each of which gifted most of her farmland to the second respondent (‘the Catholic Church’), as well as a parcel to her good friends, the third respondent (‘Dr Lane’), and his wife, Peggy (who has passed away). 3 The appellant was a friend of Shirley O’Dea. They became acquainted when she moved to a house in Riverton in 2007 (when she was aged 83 years) and commenced attending church there. Around this time, the appellant was the Chair of the Parish Pastoral Council of the Catholic Parish of Riverton and Manoora. 4 On 31 May 2018, Shirley O’Dea provided instructions to her solicitor, Gregory Anderson, to make some changes to the minor legacies in her will of 15 February 2018 (‘the February 2018 will’). There were no changes to the gifts of farmland to the Catholic Church and Dr Lane. Subsequently, in December 2018 Shirley O’Dea provided instructions to change her will to leave most of her farmland to the appellant. 5 Following a trial lasting several weeks, the trial Judge found that the appellant was substantially involved in the instigation, making and execution of the will dated 26 December 2018 (‘the December 2018 will’) and the will dated 25 January 2019 (‘the January 2019 will’). The trial Judge found that the two wills were duly executed but were not rational on their face. Her Honour found that the presumption of testamentary capacity had been rebutted, and the appellant failed to establish that Shirley O’Dea had testamentary capacity at the relevant times. While it was not necessary to decide, her Honour concluded that the presumption of knowledge and approval had also been displaced, and that the appellant had not established, on the balance of probabilities, that Shirley O’Dea knew and approved the contents of the two wills. 6 The trial Judge pronounced in favour of the February 2018 will. 7 The appellant now appeals on the basis that the trial Judge erred in fact and law by making the following findings (each finding underpinning a separate ground of appeal): -- 4 of 66 -- [2026] SASCA 7 Livesey P and David JA 2 • The December 2018 and January 2019 wills were not rational on their face (Ground 1). • The presumption of testamentary capacity was rebutted (Ground 2). • The appellant did not discharge the burden of proving testamentary capacity in respect of the December 2018 and January 2019 wills (Ground 3). • The presumption of knowledge and approval was rebutted in relation to the December 2018 and January 2019 wills, and the appellant did not establish the same (Ground 4). • The trial Judge erred as to her assessment of the witnesses Mr Gregory Anderson (solicitor) and Mr John Robbins (a close friend) (Ground 5). 8 For the reasons which follow, we grant leave to appeal on all grounds but dismiss the appeal. 9 The third respondent, Dr Lane also filed a notice of alternative contention as to the trial Judge’s findings on knowledge and approval. Given our disposition of appeal ground 4, it is not necessary to consider or determine the notice of alternative contention. The applicable legal principles 10 The parties were not in dispute as to the legal principles applicable when considering issues of testamentary capacity or knowledge and approval of the contents of a will. 11 For a will to be valid it must be executed in accordance with specific formal requirements, and the testator is required to have sufficient mental capacity to make the will.1 At the relevant time, the formal validity of a will required proof of due execution in accordance with s 8 of the Wills Act 1936 (SA).2 Neither party challenged the trial Judge’s finding as to the formal validity of the December 2018 and January 2019 wills. Indeed, this was not contested during the trial. 12 As to testamentary capacity, the traditionally accepted formula is that stated by Cockburn CJ in Banks v Goodfellow (‘Banks’):3 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; 1 Boughton v Knight (1873) LR 3 P & D 64 at 69 (Sir James Hannen P). See also Timbury v Coffee (1941) 66 CLR 277 at 283 (Dixon J). 2 As from 1 January 2025, this provision has been repealed and replaced by s 8 of the Succession Act 2023 (SA). 3 (1870) LR 5 QB 549 at 565. -- 5 of 66 -- [2026] SASCA 7 Livesey P and David JA 3 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. 13 This formulation of the test for mental capacity has routinely been applied in Australia.4 14 It is important to emphasise that the test is one of capacity.5 It need not be established that a testator or testatrix in fact turned his or her mind to, for example, the extent of their property, or the moral claims of potential beneficiaries. 15 It is also well established that for a will to be valid, a testator or testatrix must also have known and approved of the contents of the will. 16 The burden of proving the formal and substantive validity of the will lies with the party propounding it. That is, the party propounding the will bears the legal onus with respect to proof of the formal legal requirements, testamentary capacity and knowledge and approval of the contents of the will. 17 As to testamentary capacity, a rebuttable presumption exists in circumstances where a will is rational on its face and duly executed. If there is evidence to the contrary adduced by the party challenging the will, this may reduce the force of the presumption and shift the evidentiary burden to the party propounding the will. In such a case, the issue will ultimately be determined by reference to the entirety of the evidence on the balance of probabilities. As the majority judgment of the High Court stated in Worth v Clasohm:6 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…. 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 propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of execution… 18 Once a doubt is raised by the party challenging the will, the evidentiary burden shifts to the party propounding the will to lead evidence that either directly proves, or gives rise to an inference, of testamentary capacity. 19 More recently in Tobin v Ezekial7, Meagher JA explained: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced 4 See, for e.g. Bailey v Bailey (1924) 34 CLR 558 at 566–7 (Knox CJ and Starke J); Worth v Clasohm (1952) 86 CLR 439 at 453 (Dixon CJ, Webb and Kitto JJ). 5 Thomas v Nash (2010) 107 SASR 309 at [71]. 6 (1952) 86 CLR 439 at 453 (Dixon CJ, Webb and Kitto JJ). 7 (2012) 83 NSWLR 757 at [45] (Meagher JA). -- 6 of 66 -- [2026] SASCA 7 Livesey P and David JA 4 by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of ‘sound disposing mind’. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity. (citations omitted) 20 However, as Basten JA said in Carr v Homersham,8 ‘a doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity’. 21 In relation to knowledge and approval, in circumstances where there are no ‘suspicious circumstances’ that the testator or testatrix may not have fully known and approved the document, proof of testamentary capacity and due execution of the will gives rise to a presumption that he or she knew of and approved of the contents of the will. However, where ‘suspicious circumstances’ do exist, the presumption does not arise and again, the proponents of the will bear the burden of establishing that the testator or testatrix knew of and approved its contents. 22 The issues of testamentary capacity, and knowledge and approval of the contents of the will, fall to be determined on the civil standard, on the balance of probabilities.9 23 In the present case, the contested issues at trial concerned Shirley O’Dea’s testamentary capacity both at the time of providing instructions and when executing the wills. In particular, the second and third elements of the Banks formulation were in dispute: that is, whether she was aware, at least in general terms, of the extent of the estate over which she had a disposing power; and whether she had the ability to comprehend and appreciate the claims to which she ought to give affect. 24 Shirley O’Dea’s knowledge and approval of the contents of both the December 2018 and January 2019 wills were also the subject of contest between the parties. 25 As mentioned earlier, the trial Judge, after deciding that the two wills were duly executed but were not rational on their face, determined that the presumption of testamentary capacity had been rebutted and the appellant failed to establish Shirley O’Dea’s testamentary capacity. Her Honour also found (although it was not necessary to do so) that the presumption of knowledge and approval of the wills had been displaced. Her Honour also proceeded to find that the appellant did not prove on the balance of probabilities that Shirley O’Dea had knowledge of and approved the content of both wills. 8 [2018] NSWCA 65 at [47] (Basten JA). 9 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 7 of 66 -- [2026] SASCA 7 Livesey P and David JA 5 26 The appeal grounds challenge these essential findings. Generally speaking, the appellant contends that the trial Judge assessed some of the evidence without proper regard to other objective or unchallenged evidence with the result that her Honour has reached erroneous factual and legal conclusions. 27 Given the task of this Court is to review the whole of the evidence and determine whether the trial Judge was in error in reaching her impugned conclusions, it is necessary to outline some of the essential evidence adduced during the trial and upon which her Honour reached her findings. The making of the December 2018 and January 2019 wills 28 By way of background, the evidence established that Shirley O’Dea made several earlier wills. 29 Each of Shirley O’Dea’s wills from 2009 until the December 2018 will gifted either section 431 or section 407 of her farmland to the Lanes. Similarly, each of Shirley O’Dea’s wills from 2001 until the December 2018 will gifted substantial farmland to the Catholic Church. While Shirley O’Dea would often change the amounts of the pecuniary legacies and make other less significant changes to the wills, she remained consistent in her gifts of farmland to the Catholic Church and the Lanes. The earlier wills were relied on by the Catholic Church and the Lanes as evidence of her long-held testamentary intentions. 30 Prior to the appellant’s involvement, Gregory Anderson prepared two wills on her behalf: the first executed on 30 March 2017, and the second on 15 February 2018. The March 2017 will 31 Shirley O’Dea provided instructions to Gregory Anderson on 16 March 2017 to make some changes to the pecuniary legacies in the 1 September 2016 will. A draft will which reflected these changes was prepared and sent to Shirley O’Dea under the cover of a letter dated 17 March 2017. A will was executed on 30 March 2017 and witnessed by Gregory Anderson and Annette Barker. The executed document was apparently a copy of the September 2016 will, and not in fact the draft sent to her on 17 March 2017. 32 The trial Judge found that Shirley O’Dea did not provide any further instructions following the provision of the draft will; and Gregory Anderson erroneously took a copy of the September 2016 will for her to sign. Her Honour also found that neither Gregory Anderson nor Shirley O’Dea read this document at the time of its execution on 30 March 2017. Nor did they read it subsequently. A copy of the executed will was sent back to Shirley O’Dea under cover of a letter dated 3 April 2017. 33 The March 2017 will made no changes to the September 2016 will which gifted the relevant parcels of farmland left to the Catholic Church and the Lanes. -- 8 of 66 -- [2026] SASCA 7 Livesey P and David JA 6 The February 2018 will 34 Gregory Anderson met with Shirley O’Dea on 9 November 2017 in relation to her will. He opened a new file at that appointment. Between 9 November 2017 and February 2018, Shirley O’Dea provided Gregory Anderson with six sets of instructions relating to pecuniary legacies. 35 Gregory Anderson attended on Shirley O’Dea in Balaklava on 15 February 2018 at which time she signed the February 2018 will. Gregory Anderson had no independent memory of the execution of the will. In accordance with instructions received in Gregory Anderson’s office on 7 February 2018, he made some handwritten alterations to the will which were initialled by Shirley O’Dea and both witnesses. There were no changes to her gifts of farmland to the Catholic Church or the Lanes. Events after February 2018 36 Following the execution of the February 2018 will, Shirley O’Dea provided Gregory Anderson with further instructions concerning changes to the minor legacies in her will at a meeting on 31 May 2018. There were no instructions relating to the farmland. Consistent with these instructions, Gregory Anderson provided a draft will to Shirley O’Dea on 8 June 2018. Telstra records did not reveal any contact between the appellant and Shirley O’Dea from 1 January 2018 until 22 June 2018. Based on this evidence, the trial Judge found that any instructions relating to the changes to the gift of the farmland occurred after 22 June 2018. 37 The appellant gave evidence that he visited Shirley O’Dea at her home in Balaklava on 22 June 2018. The trial Judge made no finding as to who instigated this meeting. The appellant said that when he met Shirley O’Dea on the morning of 22 June 2018, she told him that she had been giving her will ‘very serious thought’ for a long period of time and that she wished to make changes. The trial Judge found that the appellant’s evidence to this effect did not sit comfortably with the fact that Gregory Anderson received instructions from Shirley O’Dea on 31 May 2018 as to her will with no indication that she had been thinking of changing her bequest in respect of the farming land. 38 In his first affidavit of 30 March 2021, the appellant said that Shirley O’Dea told him at the meeting on 22 June 2018 that she would like to leave her farmland to him rather than the Catholic Church for the following reasons: • she had a very strong desire for her farm to remain as one and to be well-managed and cared for, which she felt that [the appellant’s] family and [the appellant] would do; • that her family had been an intergenerational farming family and she wanted the land to stay in another intergenerational farming family; -- 9 of 66 -- [2026] SASCA 7 Livesey P and David JA 7 • that she believed the Catholic Church would likely sell the land and said words to the effect that she was concerned that the proceeds would most probably go to general funds in the Catholic Diocese of Adelaide rather than staying in the Riverton/Manoora Parish; and • she was disturbed by cases of child sexual abuse that had been publicised around that time within the Catholic Church. 39 The appellant reiterated in his oral evidence that Shirley O’Dea told him that she was concerned that the Catholic Church would sell the land and the funds would be spent in Adelaide; and she was concerned about sexual abuse within the Church which had come to light at about this time. 40 The trial Judge rejected the appellant’s evidence as to Shirley O’Dea’s purported concerns relating to the Catholic Church. Her Honour observed that the timing of these alleged comments was inconsistent with the evidence of John Robbins and Father Boog, which was to the effect that Shirley O’Dea discussed the topic of alleged child sexual abuse in the Catholic Church as early as the mid-1990s yet continued to gift farmland to the Catholic Church. Similarly, her Honour considered the appellant’s evidence was inconsistent with the evidence of Shirley O’Dea’s previous solicitor, David Evans, that she had included a gift of farming land to the Catholic Church in each of her wills since 2001. Her Honour also noted that following Shirley O’Dea raising a concern about the prospect of the Catholic Church selling the farming land with David Evans in 2007, her subsequent wills included a clause restricting the use of any such proceeds of sale. The appellant’s phone call to Gregory Anderson on 10 August 2018 41 The appellant telephoned Gregory Anderson on 10 August 2018. Gregory Anderson made a contemporaneous file note of this conversation in the following terms: Telephone attendance on [the appellant] on 10 August 2018 that he has had several conversations recently with Shirley who had discussed the proposed gift of some farming land to the Riverton Church. However she is concerned that the church is diminishing in numbers and may eventually face closure in which case the gift would end up passing to the Adelaide Church. Shirley proposes leaving the land which was otherwise passing to the church to [the appellant] who is most embarrassed about the possibility particularly because he had previously suggested to Shirley that if he were to lease the land from her and the land then passes to the church at least the land would continue to be farmed beyond the date of death which would perhaps make it more likely that the church would continue to allow the land to be farmed. He is quite concerned that there might be a suggestion of undue influence and wanted to discuss the matter with me. He attempted to speak to Jack O’Dea who also is to receive a block of farming land to warn him that Shirley was considering leaving that gift to Dr Lane who already is receiving a -- 10 of 66 -- [2026] SASCA 7 Livesey P and David JA 8 portion of the land but he completely misunderstood the nature of the call and made accusations against [the appellant] which were without foundation. I undertook to contact Shirley to arrange a meeting for 23 August to discuss the matter and to ensure that she wishes to make the required changes to the Will and that I would retain these notes on file should there ever be any suggestion that Shirley was influenced by [the appellant] to make the change. 42 Gregory Anderson also gave evidence as to the conversation as follows: Q Mr Anderson, I asked you a question about a conversation you had on 10 August 2018 with [the appellant], can you please describe the nature of that conversation. A [The appellant] rang me, he told me that he had been talking to Shirley, with whom he was well acquainted, and that Shirley was considering making some changes to her will relating to her faming land, and that she wanted to leave some of her farming land to him. He said that he was ringing me because he was extremely embarrassed about the fact that this was Shirley's intention, he wanted to make it absolutely clear to me that he had nothing to do with persuading her to make that decision, and that this had come out of the blue as far he was concerned, and wanted me to make a note of the conversation in case it became relevant. He also - I can't recall if he referred specifically to which parcels of land Shirley was proposing to give him, he did make mention of the Catholic Church, I was already aware of the existing gifts in the will, he made reference to the land being gifted to the Catholic Church, I can't recall whether he referred to any other land in that telephone conversation. The other main subject of that telephone conversation was [the appellant] referring to the fact that he had contacted Jack O'Dea, whom I knew was the executor, to tell him about what Shirley was proposing. He didn't go into detail with me about that conversation other than I can remember him saying that Jack O'Dea completely misinterpreted the reason for the call, and that it all went pear-shaped. So, I don't know what, other than the fact that it was obviously an unsatisfactory telephone conversation, I don't know what else was said. But those were the main topics of discussion in my telephone conversation with [the appellant]. 43 The trial Judge accepted the evidence of Gregory Anderson as an accurate account of his conversation with the appellant. Her Honour also observed that the file note indicated that the appellant told Gregory Anderson of several recent conversations with Shirley O’Dea about her gift of farmland to the Catholic Church which were contrary to the appellant’s evidence that he had only had one discussion with Shirley O’Dea, namely on 22 June 2018. 44 Gregory Anderson’s file note also recorded that the appellant said that the reason advanced by Shirley O’Dea for changing the gift of her land from the Catholic Church to the appellant was her concern over diminishing numbers in the Riverton Church and her fears that the ‘gift would end up passing to the Adelaide Church’. Her Honour observed that there is no reference in the file note to sexual abuse within the Catholic Church as a reason for the change in her testamentary intention. Her Honour found that it was plain from Gregory Anderson’s file note and evidence, that the appellant was keen to avoid any suggestion that he had brought undue influence to bear upon Shirley O’Dea in relation to the gift of farmland to himself. -- 11 of 66 -- [2026] SASCA 7 Livesey P and David JA 9 45 Gregory Anderson’s file note referred to the appellant commenting that he contacted Jack O’Dea to ‘warn him’ that Shirley O’Dea was considering changing the gift of farmland to Jack O’Dea and instead gifting that parcel of land to the Lanes. Contrary to the file note and the evidence of Gregory Anderson, the appellant denied that Shirley O’Dea raised this with him during their conversation on 22 June 2018. The appellant also denied having said this to Gregory Anderson. However, the trial Judge accepted Gregory Anderson’s evidence on this topic and that the file note accurately recorded the appellant’s comments. Telephone conversations between Jack O’Dea and the appellant 46 There was evidence that the appellant made at least three telephone calls to Jack O’Dea to discuss Shirley O’Dea’s will. 47 Jack O’Dea, in his first affidavit of 3 October 2023, said that there were two relevant telephone conversations with the appellant. He said that towards the end of 2015, Shirley O’Dea told him that the appellant wished to lease a parcel of her farmland, following which the appellant telephoned him and discussed this topic. Jack O’Dea said that during this conversation the appellant raised the topic of Shirley O’Dea’s will, and he responded by telling the appellant that he did not have any authority to talk to him about Shirley O’Dea’s affairs. Jack O’Dea said that he ended the conversation. 48 Jack O’Dea gave evidence that he had a second conversation with the appellant in 2018 in relation to Shirley O’Dea’s will (which is referred to above in Gregory Anderson’s file note dated 10 August 2018). 49 Jack O’Dea also gave evidence that the appellant telephoned him on 5 July 2020. He said that during this conversation the appellant told him that Shirley O’Dea had asked him to go with her to a meeting with her solicitor Gregory Anderson and that he had telephoned Gregory Anderson to ask if he could attend the meeting ‘as an observer’. The appellant said that Gregory Anderson told him that he could attend the meeting. The appellant also told Jack O’Dea that Shirley O’Dea was concerned about her farmland being gifted to the Catholic Church given ‘current media topics’ within the Catholic Church. The appellant asked Jack O’Dea whether he knew what was in Shirley O’Dea’s will. Jack O’Dea said he did not. The appellant then asked Jack O’Dea if he wanted to know what was in her will. Jack O’Dea said he did not as it would be inappropriate. Jack O’Dea said the appellant told him during this conversation that he had ‘looked after the O’Dea brothers’. 50 Relevantly, the appellant agreed in evidence that he did try to have a conversation with Jack O’Dea in July 2020 to discuss Shirley O’Dea’s will. However, the appellant denied saying that he ‘had looked after the O’Dea brothers’, or words to that effect. 51 On the basis of this evidence, the trial Judge found that the appellant made persistent efforts to speak to Jack O’Dea about Shirley O’Dea’s will -- 12 of 66 -- [2026] SASCA 7 Livesey P and David JA 10 (notwithstanding Jack O’Dea’s efforts to resist these efforts). Her Honour found that there was no obvious reason for the appellant to do so other than that he was attempting to avoid a suggestion that he had influenced Shirley O’Dea in relation to the gift of substantial farmland to him. The 23 August 2018 meeting 52 Gregory Anderson arranged to meet with Shirley O’Dea in relation to her will on 23 August 2018. Prior to the meeting, he did a property search with the Lands Titles Office as he wanted her to identify her parcels of land to him. Gregory Anderson made a typed note of this meeting as follows. … I have attended to the changes and will make an appointment to see Shirley when I am next in Balaklava to complete execution of the final draft. 53 It is evident that the file note refers to a discussion about ‘changes to her existing will’. However, there is no record of what specifically took place during the meeting or what changes to her will, if any, were discussed. It was common ground at the trial that the appellant was not present at this meeting. 54 Gregory Anderson, in his second affidavit dated 3 February 2022 said that during the meeting on 23 August 2018, Shirley O’Dea provided him with comprehensive instructions as to changes to her will. During his evidence-in-chief, Gregory Anderson said that they discussed the following topics: • The gift of land to the Lanes. • Concerns about the Catholic Church selling the gifts of farmland. • Concerns about the reputation of the Catholic Church following the Royal Commission into Institutional Responses to Child Sexual Abuse. • Shirley O’Dea expressed her confidence that the appellant would not sell her farmland should she gift it to him. 55 The trial Judge observed that none of these topics were recorded by Gregory Anderson in his file note. In addition, Gregory Anderson gave evidence that he thought the meeting lasted about 45 minutes. However, there was no record of the meeting duration in his file note save for Gregory Anderson’s record of two units, or 12 minutes, on his time recording ledger. This time frame appeared inconsistent with the number and nature of topics purportedly discussed during the meeting. 56 During cross-examination, Gregory Anderson conceded that he could not, in fact, recall what Shirley O’Dea discussed with him on that day. He also agreed that she gave him no extensive instructions to make any changes to her will, and his earlier evidence to that effect was incorrect. Gregory Anderson was unable to -- 13 of 66 -- [2026] SASCA 7 Livesey P and David JA 11 outline the specific details of any changes Shirley O’Dea may have discussed with him, except to say that he believed she gave him some instructions to change the pecuniary legacies in her will. However, he did not make any record of these changes, and he was unable to identify what they were. 57 During his evidence, Gregory Anderson initially said that Shirley O’Dea was able to identify from a plan the parcels of land she owned (so as to meet the third limb of the Banks test). However, he later conceded in cross-examination that Shirley O’Dea did not actually identify the entirety of her land but rather she only identified one parcel of the three parcels of land she owned. In addition, he conceded that she did not identify allotment 407 (gifted to the Lanes). 58 Gregory Anderson also accepted that the appellant did not tell him that Shirley O’Dea was considering changing her gift of allotment 407 from the Lanes to the appellant. To the contrary, Gregory Anderson gave evidence that the appellant said that Shirley O’Dea was considering enlarging her gift of farming land to the Lanes (to the detriment of Jack and Anthony O’Dea). 59 Based on the evidence of Gregory Anderson, and his concession that Shirley O’Dea gave him no instructions to make any significant changes to her will, the trial Judge found that Shirley O’Dea did not provide any instructions at the meeting on 23 August 2018 in relation to the farmland. In particular, her Honour found there was no evidence that she wished to change her will because of concerns she had about the Catholic Church selling her land or by reason of concerns held about child sexual abuse scandals within the Catholic Church. The trial Judge also found that there was no evidence that Shirley O’Dea gave instructions to change her will in relation to the gift of allotment 407 to the Lanes, either to enlarge it at the expense of the O’Dea brothers, or to alter it in the manner that occurred in subsequent wills. The appellant’s phone call to Gregory Anderson on 26 November 2018 60 The appellant phoned Gregory Anderson on 26 November 2018. By way of explanation for this telephone call, the appellant said that Shirley O’Dea asked him to attend a meeting with Gregory Anderson at her unit on 6 December 2018, and he phoned Gregory Anderson to ask him whether it was appropriate for him to do so. 61 Gregory Anderson, in his second affidavit said that he had a telephone conversation with the appellant on 26 November 2018. Gregory Anderson could not recall any details of this telephone call. In particular, he did not recall whether the appellant asked his permission to attend a meeting with Shirley O’Dea. 62 On the same day, Gregory Anderson undertook some land title searches in relation to allotments 407, 405, 431 and 480 (all owned by Shirley O’Dea). The trial Judge considered it likely that these land title searches were prompted by the appellant’s phone call. -- 14 of 66 -- [2026] SASCA 7 Livesey P and David JA 12 63 Gregory Anderson met with Shirley O’Dea on 6 December 2018 at her unit in Balaklava. The appellant was present throughout the meeting. The trial Judge found that it was unclear how, or when, the 6 December 2018 meeting was arranged. Her Honour also found there was no evidence that Shirley O’Dea or Gregory Anderson had arranged to meet prior to the appellant’s telephone call on 26 November 2018. That finding was based on the absence of any record in Gregory Anderson’s file of any telephone attendance on Shirley O’Dea between 23 August 2018 and 26 November 2018. Gregory Anderson also had no correspondence with Shirley O’Dea following their meeting on 23 August 2018. 64 The trial Judge also considered it likely that the meeting on 6 December 2018 was either organised, or prompted, by the appellant’s telephone call on 26 November 2018. The trial Judge rejected the appellant’s evidence that Shirley O’Dea already had an appointment to see Gregory Anderson by the time of his phone call to Gregory Anderson on 26 November 2018 (presumably again on the basis of the absence of any correspondence between Shirley O’Dea and Gregory Anderson between 23 August 2018 and 26 November 2018). In addition, her Honour found that the appellant had no obvious claim to be acting on Shirley O’Dea’s behalf, and his telephone call on 26 November 2018 showed ‘a concerning level of involvement in Shirley O’Dea’s testamentary affairs’. The meeting on 6 December 2018 65 The appellant gave evidence that he was present at the meeting on 6 December 2018 between Shirley O’Dea and Gregory Anderson at Shirley O’Dea’s insistence. He said that Gregory Anderson had consented to him being present on the condition that he did not participate in any of the discussions at the meeting. 66 Gregory Anderson said in his first affidavit dated 31 January 2022 that he always met with Shirley O’Dea alone. In his evidence, Gregory Anderson initially said that he could not recall the appellant being present at the meeting on 6 December 2018. He agreed that it would have been inappropriate for the appellant to have been present. However, he later conceded that it was possible that the appellant was present at the meeting. 67 As mentioned earlier, the trial Judge found that the appellant was present at the meeting with himself and Shirey O’Dea on 6 December 2018. 68 Gregory Anderson did not make any contemporaneous record of that meeting. He dictated a file note of the meeting on 7 December 2018. There are in fact two file notes, both dictated on 7 December 2018. 69 As to the reason for there being two file notes, Gregory Anderson explained that he ‘must have read my initial file note and decided that it wasn’t a complete enough description of the events of the meeting.’ The trial Judge found that this explanation was unsatisfactory. In addition, her Honour observed that both file notes (read separately or together) do not reflect the level of detail that one would -- 15 of 66 -- [2026] SASCA 7 Livesey P and David JA 13 expect from a solicitor taking instructions about significant changes to a will, such as in the present circumstances. Her Honour observed that neither file note recorded that the appellant was present at the meeting. Nor was there any record of the precise instructions given by Shirley O’Dea or the steps he took, if any, to ensure satisfaction with the Banks test. 70 The first file note is relevantly in the following terms: … She now wishes to leave the land previously gifted to the Catholic Church to [the appellant] who is a distant relative and who carries on a primary production business near Riverton. The land in question is Sections 405, 480 and 270 in the Hundred of Alma. We also discussed the gift of Section 407 which comprises approximately 250 acres to her friends Harold Lane and Peggy Lane. I pointed out that the value of the land would be approximately $650,000.00 which is an extraordinarily generous gift to an acquaintance, particularly as the Lanes are not farmers and both are financially well off. After some discussion it was agreed that the Lanes received a life interest in Section 407 which would then give them the income from the land and upon the death of the survivor of them the land would pass to [the appellant]. The gift of the remaining farming land referred to in clause 4.3 of the Will to Anthony and Jack O’Dea remains unchanged. I am to forward a draft of the amended Will to Shirley for her examination and approval and will then arrange a meeting with her on my last visit to Balaklava on 20 December next. 71 The second file note is as follows: … She now wishes to leave the land previously gifted to the Catholic Church to [the appellant]. [The appellant] was the Chairman of the Riverton Parish Council and had a lot to do with Shirley. She previously was proposing to gift some of her farming land to the Church but is now concerned that if she does so, the Church will sell the land and the proceeds will be spent in places other than Riverton. She also indicated that she is very keen for the land not to be sold and to remain as farming land and knows that if she gifts some of the land to [the appellant] it will certainly remain within the [appellant’s] family on a long term basis. [The appellant] contacted me by telephone four or five months ago to say that during a visit with Shirley she had expressed a desire to gift some of her farming land to him and he was very embarrassed about the proposal and wanted me to know firstly that Shirley and he had discussed the matter but also to tell me that under no circumstances did he suggest the idea and did not exert any influence over Shirley to make a gift of land to him. It appears that Shirley’s desire to proceed as she now proposes, has been in her mind for quite some time. … 72 Gregory Anderson was asked whether he spoke to Shirley O’Dea about her purported concerns that the Catholic Church would sell her land, and the fact that -- 16 of 66 -- [2026] SASCA 7 Livesey P and David JA 14 her previous wills had included conditions regarding the use of the proceeds of sale if the Catholic Church did in fact sell the land. The trial Judge found that Gregory Anderson’s evidence on this topic was vague and unsatisfactory. She ultimately concluded that Gregory Anderson did not discuss either topic with Shirley O’Dea. 73 As to the changes to the gift of land to the Lanes, it is evident that both file notes record a discussion about the gift of allotment 407 to the Lanes and the value of that gift. Both file notes record that it was agreed that the Lanes receive a life interest in Section 407 (which would then give them the income from the land) and upon their death the land would pass to the appellant. 74 Gregory Anderson said that he suggested to Shirley O’Dea the alternative option of a life interest in the land rather than an outright gift to the Lanes. He was unable to explain why he did so. Gregory Anderson said that he also told Shirley O’Dea that his estimate of the value of allotment 407 was about $650,000. The trial Judge found that this estimate was a considerable underestimate given there was valuation evidence that the land (at the time) was worth around $1,205,000. Gregory Anderson agreed there was no discussion about the value of the life interest with Shirley O’Dea and that she would not have known the value of the land or the value of the life interest in the land. 75 The trial Judge found that Gregory Anderson’s evidence as to what, if any, instructions were provided to him by Shirley O’Dea at the meeting on 6 December 2018 was unreliable and unsatisfactory. Her Honour found that Gregory Anderson did not undertake any assessment of Shirley O’Dea’s testamentary capacity contrary to his affidavit of 31 January 2022. Moreover, her Honour considered that it was of ‘particular concern’ that Gregory Anderson permitted the appellant to be present at this meeting despite his acknowledgment that this was inappropriate and that by so doing, he did not properly consider the issue of whether any undue influence was being brought to bear by the appellant on Shirley O’Dea. 76 The appellant also gave evidence as to what took place at the meeting on 6 December 2018. He said that during this meeting Shirley O’Dea simply confirmed the instructions she had previously given to Gregory Anderson. Relevantly, the appellant said that the topic of why Shirley O’Dea was changing her will did not arise during the meeting on 6 December 2018. 77 As to the change to the gift of farming land to the Lanes, the appellant said that Shirley O’Dea said she was very pleased because it was getting her out of a very sticky situation. 78 The trial Judge rejected the appellant’s evidence about the meeting on 6 December 2018 as unreliable. -- 17 of 66 -- [2026] SASCA 7 Livesey P and David JA 15 Events after the 6 December 2018 meeting 79 Following the meeting on 6 December 2018, Gregory Anderson drafted a new will for Shirley O’Dea. Gregory Anderson posted a draft will to Shirley O’Dea under cover of a letter dated 10 December 2018. There was no copy of the draft will on Gregory Anderson’s file. Gregory Anderson gave evidence that he assumed that it was the same will that Shirley O’Dea signed on 26 December 2018 with a draft stamp on it. 80 The covering letter dated 10 December 2018 on Gregory Anderson’s file states: I refer you in particular to clauses 4.1 and 4.2 of the draft which have been changed in accordance with our discussion. Please let me know if you consider any other amendments are required prior to a proposed meeting with you at your unit on Thursday 20 December 2018. 81 The trial Judge observed that the covering letter of 10 December 2018 does not contain any explanation of the will. In addition, Clause 4.1 is the clause which gifts the land previously left to the Catholic Church to the appellant. Clause 4.2 relates to allotment 407 and the amended gift to the Lanes. Clause 4.2 directs that upon the death of the survivor the land is to ‘pass to [the appellant] subject to the same trusts as are detailed in clause 4.1 of my will.’ There are, however, no trusts detailed in clause 4.1. The 20 December 2018 meeting 82 Gregory Anderson attended on Shirley O’Dea in Balaklava on 20 December 2018. He dictated a file note of the meeting on 7 January 2019. It which relevantly states: … I discussed the recent changes to the Will involving the transfer of farming land to [the appellant] with Shirley who confirmed that she still wishes to proceed as previously instructed. I left the Will with Shirley to read carefully and then to arrange execution. 83 Gregory Anderson gave evidence that he went through the changes to the gifts of farmland with Shirley O’Dea but not the minor gifts as there were no changes to her pecuniary beneficiaries from the February 2018 will. Her Honour observed that Gregory Anderson conceded later in his evidence that there were, in fact, significant changes to the pecuniary beneficiaries. Her Honour considered that it was unclear on Gregory Anderson’s evidence when and where Shirley O’Dea gave instructions for those changes. 84 In relation to the farmland, Gregory Anderson gave evidence that he outlined to Shirley O’Dea the changes to the gifts of farming land by paraphrasing those changes. However, the file note does not record that he read over the changes to -- 18 of 66 -- [2026] SASCA 7 Livesey P and David JA 16 the gifts of farming land to Shirley O’Dea. Rather, it records that he left the will with her on 20 December 2018 for her to read herself. 85 Gregory Anderson ultimately conceded that he did not know if Shirley O’Dea read the will before signing it. 86 The trial Judge rejected Gregory Anderson’s evidence that he paraphrased the changes to the farming land clauses for Shirley O’Dea on the basis of the file note, and, in part, because the will contains a significant drafting error. Clause 4.2 makes an erroneous reference to trusts detailed in clause 4.1. Yet, clause 4.1 contains no trusts. 87 As mentioned earlier, Gregory Anderson conceded, and the trial Judge found, that he did not undertake any assessment of Shirley O’Dea’s testamentary capacity on 20 December 2018 (or indeed, earlier on 6 December 2018). Her Honour said that even if she had accepted Gregory Anderson’s evidence that he paraphrased the changes to the gifts of farmland, this was not sufficient in light of the significant nature of the changes combined with Shirley O’Dea’s advanced age and cognitive decline and poor vision (which will be discussed later). 88 Gregory Anderson left the will and an express post envelope with Shirley O’Dea on 20 December 2018 for her to arrange for its execution and to return it to his office. The trial Judge considered this was unsatisfactory and Gregory Anderson ought to have arranged formal execution of the will with independent witnesses taking care to ensure that Shirley O’Dea knew and understood the contents of her will. The execution of the will on 26 December 2018 89 The appellant said that Shirley O’Dea came to his house for lunch on 26 December 2018. The appellant then drove Shirley O’Dea back to the nursing home where she was living for respite care. The appellant said that Shirley O’Dea told him that she had met with Gregory Anderson and that he had prepared a will for her, and she wanted to sign it as soon as possible. He said Shirley O’Dea told him that she had read it over with Gregory Anderson and she was satisfied as to its terms. She asked if he would assist her to arrange witnesses that day. The appellant said that he did not read over the will with Shirley O’Dea as he did not consider it was appropriate for him to do so. 90 The appellant said he collected the will from Shirley O’Dea’s unit. He said that he did not notice that it had a ‘draft’ stamp on it. He then took it back to the nursing home and presented the will to Shirley O’Dea. The appellant said he made sure that each page was signed appropriately where it needed to be signed and flipped the pages. He said the will was witnessed by two nursing staff members, Maureen Pisano and Molly Smallacombe. 91 Maureen Pisano gave evidence. She identified her signature on the 26 December 2018 will. She said that she had no independent recollection of -- 19 of 66 -- [2026] SASCA 7 Livesey P and David JA 17 witnessing a will only a ‘legal document’. She had no memory of the appellant being present and flipping the pages. Maureen Pisano said that she did not recall seeing the ‘draft’ stamp on the will. She said that Shirley O’Dea did not apparently read the document nor was it read to Shirley O’Dea in her presence. 92 Molly Smallacombe also gave evidence. Her Honour found that Molly Smallacombe simply did not recall witnessing Shirley O’Dea’s signature, and at best, her evidence confirmed that the signature on the document was hers. 93 In relation to the December 2018 will, the trial Judge found that on any view of the evidence, Shirley O’Dea did not read the document before signing it, and the fact that no one noticed the document was stamped ‘draft’ supported this conclusion. The 25 January 2019 will 94 The appellant gave evidence that Shirley O’Dea contacted him about a fortnight after the December 2018 will was executed to advise him that she had been told by nursing home management that it was against its policy to have staff witness documents. The appellant said that Shirley O’Dea told him that the will would need to be re-signed and she requested his assistance. 95 The appellant did not say either in his evidence-in-chief, or in any of his affidavits, that he or Shirley O’Dea were concerned about the draft stamp on the December 2018 will. However, in cross-examination the appellant said, for the first time, that Shirley O’Dea told him that the will was invalid for two reasons: first, it was stamped 'Draft'; and secondly, it was improper that it was witnessed by two nursing home staff members. 96 The trial Judge rejected the appellant’s evidence that Shirley O’Dea told him that it was against policy for nursing staff to witness legal documents on the basis that Gregory Anderson gave evidence that he arranged for a senior member of the nursing home staff to sign an earlier will on 1 September 2016, without any concerns being raised by the staff member or the nursing home. Further, her Honour noted that neither Molly Smallacombe nor Maureen Pisano gave evidence of this being an issue. The trial Judge found it more likely that the appellant noticed the ‘draft’ stamp on the December 2018 will, and for that reason was concerned the will was not valid so arranged for the re-execution of the will. 97 The appellant said that he visited Shirley O’Dea on 25 January 2019. He said he arranged for Raymond McCracken and Rebecca Durdin (the owner and an employee of a local motor vehicle dealership situated close to the nursing home) to witness the signing of the will. 98 Raymond McCracken gave evidence and swore two affidavits related to the circumstances in which the appellant arranged for him to witness the signature of Shirley O’Dea on the January 2019 will. Raymond McCracken had known Shirley O’Dea for about 15 years. After being approached by the appellant, he attended at -- 20 of 66 -- [2026] SASCA 7 Livesey P and David JA 18 the nursing home and had a brief conversation with Shirley O’Dea whom he said recognised him. He said she appeared the same as usual. 99 Rebecca Durdin also gave evidence and provided two affidavits. She did not know and had never met Shirley O’Dea before 25 January 2019 but considered that Shirley O’Dea appeared to know what was happening. 100 Both Raymond McCracken and Rebecca Durdin said that Shirley O’Dea did not read the January 2019 will in their presence, nor was the will read over to her in their presence. 101 It was common ground during the trial that there were handwritten notations to the January 2019 will. Neither Raymond McCracken nor Rebecca Durdin could recall whether those amendments had been made at the time they witnessed the will. 102 The appellant gave evidence that he turned the pages of the will as it was being signed. He said he presumed the handwritten notations were already on the will. He said that he was not taking notice of the contents of the will as he flipped through the pages quickly. 103 The appellant said that he later placed the January 2019 will into an envelope which was already addressed to Mellor Olsson Solicitors and posted it the same day. Physical and mental health of Shirley O’Dea 104 There was a body of evidence adduced at trial as to the physical and mental health of Shirley O’Dea during late 2018 and early 2019. This evidence was adduced from her general practitioner, Dr Langton Nyoni, as well as from community nursing staff and staff members of the nursing home where she resided in late 2018 and early 2019. 105 Shirley O’Dea was aged 94 at the time of providing instructions and executing both wills. She was aged 96 years at the time of her death in October 2020. It was common ground that she was suffering from various health issues at the relevant time. However, the nature of those health issues and their effect on her testamentary capacity was the subject of dispute between the parties. Dr Nyoni & the Wakefield Plains Medical Centre notes 106 Shirley O’Dea had been a patient of the Wakefield Plains Medical Centre from at least 2000. Dr Nyoni was her principal treating doctor at the clinic from 2008. He gave evidence that Shirley O’Dea suffered a number of medical conditions including hypertension, peripheral vascular disease, back ache, arthritis in the spine, particularly the lumbar spine and recurring leg ulcers. -- 21 of 66 -- [2026] SASCA 7 Livesey P and David JA 19 107 In June 2014, Dr Nyoni noted that Shirley O’Dea had moved to the Mill Court units which provided assisted living. He arranged for her to have Meals on Wheels owing to her health issues. 108 On 2 September 2015, Dr Nyoni noted that Shirley O’Dea was surrendering her driver’s licence as her vision was deteriorating. 109 Relevantly, on 25 October 2018, Suzanne McDonald from community nursing sent an email to Dr Nyoni advising him of various concerns raised by visiting nursing staff about Shirley O’Dea’s presentation. As a result of this email, Dr Nyoni saw Shirley O’Dea on 29 October 2018. He administered a mini-mental state examination (‘a MMSE’), which indicated mild cognitive impairment. Dr Nyoni diagnosed her as suffering from mild cognitive decline. 110 On 22 November 2018, Dr Nyoni saw Shirley O’Dea with Jack O’Dea (the executor of her wills). Jack O’Dea gave evidence that he attended at this appointment after having received a telephone call from Dr Nyoni who expressed concern about Shirley O’Dea living independently. Jack O’Dea said that Dr Nyoni wanted him to encourage Shirley O’Dea to enter respite care at the Mill Court Nursing Home. 111 On 3 December 2018, an Aged Care and Treatment Assessment (‘an ACAT Assessment’) was performed in relation to Shirley O’Dea. Jack O’Dea and his partner also attended. The ACAT Assessment Report dated 4 December 2018 says that Shirley O’Dea experienced ‘mild cognitive impairment’. 112 Shirley O’Dea moved into the Mill Court Nursing Home in January 2019. Community nursing notes 113 Between 6 September 2018 and 3 January 2019, Shirley O’Dea was treated by various community nurses. Their notes were tendered during the trial. In addition, two nurses Suzanne McDonald and Sonja Gangell gave oral evidence. Sonja Gangell and Suzanne McDonald both described observing a decline in Shirley O’Dea’s self-care in 2018 to 2019. The trial Judge described them as impressive witnesses and her Honour accepted their evidence. 114 Sonja Gangell had little independent recollection of her visits with Shirley O’Dea except for one incident on 25 October 2018 (described below). 115 By reference to the notes, community nurses recorded various observations as to Shirley O’Dea being confused and as to a level of deterioration in her self-care. The more notable examples include: • Suzanne McDonald visited Shirley O’Dea on 7 September 2018. She described Shirley O’Dea as having just got out of bed and being quite confused. Shirley O’Dea said she did not know that the doctor had organised nursing for her. -- 22 of 66 -- [2026] SASCA 7 Livesey P and David JA 20 • Belinda Maywoidt visited Shirley O’Dea on 26 September 2018 to tend to her ulcer wounds. She described Shirley O’Dea as being confused as to why a nurse was visiting her. She described Shirley O’Dea as appearing dishevelled and wearing food-stained clothing. The unit was unkempt and there were food grime stains over the kitchen/dining area. • On 12 October 2018, Debra Gilding noted that Shirley O’Dea was wearing no makeup and no stockings which was unusual. • On 15 October, Belinda Maywoidt described Shirley O’Dea as being very confused and unsure what the appointment was for. • On 16 October 2018, Shirley O’Dea went to the doctor’s clinic where it was recorded that she arrived 40 minutes late. The person who transported her to appointments noted that Shirley O’Dea was still in bed when she went to pick her up. • On 22 October 2018, Belinda Maywoidt described finding Shirley O’Dea asleep in her chair. A meal was sitting on the table, but Shirley O’Dea was unable to recall the meal having been delivered. Belinda Maywoidt assisted her to set the meal up, and when she returned some two hours later to attend to dressing her ulcers, Shirley O’Dea did not recall that Belinda Maywoidt had been there earlier. • On 25 October 2018, when Sonja Gangell attended the unit, she found Shirley O’Dea sitting in the lounge chair and there was a strong smell of smoke in the unit. Shirley O’Dea could not explain the reason for the smell of smoke, but Sonia Gangell found a burnt saucepan in the sink. Sonja Gangell raised the issue of having a ‘Plan B’ in case of emergency or illness. Shirley O’Dea said that her “nephew Jack” was taking care of her financial matters. • On 19 November 2018, Sarah Young attended and noted that Shirley O’Dea looked dishevelled, that the unit was very dirty with bins overflowing and that the sink was full of dishes and the milk was left out of the fridge. • On 6 December 2018, Sonja Gangell noted that Shirley O’Dea was alert and engaging well in conversation. • On 17 December 2018, there was a note that Shirley O’Dea smelled strongly of urine which was unusual for her as she was ‘very proud in her presentation’. • On 27 December 2018, Sonja Gangell said that Shirley O’Dea was dressed in a dishevelled way. -- 23 of 66 -- [2026] SASCA 7 Livesey P and David JA 21 116 As a result of the incident on 25 October 2018, Suzanne McDonald sent an email to Dr Nyoni (referred to earlier) outlining her concerns about Shirley O’Dea’s safety and noting her recent presentation to other community health nurses. 117 Suzanne McDonald said that she discussed the topic of Shirley O’Dea moving into a nursing home with her because she was concerned that she was not safe in her unit. Suzanne McDonald suggested that she should consider respite care and see if she liked it, but Shirley O’Dea would ‘not have a bar of it’. 118 Subsequently, on 4 January 2019, Shirley O’Dea signed a respite agreement and entered the nursing home for respite care. On 7 March 2019, she signed a resident and accommodation agreement, as she decided to remain there as a permanent resident. 119 Julie-Ann Christie witnessed the respite agreement on 4 January 2019. She did not have any independent recollection of doing so and she could not recall Shirley O’Dea’s presentation on the day. Julie-Ann Christie also gave evidence that she saw Shirley O’Dea for 10 to 15 minutes approximately every Friday for the last six months of 2018, and that their conversations were mostly about the community and mutual acquaintances. 120 The resident and accommodation agreement was signed by Rebecca Hudson, a care manager at the nursing home on 7 March 2019. She said that she went through the respite agreement with Shirley O’Dea, and clarified her name, date of birth and current address. She then discussed the room, the fee per day and any additional fees. Rebecca Hudson said that she explained to Shirley O’Dea that the agreement was not binding. 121 In relation to her cognitive abilities while living at the nursing home, Molly Smallacombe gave evidence that Shirley O’Dea was independent, able to carry on conversations, and that she only required limited assistance with daily living. She said the assistance was ‘more to do with physical aspects’. Advance Care Directive and the Enduring Power of Attorney 122 The nursing home required Shirley O’Dea to have a signed Advanced Care Directive (‘an ACD’) and an Enduring Power of Attorney (‘an EPoA’). David Evans (who was Shirley O’Dea’s previous solicitor) drafted an ACD which appointed Jack O’Dea as the primary substitute decision maker. He also prepared an EPoA which appointed Jack O’Dea as Shirley O’Dea’s attorney. 123 David Evans and Jack O’Dea together travelled to the nursing home on 18 January 2019. David Evans said that Jack O’Dea had raised with him the possibility that Shirley O’Dea lacked capacity such that it may not be possible to execute the documents. As such, he was alert to issues surrounding her mental capacity. David Evans said that Shirley O’Dea recognised him immediately. -- 24 of 66 -- [2026] SASCA 7 Livesey P and David JA 22 However, Jack O’Dea gave evidence that Shirley O’Dea did not recognise David Evans. 124 As to the signing of the ACD and EPoA, it was common ground that Jack O’Dea was not in the room when the documents were signed. David Evans set out the circumstances in which this occurred in his affidavit of 21 March 2022. There was no significant challenge to his account, and the trial Judge accepted it as accurate. David Evans said: 15. Among other things, some of that time was spent: (1) Confirming it was her wish to continue to make appointment of Substitute Decision-Makers and what that might mean for her; (2) Confirming that the re-arrangement of personnel in the 2019 ACD and the personnel themselves accorded with her wishes; (3) Confirming that the directions in the 2019 ACD for the guidance of the Substitute Decision-Makers, which directions remained unchanged from the 2016 ACD, were still all embodied her wishes; (4) Explaining the nature of the Enduring Power of Attorney and what circumstances might trigger its operation; (5) Confirming that the Applicant, and in substitution I, were the people she would wish to carry out the work of Attorneys and what our obligations were in terms of acting in the best interests of the deceased at all times and keeping appropriate records of all work done pursuant to the appointment and the scope of the power over her affairs and the risks for her the appointment involved if the operation of the document was triggered; and (6) Confirming that the deceased understood all of the information I was conveying to her in order to satisfy myself that she had the necessary capacity to understand each document and that she was not acting under any duress or coercion. 16. I formed the view that the deceased knew and approved the documents and that, in accordance with her wishes, she was able to proceed to execute them. 17. I therefore sought to arrange for an independent person being a Justice of the Peace Debra Paula Swan (JP No 20663) from the Wakefield Regional Council to attend to witness the deceased’s execution of each document given that, pursuant to the terms of the Power of Attorney, I was to be appointed as a substitute attorney in the event that the Applicant was unable to unwilling to act. 18. When the JP arrived I explained to each of the persons where to sign each of the documents to ensure that the signatures all took place in the correct order given the difference in signing requirements for the two documents. 19. I say that after questioning the deceased and evaluating her mental capacity I did not have any concerns as to her capacity to know and understand the terms of each of the documents presented and the effect of executing them. Annexed hereto and marked respectively “DLE-1” and “DLE-2” are copies of the EPOA and 2019 ACD documents referred to herein each dated 18 January 2019. -- 25 of 66 -- [2026] SASCA 7 Livesey P and David JA 23 125 David Evans gave evidence that he had last seen Shirley O’Dea in 2016, and he considered there to be very little change in her mental acuity from that time. 126 Debra Swan (a Justice of the Peace) witnessed the ACD and the EPoA on 18 January 2019. Debra Swan knew Shirley O’Dea as Debra Swan’s mother had lived in a unit at Mill Court. She gave evidence that Shirley O’Dea appeared more physically frail than previously, but she was not in ‘any dementia ward or anything like that.’ She said that she was aware of the importance of the documents and her obligation to ensure that Shirley O’Dea knew what she was signing. 127 Debra Swan was with Shirley O’Dea for less than half an hour. She said she went through the information statement about the ACD with Shirley O’Dea. She said that she did not read it word for word, but she asked Shirley O’Dea questions to ascertain that she understood what she was signing. The ACD contained a statement of opinion which was completed by Debra Swan before she signed it. Debra Swan agreed that the word “he” erroneously appeared twice in this statement. On the basis of her failure to amend the statement of opinion, the trial Judge found that it was unclear if Debra Swan in fact turned her mind to the significance of the document. 128 As to the evidence of David Evans that Shirley O’Dea had the capacity to know and understand the terms of the ACD and the EPoA, the trial Judge observed that these documents do not have the same level of complexity as a will and less is required in terms of a person’s cognitive ability to understand them. A will on the other hand may require the ‘highest degree of mental soundness.’10 129 While accepting that David Evans was an experienced solicitor who has had numerous previous dealings with Shirley O’Dea, the trial Judge considered that his evidence needed to be viewed in the context of the expert medical evidence (discussed in greater detail below) that Shirley O’Dea’s condition would likely have fluctuated from day-to-day. The expert medical evidence 130 Three medical experts gave evidence: Professor Tully Rosenfeld, Dr Alicia Innis, and Dr Sarah Lucas. Their expertise and experience were not challenged. None of the medical experts examined Shirley O’Dea or had the opportunity to make observations of her. Their evidence was as follows. Professor Tully Rosenfeld – Consultant Geriatrician and Physician 131 Professor Rosenfeld provided a preliminary opinion based upon materials he was provided by the appellant. He reached the following conclusion: In my view therefore it is likely that the deceased suffered from mild brain disease and, as indicated in the Aged Care Assessment referred to above, mild cognitive impairment (MCI). MCI not infrequently goes onto progress to dementia overtime (up to 50% will go 10 Crago v McIntyre [1976] 1 NSWLR 729. -- 26 of 66 -- [2026] SASCA 7 Livesey P and David JA 24 onto develop dementia in the years that follow the diagnosis). It is likely that the deceased suffered from mild vascular brain disease. 132 Professor Rosenfeld considered that the presence of brain disease or MCI does not, of itself, preclude testamentary capacity but does indicate the need for care and appropriate discussion about testamentary intention at the time of making a will. 133 Professor Rosenfeld examined the materials supplied by the appellant including an affidavit of Gregory Anderson dated 31 January 2022. On the basis of this material, Professor Rosenfeld opined that Shirley O’Dea understood that she was making a will and the nature, purpose and implications of doing so. He considered that she was able to understand the worth of her estate, at least in general terms, and more likely in greater detail. He noted that in her discussion with her solicitor, Gregory Anderson, she was able to resolve conflicting issues relating to the disposal of her estate and, in doing so, exercised her own judgment about the issues with which she was concerned. 134 Professor Rosenfeld considered that there was no evidence that Shirley O’Dea was influenced in her decision making or suffering from a mental disorder, hallucinations or paranoia at the time of giving instructions to Gregory Anderson, or at the time of signing of her wills. 135 The trial Judge, when assessing the evidence of Professor Rosenfeld, noted that he was proceeding on the basis of the accuracy of affidavit material from Gregory Anderson as to the circumstances in which he took instructions from Shirley O’Dea, including that he took her through the contents of the will, which her Honour found to be ‘problematic’. 136 In his second report dated 14 August 2023, Professor Rosenfeld expanded upon his opinions and reviewed further documents provided to him, including the reports of Dr Innis and Dr Lucas. Professor Rosenfeld considered that Shirley O’Dea was likely suffering delirium associated with her leg ulcers (rather than dementia as opined by Dr Innis). Professor Rosenfield did not resile from his earlier expressed opinion as to Shirley O’Dea’s testamentary capacity. Dr Alicia Innis – Geriatrician 137 Dr Innis is a consultant geriatrician. In her report dated 22 September 2023, she opined that Shirley O’Dea, as of 2018, had short-term memory loss, impaired orientation to time, reduced judgment and a lack of insight. She said that Shirley O’Dea had also demonstrated a reduced capacity for self-care in areas such as personal hygiene, home hygiene and medication management. Dr Innis expressed the view that she would meet the criteria for a clinical diagnosis of dementia. 138 Dr Innis also considered that: Within the four months subsequent to June 2018, there is in my view substantial evidence of Ms O’Dea being confused, having short term memory loss including of people who had -- 27 of 66 -- [2026] SASCA 7 Livesey P and David JA 25 been in her home, disorientation to time, medication timing mismanagement, appointment mismanagement, mismanagement of her wounds and dressings despite instructions otherwise and not safely storing foods. I have previously referenced these. It is my view that it is highly unlikely that these deficits arose suddenly after June 2018. These deficits are consistent with a dementia which had likely evolved over a number of years. I think it is possible that Ms O’Dea was still able to understand the nature and effect of a will as at June 2018. The affidavit of Mr Gregory Anderson suggests that also. (Emphasis added.) 139 Dr Innis agreed with Professor Rosenfeld that Shirley O’Dea’s cognitive function would likely have been variable, and likely worse when she was medically unwell. However, she did not accept his opinion that she was suffering from delirium noting that there was nothing in the community nursing notes to suggest that this was so. 140 Dr Innis also disagreed with Professor Rosenfeld’s opinion that Shirley O’Dea likely had mild vascular brain disease. In her experience, vascular disease tends to be a systemic issue. Dr Innis said that if this was so, Shirley O’Dea would also likely have had significant ischaemic heart disease and significant cerebrovascular disease. While Dr Innis accepted that the nursing notes indicated Shirley O’Dea was not vague and confused all the time, she emphasised that patients with dementia often experience fluctuations in their cognitive abilities. 141 Dr Innis described the MMSE test administered by Dr Nyoni as a screening test which is a very crude and inappropriate task for people with substantial evidence of cognitive decline such as Shirley O’Dea. That is, in the context of suspected cognitive impairment, it has limited utility. She also said that the ACAT assessment report of mild cognitive impairment appeared to be based solely upon the MMSE test score. Further, ACAT staff are not qualified to make cognitive diagnoses. 142 Dr Innis commented upon Professor Rosenfeld’s first report and his conclusions in the following terms: The affidavit of Mr Gregory Anderson suggests that Ms O’Dea had testamentary capacity in that she understood the purpose and effect of a will, she understood the worth of her estate and she appreciated those who could reasonably expect to be a beneficiary. I am unable to explain how Ms O’Dea provided such comprehensive reasoning despite having such significant cognitive impairment around the time of his assessment. Given the extent of Ms O’Dea’s dementia, it is likely that she would be very susceptible to influence. I am unable to comment if this was a factor however. 143 Dr Innis accepted that an individual may have a medical illness that impacts on cognitive function but still have the capacity to execute a will. -- 28 of 66 -- [2026] SASCA 7 Livesey P and David JA 26 Dr Sarah Lucas – Neuropsychologist 144 Dr Lucas is a clinical neuropsychologist specialising in neuropsychological assessment of brain injury, psychiatric conditions and dementia. In her first report dated 9 February 2023, Dr Lucas identified several medical risk factors for cerebrovascular disease which may have been affecting Shirley O’Dea’s cognition. However, she could not exclude the possibility of the early onset of Alzheimer’s disease. Dr Lucas could not be more definite about her diagnosis in the absence of further investigations and information. 145 Dr Lucas had regard to the instructions Shirley O’Dea purportedly gave to Gregory Anderson in early December 2018 but considered there to be a significant concern that she was suggestable to influence at the time she made the December 2018 and January 2019 wills. 146 In her second report dated 23 September 2023, Dr Lucas responded to the report of Professor Rosenfeld. She did not consider that Shirley O’Dea’s difficulties with cognition were explicable by a diagnosis of delirium nor attributable to the effects of sleep deprivation and pain. She thought there was ‘a more insidious onset of cognitive decline given evidence of functional problems in her home between September and December 2018’. 147 In cross-examination, Dr Lucas agreed that she was not qualified to diagnose a medical condition such as dementia or delirium. She said that she was, however, able to express an opinion about whether cognitive issues are consistent with dementia symptoms. She was also able to assess the functional implications of cognitive impairment. Dr Lucas maintained that she had doubts about Shirley O’Dea’s cognitive functioning in late 2018 and early 2019. In particular, she expressed doubt about Shirley O’Dea’s executive functioning. In relation to the MMSE administered by Dr Nyoni, Dr Lucas agreed that it was a fairly normal result for her advanced age but shared Dr Innis’ opinion as to the limited utility of an MMSE when assessing cognitive functioning. 148 Dr Lucas gave evidence that in the absence of a comprehensive cognition assessment, it was not possible to be definitive about Shirley O’Dea’s mental condition. However, she said that there were a number of factors relating to Shirley O’Dea’s cognition as of December 2018 and January 2019 which she described as ‘red flags’ as to her cognitive functioning. 149 The trial Judge preferred the evidence of Dr Innis that Shirley O’Dea was suffering from dementia to the opinion of Professor Rosenfeld that she was suffering from delirium. This was partly due to the fact that Professor Rosenfeld’s opinion was influenced by Gregory Anderson’s affidavit as to the circumstances surrounding the making of the wills, which her Honour ultimately rejected. In any event, as her Honour observed, a diagnosis of delirium made little difference to an assessment of Shirley O’Dea’s testamentary capacity at the relevant times. Professor Rosenfeld and Dr Innis gave evidence that each respective condition would normally cause periods of executive dysfunction. Likewise, it was the -- 29 of 66 -- [2026] SASCA 7 Livesey P and David JA 27 opinion of all three experts that the uncontested diagnoses of mild brain disease and mild cognitive impairment would have adversely impacted Shirley O’Dea’s executive functioning. Her Honour correctly noted that executive functioning involves activities such as planning, decision-making, working memory, mental flexibility, judgment, and reasoning which are all relevant to the issue of testamentary capacity. 150 The trial Judge accepted that Shirley O’Dea’s presentation would likely have fluctuated from day-to-day. Her Honour found that while Shirley O’Dea may well have been able to undertake a range of everyday activities such as conversing with visitors, she lacked the capacity to undertake a number of more complex cognitive tasks. For example, her Honour noted that there was objective evidence that Shirley O’Dea was unable to deal with her financial affairs from late 2017. There was also evidence of her short-term memory loss (for example, as noted by the community nurses) and some of the lay witnesses. On the basis of the expert evidence, particularly the evidence of Dr Innis, the trial Judge found that Shirley O’Dea suffered from dementia at the relevant times and the impact of this condition on her cognitive abilities undermined her testamentary capacity. The trial Judge’s findings 151 As to the February 2018 will, the trial Judge found that the document was duly executed and appeared rational on its face. Her Honour considered that the will was consistent with Shirley O’Dea’s long-held testamentary intentions as to her gifts of farmland to the Catholic Church and the Lanes. Her Honour also found that Shirley O’Dea had read and approved the contents of the February 2018 will as was shown by the handwritten amendments that were initialled by Shirley O’Dea and the witnesses to the signing of the will. 152 As to the December 2018 and January 2019 wills, the trial Judge found the wills were duly executed. 153 In relation to the changes to the gifts of farming land, the trial Judge found that it was the appellant (and not Shirley O’Dea) who initiated making these changes by telephoning Gregory Anderson on 10 August 2018. Her Honour considered that the appellant’s call was not expected by Gregory Anderson, and there was no evidence that Shirley O’Dea had any earlier contact with Gregory Anderson about the changes to the gifts of farmland. Instead, it was this telephone call which prompted Gregory Anderson to make an appointment to see Shirley O’Dea on 23 August 2018. 154 As to the appointment on 23 August 2018, the trial Judge found that Gregory Anderson did not take instructions during this meeting to change Shirley O’Dea’s will. Rather, nothing further occurred until the appellant telephoned Gregory Anderson on 26 November 2018. As a result of this phone call, Gregory Anderson undertook various Land Titles Office searches of Shirley O’Dea’s property and made an appointment to see Shirley O’Dea at her unit on 6 December 2018. -- 30 of 66 -- [2026] SASCA 7 Livesey P and David JA 28 155 The trial Judge found that the first occasion Shirley O’Dea gave Gregory Anderson instructions to gift parcels of her farming land to the appellant was at the meeting on 6 December 2018. Her Honour found that when taking these instructions, Gregory Anderson did not follow the Banks approach (nor undertake the steps he said he did in his affidavit of 31 January 2022). To the contrary, there was no evidence that he questioned Shirley O’Dea about the size and nature of her estate, nor that he sought to have Shirley O’Dea explain the significant change to the disposition of her farmland. Her Honour also considered that the appellant’s attendance at the appointment on 6 December 2018, during which substantial changes were contemplated in his favour and to which he had no obvious claim, ought to have caused Gregory Anderson to satisfy himself that Shirley O’Dea was not subject to undue influence in changing her will in the appellant’s favour. 156 The trial Judge found that following the 6 December 2018 appointment, Gregory Anderson prepared a new will for Shirley O’Dea and sent a draft of the new will to Shirley O’Dea under cover of a letter dated 10 December 2018. The cover letter did not contain any advice about the content of the will. 157 As to Gregory Anderson’s attendance at Shirley O’Dea’s home on 20 December 2018 when he delivered a copy of the will, the trial Judge found that Gregory Anderson did not read through the will with Shirley O’Dea, nor did he take any steps to ensure that it reflected her true intentions and wishes. Instead, Gregory Anderson simply left the will and a stamped self-addressed envelope with Shirley O’Dea to execute as he was ‘pressed for time’. 158 The trial Judge found that it was the appellant who arranged for the execution of the will on 26 December 2018, and the appellant mistakenly used the draft will (sent on 6 December 2018) instead of the copy of the will delivered on 20 December 2018. Her Honour found that there was no evidence that the will was read to Shirley O’Dea on 20 December 2018, nor was there any evidence that she understood and approved the contents of the will before signing it. 159 As to the January 2019 will, the trial Judge rejected the appellant’s evidence concerning the reasons that the will was executed again on 25 January 2019. She rejected the appellant’s evidence that it was at the behest of Shirley O’Dea following concerns raised by the nursing home about its staff acting as witnesses to the signing of legal documents. Her Honour found that the December 2018 will was re-executed because the appellant noticed the ‘draft’ stamp and for that reason he was concerned about the validity of the will. 160 The trial Judge also found there was no evidence that the January 2019 will was read to Shirley O’Dea, or that she understood and approved its contents before signing it. Her Honour found that the appellant flipped the pages ensuring that Shirley O’Dea signed each page and that the date was changed to reflect the fact it was 2019, not 2018, as typed on the will. -- 31 of 66 -- [2026] SASCA 7 Livesey P and David JA 29 161 The trial Judge found that the December 2018 and January 2019 wills were not rational on their face. Her Honour said:11 As the February 2018, December 2018 and January 2019 wills were duly executed the question then arises whether they are rational on their face. The Church contends, relying upon Hayward v Moloney,12 that the December 2018 and January 2019 wills are not given the substantial change to Shirley O’Dea’s longstanding testamentary intentions. A substantial change, of itself, does not indicate that the wills are not rational. In the circumstances of this case however there is no proper explanation of the reasons for the change. There is a serious concern that the beneficiary of those changes, [the appellant], was actively involved in the changes to the extent that he was present when instructions were given and when both wills were executed. I conclude that the wills are not rational on their face. There is no similar issue with the February 2018 will. 162 As to the presumption of testamentary capacity in respect of the December 2018 and January 2019 wills, the trial Judge considered that this had been rebutted, and the appellant bore the onus to establish testamentary capacity. 163 The trial Judge was not satisfied that the appellant (as the party propounding the December 2018 and January 2019 wills) had proved on the balance of probabilities that Shirley O’Dea had testamentary capacity at the time she provided instructions to Gregory Anderson on 6 December 2018, or when the wills were executed in December 2018 and January 2019. Her Honour found that Gregory Anderson did not, at any stage, undertake a proper assessment of Shirley O’Dea’s testamentary capacity. In particular, Shirley O’Dea did not identify all her property when asked to do so in August 2018, and there was no evidence that Gregory Anderson asked Shirley O’Dea to do this again in December 2018. 164 The trial Judge found that there was little, if any, explanation for the change of gift of farmland from the Catholic Church to the appellant. While the trial Judge accepted, in general terms, that Shirley O’Dea was concerned, over a long period of time, about sexual abuse within the Catholic Church, there was no evidence that this affected her view of the Catholic Church to the extent that she decided to exclude the Catholic Church from her will. Her Honour noted that the evidence did not support a finding that this issue was more pressing for Shirley O’Dea in December 2018 or January 2019. Indeed, her Honour noted that, in any event, Shirley O’Dea’s previous wills contained a condition as to the disposition of the proceeds of any future sale of land by the Church. 165 As to Shirley O’Dea’s knowledge and approval of the contents of both wills, the trial Judge observed that given her findings that the appellant had not established that Shirley O’Dea had testamentary capacity at the time of the 11 In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110 at [357]–[359] (McIntyre J). 12 [2022] SASC 79 at [289] (McMillan AJ). -- 32 of 66 -- [2026] SASCA 7 Livesey P and David JA 30 December 2018 and January 2019 wills, the presumption of knowledge and approval did not arise. Notwithstanding this, her Honour indicated that she considered the presumption had been displaced and the appellant bore the onus of establishing that Shirley O’Dea knew and approved of the contents of those wills. The trial Judge found that this was not established for the following reasons: • Gregory Anderson did not read through the December 2018 and January 2019 wills with Shirley O’Dea. Instead, he posted a draft copy of the December 2018 will to Shirley O’Dea. There was no advice in the covering letter as to the contents of the draft will. There was also no evidence that Shirley O’Dea read the draft will after she received it in the post. • Unlike the February 2018 will, Shirley O’Dea did not provide any further instructions to Gregory Anderson following receipt of the draft. • Shirley O’Dea did not note or question that the December 2018 will was marked with the word ‘draft’ before signing it. Nor did she question the obvious drafting error in clause 4 of the December 2018 and January 2019 wills. • Shirley O’Dea had a significant vision impairment casting a doubt as to her ability to read the will. 166 In the absence of evidence that Shirley O’Dea read the will, or had it read to her, the trial Judge was not satisfied that she knew and approved the contents of these wills. 167 Given those findings, the trial Judge pronounced in favour of the will made on 15 February 2018; and against the wills made on 26 December 2018 and 25 January 2019. The grounds of appeal: Observations 168 Before addressing each ground of appeal, it is appropriate to make some observations about the appellant’s approach. As will be seen, the appellant tended to address his criticisms by reference to particular issues in isolation, overlooking the need to address the whole of the evidence and circumstances which were before the trial Judge. In overview, these showed that an elderly woman with increasing physical and cognitive impairments made very radical changes to the testamentary intentions reflected in her many previous wills, particularly the will made on 15 February 2018. On the findings made by the trial Judge, the changes reflected in the wills made on 26 December 2018 and 25 January 2019 were not adequately explained, they benefited the appellant, and they occurred in a context where the appellant maintained an inappropriately close level of involvement in the will-making process. -- 33 of 66 -- [2026] SASCA 7 Livesey P and David JA 31 169 The disquiet arising from these circumstances was by no means quelled by the evidence of the solicitor Gregory Anderson concerning his representation of Shirley O’Dea in connection with events after February 2018, particularly as he inexplicably failed to heed the recommended procedures and advice readily available from authorities such as Ryan v Dalton; Estate of Ryan.13 170 As is explained at the outset to these reasons, the relevant burden of proving the validity of the impugned wills was in this case on the appellant. It is in that setting that there was debate on appeal about the rebuttable presumptions concerning testamentary capacity and, particularly, whether the wills were rational on their face (there being no debate about whether they were duly executed). As will be seen, we agree with the trial Judge that when one had proper regard to the context in which the impugned wills were executed, and which included the radical changes they wrought when compared with earlier, long-held testamentary intentions, it was open to question whether these wills were rational on their face. 171 But, even if that were not so, the circumstances clearly raised doubts about testamentary capacity and about the existence of suspicious circumstances, resulting in the need for the appellant to establish testamentary capacity and knowledge and approval. The appellant could not meet his burden by addressing the issues piecemeal and disengaged from the compelling inferences that arise from a consideration of the clear findings made by the trial Judge, based on the whole of the evidence and circumstances which were before the trial court. Ground 1: The wills were not irrational on their face 172 Under this ground of appeal, the appellant contends that the trial Judge generally misapplied the legal test applicable to the rationality of the wills. The appellant submits that her Honour applied the test concerning ‘suspicious circumstances’ (usually associated with rebutting the presumption of knowledge and approval of the contents of the will) when considering the question of the rationality of the two wills. The appellant relies on the fact that her Honour referred to the reasoning of McMillan AJ in Moloney v Hayward14 in which McMillan AJ had earlier in her judgment referred to the principles regarding suspicious circumstances. 173 We do not agree that the trial Judge erred in her approach to the issue of the rationality of the wills. 174 The appellant (as the party propounding the December 2018 and January 2019 wills) bore the onus of showing that Shirley O’Dea possessed testamentary capacity at the relevant time. A presumption of testamentary capacity arises if a will is duly executed and rational on its face.15 13 [2017] NSWSC 1007 at [107]-[108] (Kunc J). 14 [2022] SASC 79 at [289] (McMillan AJ). 15 Veall v Veall (2015) 46 VR 123 at [202] (Santamaria JA, Beach and Kyrou JJA agreeing); Tobin v Ezekiel (2012) 83 NSWLR 757 at [47] (Meagher JA, Basten and Campbell JJA agreeing). -- 34 of 66 -- [2026] SASCA 7 Livesey P and David JA 32 175 There is no specific legal test enunciated in the authorities on the question of whether a will is rational. It must be decided on a case-by-case basis. In determining whether a will is rational on its face, it is necessary to consider the will itself in the context of all the circumstances of the case, including any past wills evincing a deceased person’s long-held testamentary intentions. As McMillan AJ found in Moloney v Hayward, a will may not be rational on its face in circumstances where the will provides for a radical departure from earlier gifts of substantial land, without explanation, in favour of a beneficiary who has been involved in the preparation of the will. 176 As outlined earlier, the trial Judge found that from 2001 until December 2018, Shirley O’Dea had made substantially the same gifts of farmland to the Catholic Church and to Dr Lane. Contrary to this long-held testamentary intention, the December 2018 and January 2019 wills gifted most of the farmland to the appellant. Her Honour found there was no proper (or cogent) explanation for this radical change. Further, her Honour was satisfied that the appellant participated in the making of the will. After taking into account those two main circumstances, her Honour found the wills were not rational on their face. By reasoning in this way, the trial Judge did not misapply the legal principles on the issue of the rationality of the two wills. 177 In support of his contention that the trial Judge erred by finding that the December 2018 and January 2019 wills were not rational on their face, the appellant also relies on five related submissions. For the following reasons, and contrary to the appellant’s contention, we are satisfied the trial Judge did not err by concluding that the December 2018 and the January 2019 wills were not rational on their face. In rejecting the appellant’s contention under this ground of appeal, it is convenient to specifically address each of the appellant’s submissions in turn. 178 First, the appellant submits that at the time of the execution of the two wills, there was nothing to indicate that Shirley O’Dea was not of sound mind. Rather, the MMSE carried out on 3 December 2018, and the evidence of David Evans, who executed the ACD and EPoA on her behalf on 18 January 2019, suggests the opposite. 179 This submission cannot be sustained having regard to the expert medical evidence and the evidence from the community nurses. The evidence of the MMSE needs to be considered in the context of all the expert evidence and observations from community nursing staff as to Shirley O’Dea’s cognitive decline. In addition, as observed by the trial Judge, the cognitive skills necessary to appoint a power of attorney are significantly less than those required under the Banks test for testamentary capacity. In any event, these matters are not directly relevant to the issue of whether the wills were not rational on their face. 180 Secondly, the appellant submits that a relevant and persuasive factor is that the two wills were executed by Shirley O’Dea in the presence of witnesses who knew her, and who gave evidence that she appeared to understand what was taking -- 35 of 66 -- [2026] SASCA 7 Livesey P and David JA 33 place. However, as to the December 2018 will, Maureen Pisano’s evidence was to the effect that she had no independent recollection that the document she witnessed was in fact a will. Moreover, the trial Judge made an explicit finding that Molly Smallacombe’s evidence was vague and unreliable. In those circumstances, their evidence was of no assistance to the appellant in dispelling any doubt as to Shirley O’Dea’s testamentary capacity. In relation to the January 2019 will, the evidence of the two witnesses was entirely neutral. Again, and in any event, these matters are not directly relevant to the issue of whether the wills were rational on their face. 181 Thirdly, the appellant submits that there was no evidence that Shirley O’Dea suffered from any delusions or disorder of the mind in her choice of beneficiaries. Whether or not this submission is correct, it is not to the point. The circumstances which raised the issue of rationality for consideration, and which the trial Judge ultimately found persuasive, was the substantial change in her testamentary intentions in the December 2018 and January 2019 wills, without explanation, and the appellant’s involvement in the making of the wills. The fact that Shirley O’Dea did not suffer from delusions or a disordered mind did not ameliorate those circumstances. 182 Fourthly, the appellant relies on the statement of principle that a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding, and sanity is to be presumed until the contrary has been shown.16 This submission assumes the very issue the subject of contention, namely the rationality of the wills, and is of no assistance to the appellant. 183 Fifthly, the appellant submits that contrary to the trial Judge’s findings, there was, in fact, an explanation for the change in Shirley O’Dea’s testamentary intentions in respect of the farmland gifted from the Catholic Church to the appellant. As outlined earlier, the appellant gave evidence that Shirley O’Dea told him she wished to gift him the farmland she had formerly left to the Catholic Church because she believed the Catholic Church would likely sell the land and she was concerned that the proceeds would most probably go to general funds in the Catholic Diocese of Adelaide rather than staying in the Riverton/Manoora Parish. The appellant also gave evidence that Shirley O’Dea told him she was disturbed by cases of child sexual abuse that had been publicised around that time within the Catholic Church. 184 In support of this explanation, the appellant relies on the evidence of Father Boog and John Robbins that Shirley O’Dea had expressed her concern about sexual abuse within the Catholic Church. The appellant also relies on Gregory Anderson’s file notes of 7 December 2018 which record her concerns about sexual abuse by Catholic clergy. The appellant submits that this evidence 16 Re Estate of Paul Francis Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 at 706E. -- 36 of 66 -- [2026] SASCA 7 Livesey P and David JA 34 provides a cogent explanation for the change in Shirley O’Dea’s testamentary intentions. 185 In relation to the Lanes and the change to the gift of allotment 407, the appellant submits the Lanes had no moral claim to her bounty. 186 Shirley O’Dea had a very strong devotion to the Catholic Church. Her earlier wills demonstrated her long-held wish that her farmland be gifted to the Catholic Church. The trial Judge found that Shirley O’Dea’s discussions with Father Boog and John Robbins about sexual abuse within the Catholic Church did not change her dedication to the Catholic Church nor her testamentary intention to gift her farmland to the Catholic Church. We are satisfied that there was ample evidence to support this finding. Shirley O’Dea continued to gift farmland to the Catholic Church in various wills after many of her discussions with John Robbins and Father Boog. In addition, Father Boog did not give evidence that Shirley O’Dea was concerned about the Catholic Church selling her land. 187 As to the two file notes prepared by Gregory Anderson dated 7 December 2018 (in relation to the meeting on 6 December 2018), neither version makes any reference to Shirley O’Dea expressing concern about her farmland being sold by the Catholic Church in connection with compensation payments for sexual abuse by clergy. The less detailed version sets out no basis for the change in her testamentary intentions. The more detailed version only refers to concerns about potential sale proceeds from farmland being ‘spent in places other than Riverton’. Furthermore, as outlined earlier, Gregory Anderson conceded in his evidence that he did not recall what Shirley O’Dea said about this topic at this meeting. 188 Moreover, Shirley O’Dea’s earlier wills from 2007 expressly provided that if the Catholic Church sold the gifted farmland, then the proceeds must be used for the construction of a retirement home for priests to be called ‘O’Dea house’, and for no other purpose. This restriction met any purported concern of the Catholic Church selling the farmland gifted to it. 189 As to the change to the gift of farming land from the Lanes to the appellant, while it is to be accepted the Lanes had no moral claim to Shirley O’Dea’s bounty (as for example, if they were related to her), the Lanes were longstanding close friends of Shirley O’Dea. The parcel of land in allotment 407 had been gifted to them consistently over many years and in numerous wills. There was no explanation for the change in her long-held testamentary intentions to leave that farmland to the appellant rather than the Lanes. 190 When considering the issue of rationality, it is necessary to look at the terms of the will, as well as all the circumstances surrounding the making of a will, including the terms of earlier wills as demonstrating previous testamentary intentions. A consideration of this issue is not confined to an analysis of the document itself. In this case, the trial Judge’s finding that the wills were not -- 37 of 66 -- [2026] SASCA 7 Livesey P and David JA 35 rational on their face was grounded in the substantial change in Shirley O’Dea’s long-standing testamentary dispositions, in circumstances where her Honour did not consider that there was a proper explanation for the change. 191 Moreover, the appellant’s significant involvement in the making of the wills when he was a beneficiary was a significant circumstance which informed the nature of the substantial change to her testamentary intentions. There was no error by the trial Judge in taking into account the appellant’s involvement when concluding that the wills were not rational on their face. 192 For those reasons, we are satisfied there was no error by the trial Judge, and we dismiss this ground of appeal. 193 In any event, the trial Judge, after finding that the wills had been duly executed, held that the presumption of testamentary capacity was rebutted by a lack of rationality and a doubt as to her capacity arising from the circumstances surrounding the making of the wills. As the trial Judge noted, even if she was wrong as to her finding that the wills were not rational on their face, her Honour was nonetheless satisfied that the presumption of testamentary capacity had been rebutted by a number of considerations outlined in her judgment.17 194 For those reasons, for this appeal to be successful, the appellant would need to succeed on both appeal grounds 1 and 2. Ground 2: Rebuttal of presumption of testamentary capacity 195 Under this ground of appeal, the appellant’s essential complaint is that the trial Judge erred in finding that the presumption of testamentary capacity had been rebutted. The appellant contends that the factors relied upon by the trial Judge when considered in the context of the whole of the evidence, did not give rise to a doubt as to testamentary capacity. 196 The trial Judge found that the presumption of testamentary capacity was rebutted by a number of factors. Her Honour said: Even if I was wrong to find that the December 2018 and January 2019 wills were not rational, I consider that the presumption as to testamentary capacity in respect of both has been rebutted by doubt due to a number of factors. Specifically: • the radical changes to Shirley O’Dea’s long adhered to testamentary dispositions of her land, the lack of cogent evidence as to the reasons for those changes and the absence of any evidence that Shirley O’Dea weighed the competing claims and made a deliberate choice to change her wills. • Shirley O’Dea’s advanced age of 94 and the fact that she was about to, and in the case of the January 2019 will, had just entered a nursing home. 17 In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110 at [359], [366] (McIntyre J). -- 38 of 66 -- [2026] SASCA 7 Livesey P and David JA 36 • The evidence of the observations in the medical and nursing records and the oral evidence of Jack O’Dea, Dr Lane, Sonja Gangell and Kirsty Ingram including forgetfulness, inability to look after herself, inability to undertake financial tasks. • Shirley O’Dea’s significant vision impairment and absence of evidence that she read the wills or had the wills read to her. • The evidence that, at the time instructions were provided and at the time of execution of the wills Shirley O’Dea was physically unwell including with leg ulcers requiring regular nursing treatment. • The medical evidence that Shirley O’Dea was suffering mild brain disease and mild cognitive impairment. • The lack of evidence about whether Shirley O’Dea had the opportunity to reflect upon her wills and whether she received independent advice. • [The appellant’s] active involvement in the preparation and execution of the two wills which represented a significant change from long held testamentary intentions in his favour. 197 The appellant challenges these circumstances (either independently or collectively) as sufficient to rebut the presumption. It is convenient to address, in turn, the appellant’s submissions as to each of those circumstances, it is necessary to consider the evidence as a whole and none of the matters should be considered in isolation in a piecemeal fashion. The question of whether the presumption of testamentary capacity has been rebutted is a circumstantial inquiry and ‘it is the very essence of a circumstantial case that the items of evidence should not be examined in isolation but must be considered in their totality.’18 198 As will become apparent, we are satisfied on the whole of the evidence that the substantial changes to the gifts of farming land and the involvement of the appellant in the making and execution of both wills as the new beneficiary, combined with the evidence of Shirley O’Dea’s cognitive decline, rebutted any presumption of testamentary capacity. 199 Before proceeding to consider these factors in any further detail, and by reason of the appellant’s written submissions to the effect that the matters relied upon by the trial Judge ‘were not demonstrative of a lack of testamentary capacity’, it is important to reiterate that once the presumption of testamentary capacity is rebutted by matters raising a doubt as to testamentary capacity, the burden falls on the propounder of the wills (the appellant) to establish on the balance of probabilities that the testator or testatrix was of sound disposing mind. There is no requirement on the Catholic Church or Dr Lane to demonstrate a lack of testamentary capacity. 18 R v Ng (2002) 5 VR 257 at [141] (Winneke P, Batt and Eames JJA). -- 39 of 66 -- [2026] SASCA 7 Livesey P and David JA 37 200 With those general principles in mind, we return to consider the factors relied upon by the trial Judge as raising a doubt as to Shirley O’Dea’s testamentary capacity. “Radical” changes 201 The appellant submits that the trial Judge erred by finding that there were radical changes to Shirley O’Dea’s long-held testamentary dispositions of her land in the absence of any cogent explanation for those changes. 202 It is well established that a ‘radical’ change in a testamentary gift is a circumstance that may raise doubt as to testamentary capacity.19 The use of the word ‘radical’ merely denotes that the change in the will must be such as to show that mere proof by way of presumption is insufficient. 203 As outlined earlier, the changes in the December 2018 and January 2019 wills which gifted most of Shirley O’Dea’s farmland to the appellant, in circumstances where previous wills showed her longstanding testamentary intention to gift this farmland to the Catholic Church and the Lanes was a substantial or ‘radical’ change. While it is true that the Catholic Church and the Lanes had no moral claim to her bounty, Shirley O’Dea was a devout Catholic and had a long friendship with the Lanes. She had a long-held a testamentary intention to leave her farmland to both parties. Moreover, the trial Judge found there was no proper explanation as to why Shirley O’Dea would make these changes to her will. Her Honour explicitly rejected the appellant’s contention that Shirley O’Dea decided to exclude the Catholic Church because of her concern about sexual abuse by the clergy and her concern that her farmland would be sold by the Catholic Church. 204 There was a clear evidentiary basis for the trial Judge to find that the changes in the December 2018 and January 2019 wills were ‘radical’ or substantial, in the absence of any cogent explanation for the change. 205 There was no error by the trial Judge. Shirley O’Dea’s age and entry into a nursing home 206 The appellant submits that the mere fact that a person is of advanced age or that they have entered an aged care facility does not necessarily raise a doubt as to his or her testamentary capacity.20 The appellant submits that this factor was of little moment in the face of other unchallenged evidence, including that Shirley O’Dea was able to comprehend and sign her respite agreement in January 2019 and comprehend and sign her permanent residential care agreement in March 2019, as well as the fact that she managed all her own day-to-day financial affairs including her taxation returns, leasing land, writing cheques and 19 Bool v Bool [1941] St R Qd 26 at 39 (Macrossan SPJ); see also Re Estate of Budniak [2015] NSWSC 934 at [372]–[377] (Hallen J). 20 Kantor v Vosahlo [2004] VSCA 235 at [12] (Ormiston JA), citing Boreham v Prince Henry Hospital (1955) 29 ALJ 179; see also Bailey v Bailey (1924) 34 CLR 558 at 572 (Isaacs J). -- 40 of 66 -- [2026] SASCA 7 Livesey P and David JA 38 paying bills. In the context of these broader circumstances, the appellant contends that Shirley O’Dea’s age and entry into a nursing home, individually or together with other considerations did not raise a doubt as to her testamentary capacity. 207 We do not agree. 208 Shirley O’Dea moved into a nursing home on a respite basis in January 2019 following concerns raised by community nurses about her capacity to live independently. The proximity of these concerns about her cognitive decline to the time at which Shirley O’Dea is said to have provided instructions for the preparation of the December 2018 and January 2019 wills is an important consideration in assessing whether a doubt arose as to her testamentary capacity. 209 Furthermore, and contrary to the appellant’s submissions, there was evidence from Jack O’Dea that by mid to late 2017, Shirley O’Dea was struggling with her financial affairs generally, and that she had stopped preparing the accounts for the farm in 2017. The trial Judge accepted this evidence and observed it was consistent with the evidence of Dr Innis that Shirley O’Dea had suffered from dementia for some years prior to 2019. 210 As to the significance of Shirley O’Dea’s advanced age, it is to be accepted that persons who are elderly, and physically infirm, may still possess testamentary capacity. However, in the present case, Shirley O’Dea’s old age did not stand alone as a factor. There was also unchallenged evidence that she suffered from mild cognitive impairment and moved into a nursing home after having been observed to exhibit signs of cognitive decline and the deterioration in her ability for self-care. In those circumstances, the trial Judge did not err by taking into account Shirley O’Dea’s old age and entry into a nursing home as relevant factors on the question of whether the presumption of testamentary capacity had been displaced. Medical evidence as to her cognitive abilities 211 The appellant contends that the trial Judge did not properly consider the evidence of Dr Nyoni, who expressed the opinion that Shirley O’Dea did not suffer from dementia until 2020 (that is, at a time after she provided instructions for, and executed the December 2018 and January 2019 wills). The appellant emphasises that Shirley O’Dea consulted with Dr Nyoni on 29 October 2018 and completed a MMSE at a time proximate to when the wills were executed. Accordingly, the appellant submits this evidence should be given considerable weight when compared with the opinions of medical experts who never assessed Shirley O’Dea when she was alive.21 21 Nicholson v Knaggs [2009] VSC 64 at [39]–[41] (Vickery J). -- 41 of 66 -- [2026] SASCA 7 Livesey P and David JA 39 212 Moreover, and in any event, the appellant emphasises that the fact a person may be suffering from mild brain disease or mild cognitive impairment is not demonstrative of a lack of testamentary capacity.22 213 The appellant submits there was also evidence from other health professionals in late 2018 and early 2019 who did not express any concerns as to her mental capacity or cognitive functioning. 214 It is important to observe (as put by the respondents in their written submissions) that the evidence of Dr Nyoni was confined to: (a) he would have documented concerns about Shirley O’Dea on 20 December 2018 if he had any; and (b) he included a diagnosis of dementia on 22 July 2020. Dr Nyoni did not say that Shirley O’Dea ‘did not suffer dementia until sometime in 2020’. He was not asked when he considered her dementia commenced and he in fact otherwise noted she was suffering from ‘mild cognitive impairment’ on 29 October 2018, consistent with the diagnoses of the experts (arising from either dementia or delirium). 215 Furthermore, neither Dr Nyoni nor any of the other health professionals were asked to assess Shirley O’Dea’s testamentary capacity in December 2018 or on 18 January 2019, or at all. It is not to the point that they did not express concerns about her testamentary capacity or functioning, as they did not assess her capacity. 216 As outlined earlier, the trial Judge heard evidence from three experts as to the issue of Shirley O’Dea’s cognitive ability. Dr Innis’ opinion is not inconsistent with Dr Nyoni’s evidence. Accordingly, the trial Judge did not need to reject Dr Nyoni’s evidence in order to accept Dr Innis’ conclusion because it was never put to Dr Nyoni that his evidence did not support a diagnosis of dementia as of 2018. 217 The evidence of Dr Nyoni must be considered in the context of the whole of the evidence. As outlined earlier, the trial Judge found that Shirley O’Dea’s cognitive impairment (whether caused by dementia or delirium) adversely impacted her executive functioning, and thereby her planning, decision making, working memory, mental flexibility, judgment and reasoning. The trial Judge also found that these affected cognitive abilities were all relevant to testamentary capacity. The trial Judge’s findings in this regard were not challenged on appeal. Shirley O’Dea’s mild brain disease and cognitive impairment rebutted the presumption of testamentary capacity and there was no error by the trial Judge in so finding. Vision impairment and reading of the two wills 218 The appellant submits that there was no evidence that Shirley O’Dea’s vision impairment affected her testamentary capacity. Moreover, there were handwritten 22 Re Estate of Griffith (1995) 217 ALR 284 at 295 (Kirby J); Bailey v Bailey (1924) 34 CLR 558 at 566– 567 (Knox CJ and Starke J). -- 42 of 66 -- [2026] SASCA 7 Livesey P and David JA 40 notations on the 25 January 2019 will, which supported an inference that Shirley O’Dea had read and understood the will. In support of this submission, the appellant also relies on the evidence that she signed cheques, tax returns, financial documents and made various notes including in a diary format and tracked medical appointments. 219 We are satisfied that the trial Judge was correct in considering that the evidence of Shirley O’Dea’s vision impairment, in the context of her advanced age and cognitive impairment, was supportive of a doubt as to the presumption of testamentary capacity to the extent that it raises a doubt as to whether she read and understood the contents of the wills. 220 As to signing her tax returns, Jack O’Dea’s evidence was that from 2017 her involvement was perfunctory, and she simply signed the documents presented to her. While it was common ground that Shirley O’Dea made handwritten notations on the January 2019 will, the evidence did not support a finding that she read the entire will or understood the terms of the will (given the error in clauses 4.1 and 4.2 and Gregory Anderson’s evidence that he did not explain it to her on 20 December 2018). 221 In the circumstances of this case, Shirley O’Dea’s poor vision was a relevant factor for the trial Judge to consider when determining whether the evidence gave rise to a doubt as to the presumption of testamentary capacity. There is nothing to suggest that the trial Judge placed ‘too much weight’ on this matter. Physical impairments do not preclude testamentary capacity 222 In the circumstances of this case, the nature of Shirley O’Dea’s physical impairments including leg ulcers was relevant to her testamentary capacity. Her leg ulcers were the reason that she was initially referred to community nursing in September 2018, and their observations of her cognitive decline occurred while treating her for leg ulcers. In addition, Professor Rosenfeld’s opinion that she was likely suffering from delirium was associated with her leg ulcers. The trial Judge did not find that Shirley O’Dea’s physical impairments of themselves rebutted her testamentary capacity. Medical evidence as to testamentary capacity 223 The appellant submits that the trial Judge erred by having insufficient regard to the evidence of medical professionals and nursing staff who observed or treated Shirley O’Dea at the relevant times and considered her to be cognitively well. In particular, the appellant relies on the following evidence: • Sonya Gangell gave unchallenged evidence that she had seen Shirley O’Dea on 6 December 2018 (the same day Gregory Anderson met with Shirley O’Dea to take instructions for her will) and that she was alert and engaging in conversation well. -- 43 of 66 -- [2026] SASCA 7 Livesey P and David JA 41 • Dr Nyoni met with Shirley O’Dea on 20 December 2018 (the day Gregory Anderson met with Shirley O’Dea about the draft will) and said that she was not anxious, had made decisions in relation to her residential care and was able to describe where she would be spending Christmas Day. He said that if he had any concerns about her mental state, he would have documented them but did not do so. • Molly Smallacombe gave evidence as to her frequent interactions with the Shirley O’Dea between December 2018 to May 2019. • Rebecca Hudson gave evidence as to her lack of concern as to Shirley O’Dea’s mental capacity when she signed a respite agreement on 4 January 2019 and when she signed a home agreement on 7 March 2019. She also said that Shirley O’Dea presented as being ‘switched on’ during her interactions with her in 2018 and 2019 by reading the paper, listening to the local news and participating in nursing home activities. 224 None of the medical and health professionals who saw Shirley O’Dea at the relevant times were specifically asked to assess her testamentary capacity. Again, Dr Nyoni was never asked to make this assessment. Moreover, there was other contemporaneous evidence from nurse staff (outlined earlier) which the trial Judge considered had rebutted the presumption of testamentary capacity. 225 In addition, between October and December 2018, there was uncontested evidence of Shirley O’Dea suffering from a cognitive impairment. As outlined earlier, the expert evidence only differed as to whether the evidence of cognitive impairment was attributable to dementia or delirium (arising in connection with leg ulcers). 226 As to the evidence of Rebecca Hudson and the signing of the respite agreement, as the trial Judge found, the making of a will is task specific, and a very different task to signing a respite agreement. Bearing in mind the different nature of the two exercises, the trial Judge was correct in concluding that the evidence was ‘… of little assistance given she did not give evidence of assessing Shirley O’Dea’s testamentary capacity in any meaningful way’. 227 Ultimately, the matters raised by the appellant must be viewed in the context of all the evidence. Having regard to all the contemporaneous medical and nursing evidence, the trial Judge did not err by finding that the medical evidence (in combination with other factors referred to by her Honour) was a matter which raised a doubt as to the presumption of testamentary capacity. The evidence of the solicitor David Evans 228 The appellant also relies on the evidence of David Evans that Shirley O’Dea was able to execute an ACD and an EPoA on 18 January 2019, a week before signing the 25 January 2019 will. The appellant emphasises that Shirley O’Dea -- 44 of 66 -- [2026] SASCA 7 Livesey P and David JA 42 satisfied her solicitor David Evans that she could understand the effect of these documents, and that she knew and approved the contents of the documents and their nature and effect. 229 The trial Judge gave careful consideration to the evidence of David Evans. Her Honour observed:23 …David Evans’ evidence must be viewed in the context of the medical evidence that Shirley O’Dea’s condition would likely have fluctuated from day-to-day and that even a person with dementia can exercise testamentary capacity with proper assistance. David Evans went through these documents with Shirley O’Dea in a methodical and careful way that was lacking in Gregory Anderson’s approach to the wills. David Evans gave Shirley O’Dea the assistance that she required in order to properly understand and execute the advance care directive and the power of attorney. 230 The trial Judge found David Evans to be an impressive witness, and contrary to the appellant’s submissions, did not reject his evidence. However, her Honour correctly considered that the making of a will is task specific and it is necessary to acknowledge the higher level of cognitive ability required for the making of a will of the complexity of Shirley O’Dea’s will when compared with an ACD or EPoA. Bearing in mind that David Evans did not assess Shirley O’Dea’s testamentary capacity, and the fluctuating nature of her condition, the trial Judge was not in error by finding that this evidence was of limited assistance in assessing her testamentary capacity. The evidence of Jack O’Dea and John Robbins 231 The appellant contends that the trial Judge erred in finding that Shirley O’Dea was unable to deal with her financial affairs from late 2017. Contrary to the appellant’s written submissions, Jack O’Dea did not concede in his evidence that Shirley O’Dea was ‘personally managing the majority of her financial affairs up and to including 2020’. Instead, Jack O’Dea gave evidence that Shirley O’Dea was struggling to utilise her cheque books from the beginning of 2018, and most of the cheques presented to the bank were written for her by other persons. Moreover, the fact that Shirley O’Dea was apparently signing her tax returns until 2020 must be seen in the context of Jack O’Dea’s evidence that he simply sent Shirley O’Dea her tax returns for signing. Shirley O’Dea did not meet with Jack O’Dea to sign tax returns and her signature on the returns was nothing more than perfunctory. 232 The appellant also submits that the trial Judge erred by not accepting the evidence of John Robbins, which was relevant to the question of whether there was any explanation for the change in her gifts of farmland. John Robbins gave evidence of discussions he had with Shirley O’Dea as early as 1993 or 1999 during which she said that she was troubled by the indiscretions of the clergy, and the fact that properties were being sold off to compensate the victims of sexual abuse. He 23 In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110 at [367] (McIntyre J). -- 45 of 66 -- [2026] SASCA 7 Livesey P and David JA 43 gave evidence that Shirley O’Dea said that she would hate to think that a gift to the Catholic Church, would be sold off to pay for someone else’s indiscretions. 233 The trial Judge addressed John Robbins’ evidence on this topic in some detail in her judgment.24 Her Honour observed that despite John Robbins’ evidence of Shirley O’Dea raising these concerns in, or around, 1993–1999, she nevertheless gifted farmland to the Catholic Church in her wills from 2001 until the December 2018 will. 234 In addition, the trial Judge observed that since 2007, Shirley O’Dea included the condition that if the Catholic Church sold the farmland, the proceeds were to be used for the establishment of the ‘O’Dea Home’, a retirement home for priests. This condition addressed any risk of the Catholic Church selling off land and using those funds to make compensation payments to sexual abuse victims. 235 On the basis of this evidence, the trial Judge found that this issue concerning alleged sexual abuse by the clergy of the Catholic Church did not cause Shirley O’Dea ‘to reconsider her will’. Nor did the issue provide a cogent explanation for the change in her testamentary intentions. Furthermore, John Robbins’ evidence provided no explanation for the change in the gift of the farmland (allotment 407) to the Lanes from an absolute one to a life interest with the remainder reverting to the appellant. 236 The trial Judge did not reject John Robbins’ evidence. Her Honour simply afforded the evidence little weight in the context of the other evidence (namely, her earlier wills) and concluded that it did not assist the appellant in ameliorating doubt as to Shirley O’Dea’s testamentary capacity. There was no error. Evidence as to the receipt of independent advice 237 The appellant submits that the trial Judge erred by finding that Shirley O’Dea did not receive independent advice about the changes to the wills. The appellant relies on the following evidence to establish that Shirley O'Dea received independent legal advice: • Shirley O’Dea met with a solicitor, Gregory Anderson, on 23 August 2018, 6 December 2018 and 20 December 2018 to discuss changing her will in relation to her farmland. • During her meeting with Gregory Anderson on 6 December 2018, Shirley O’Dea was able to describe her farmland and what it comprised of. She also knew that she had sufficient money in the bank to leave pecuniary legacies to a list of beneficiaries. The fact that only one section of her farming land (of the four sections she owned) was 24 In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110 at [104]–[109] (McIntyre J). -- 46 of 66 -- [2026] SASCA 7 Livesey P and David JA 44 highlighted by Gregory Anderson during this meeting is irrelevant because he may have only asked her to identify one parcel of land on the diagram at that time. • Shirley O’Dea discussed the changes to the gifts of all her farming land at the meeting on 6 December 2018, as evidenced by the file note. • Gregory Anderson wrote to Shirley O’Dea on 10 December 2018 enclosing an amended draft will referring to the changes she wished to make in respect of clauses 4.1 and 4.2 of the will relating to her farmland. She had an opportunity to reflect on those changes before signing the will. • The appellant submits that Shirley O’Dea was able to articulate her testamentary intentions to her solicitor, as well as her reasons for the changes to her testamentary intentions in respect of the farmland. 238 We do not accept that the trial Judge was in error when finding that Shirley O’Dea did not receive independent legal advice. As outlined earlier, her Honour found that Gregory Anderson’s evidence was unreliable. Gregory Anderson conceded that when he met with Shirley O’Dea on 23 August 2018, he did not take instructions from her to change her will. It follows that he did not give her any advice on that occasion about her will. He also conceded in evidence that he had no independent recollection of his meeting with Shirley O’Dea on 6 December 2018. The trial Judge also found that the appellant was present at the meeting. The appellant’s presence at this meeting means that any advice which may have been given during this meeting cannot be characterised as independent advice. 239 As to the draft will which was posted to Shirley O’Dea on 10 December 2018, the letter which accompanied the draft will did not contain any advice as to the terms or content of the will. 240 While Gregory Anderson attended on Shirley O’Dea at her unit on 20 December 2018, and delivered a copy of the will for execution, he did not read through the will with her or arrange for the execution of the will. 241 The file notes of Gregory Anderson’s attendance on Shirley O’Dea on 6 December 2018 do not record any provision of advice. More significantly, there was no evidence by way of any file note or otherwise that Shirley O’Dea instructed Gregory Anderson that she wished to change her will in relation to the gifts of farmland to the Catholic Church because of her concerns about ‘past abuses by some of [the Church’s] clergy’. As outlined earlier, to the extent that Gregory Anderson’s oral evidence contradicted his file notes, her Honour preferred his oral evidence. -- 47 of 66 -- [2026] SASCA 7 Livesey P and David JA 45 242 The evidence referred to by the trial Judge supported a finding that Gregory Anderson did not provide Shirley O’Dea with independent advice as to her will. The trial Judge was correct to find that Gregory Anderson’s dealings with Shirley O’Dea in relation to the making of her wills fell well short of performing the duties he owed to her. Accordingly, Gregory Anderson’s evidence does not provide a basis to find that Shirly O’Dea was provided with independent legal advice so as to allay any doubts arising as to testamentary capacity. The appellant’s involvement 243 The appellant submits that his ‘involvement’ in the making and executing of the wills are not demonstrative of a lack of testamentary capacity. The appellant reiterates that contrary to the trial Judge’s findings, Shirley O’Dea had the benefit of independent legal advice. 244 However, for reasons already outlined, Shirley O’Dea did not have the benefit of independent legal advice, and the substantial involvement of the appellant in the making of the wills is a factor raising a doubt displacing the presumption of testamentary capacity. The appellant’s involvement was unchallenged on appeal, and includes: • Initiating the changes to the will by telephoning Gregory Anderson on 10 August 2018 to say that Shirley O’Dea had told him that she wanted to leave her farmland to him rather than to the Catholic Church. It was not until the appellant contacted Gregory Anderson by telephone on 10 August 2018 that any suggestion was made that Shirley O’Dea wished to change the gifts of her farmland in favour of the appellant. There was no suggestion of such a change when Gregory Anderson met with Shirley O’Dea to take instructions about her will on 31 May 2018, following which he prepared a will, which did not change the gifts of her farmland. • Initiating telephone contact on 26 November 2018 with Gregory Anderson, resulting in the appointment on 6 December 2018. • Attending the appointment on 6 December 2018, at which substantial changes to the will were contemplated in his favour noting that the only reason for the change of the absolute gift of farmland to the Lanes was that Gregory Anderson suggested this change at the meeting at which the appellant was also present. He had never made this suggestion when taking instructions on three earlier occasions. • Arranging for execution of the ‘draft’ will document on 26 December 2018. It was the appellant who picked up Shirley O’Dea on 26 December 2018 to take her to lunch at his house and then drove her back to the nursing home where he arranged for her to sign each page of the document, which had been stamped ‘draft’ as he ‘flipped’ the pages. -- 48 of 66 -- [2026] SASCA 7 Livesey P and David JA 46 • Arranging for re-execution of the will on 25 January 2019, due to concerns about the validity of the will marked ‘draft’. Again, the pages were merely ‘flipped’, and the contents of the will were not read to or by Shirley O’Dea. • Taking possession of the will after execution and arranging for it to be posted back to Mellor Olsson Solicitors. • The appellant stood to receive a substantial benefit of valuable farmland from the changes to the will. 245 The involvement of the appellant, in circumstances where he stood to gain from the substantial changes in her testamentary intentions, supported the existence of a doubt as to Shirley O’Dea’s testamentary capacity. 246 Ultimately, we are satisfied that the trial Judge was correct to find that in addition to the lack of rationality, there was a doubt as to Shirley O’Dea’s testamentary capacity on the basis of the matters outlined, as well as the medical evidence, (noting that there is no challenge on this appeal to the conclusions of the medical experts or, indeed, to any of the primary facts upon which the experts based their opinions). 247 We dismiss this ground of appeal. Ground 3: Other evidence of testamentary capacity 248 Under this ground of appeal, the appellant challenges the trial Judge’s conclusion that the appellant failed to establish on the balance of probabilities that Shirley O’Dea had testamentary capacity at the relevant times. 249 To the extent that the appellant contends that the Catholic Church and Dr Lane bore the onus of establishing a lack of testamentary capacity, it is important to reiterate that once the presumption of testamentary capacity is displaced by circumstances which raise a doubt, the onus falls on the propounder of the wills (the appellant) to show that Shirley O’Dea was of ‘sound disposing mind’.25 250 As Ormiston JA observed in Kantor v Vosahlo:26 …From time to time it may be sufficient to show by the calling of appropriate evidence that the will was duly executed and that it is rational on its face… On the other hand, if circumstances are shown to have existed which throw doubt on the capacity of a testator or testatrix validly to have executed a will, whether raised by evidence of old age, mental infirmity, suspicion of undue influence or of fraud, or the like, then that prima facie case of the propounder will be held not to be sufficient to justify a grant to the propounder. As the High Court said in Worth v Clasohm: 25 Tobin v Ezekiel (2012) 83 NSWLR 757 at [45] (Meagher JA). 26 [2004] VSCA 235 at [3] (Ormiston JA). -- 49 of 66 -- [2026] SASCA 7 Livesey P and David JA 47 “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.” (citations omitted) 251 There is an overlap in the evidence relevant to raising a doubt, on the one hand, and proving testamentary capacity on the other. Presumably, it is for this reason that the appellant relies again on the same matters put under Ground 2 to contend that the trial Judge erred in her ultimate finding that the appellant had not established that Shirley O’Dea possessed testamentary capacity at the relevant times. 252 For the reasons already outlined, there was no error by the trial Judge in finding that the appellant had not proved Shirley O’Dea’s capacity by reason of those factors which also raised a doubt as to his capacity. The trial Judge was correct to find there was a lack of cogent evidence as to the reasons for the substantial changes to the wills in respect of the farming land and that Shirley O’Dea did not receive independent legal advice or receive an opportunity to reflect upon her wills. The combination of these matters, and the expert medical evidence and the nursing staff’s observations of her cognitive decline, provided an evidentiary basis for the trial Judge to conclude the appellant had not proved Shirley O’Dea’s testamentary capacity. 253 The appellant also relies on other evidence over and above those matters raised in relation to rebutting the presumption which he submits established Shirley O’Dea’s testamentary capacity. These matters are addressed below. The unchallenged medical evidence 254 The appellant relies on the following medical evidence: • On 29 October 2018, Dr. Nyoni administered a MMSE and Shirley O’Dea scored 24 indicting mild cognitive impairment was present. • On 3 December 2018, an ACAT Assessment was performed in relation to Shirley O’Dea. The ACAT assessment noted only a “mild cognitive impairment”. 255 The appellant submits there was nothing in the evidence given by Dr Nyoni which suggested that Shirley O’Dea lacked testamentary capacity in December 2018 or January 2019. As outlined earlier, Dr Innis and Dr Lucas both gave evidence that the MMSE was of limited utility in assessing capacity. Again, Dr Nyoni did not assess Shirley O’Dea’s testamentary capacity, and his evidence needs to be considered in the context of the expert medical evidence and the evidence of community nurses which was unchallenged at trial. -- 50 of 66 -- [2026] SASCA 7 Livesey P and David JA 48 Other evidence 256 The appellant also relies on the following unchallenged evidence, which in combination with other evidence, he submits established Shirley O’Dea’s testamentary capacity: • On 4 January 2019, Shirley O’Dea had been assessed as competent to sign the Aged Care agreement for the purposes of entry into her aged care facility. • On 18 January 2019, there was the evidence from David Evans that she signed an ACD and an EPOA. • Shirley O’Dea signed the 25 January 2019 will in the presence of two witnesses. Both witnesses gave evidence that there was nothing said which indicted that Shirley O’Dea did not know what she was signing or that she was confused generally about what was taking place. • The evidence that Shirley O’Dea had concerns regarding the sexual abuse scandals within the Catholic Church. • Shirley O’Dea’s expressions of fondness towards the appellant as early as 2014, and the fact there was no evidence that she did not intend to benefit the appellant. 257 Most of these submissions are in effect a repetition of the matters raised in respect of Ground 2. Again, for the above reasons, the fact that Shirley O’Dea was able to sign a respite agreement on 4 January 2019 does not prove testamentary capacity. In addition, and again, the fact that she was able to execute the ACD and EPoA on 18 January 2019, for the reasons already on its own, or in combination with other matters, did not establish her testamentary capacity. 258 As to the appellant’s submissions relating to Shirley O’Dea’s concerns about the Catholic Church, as already explained, the evidence established that she continued to make wills gifting farmland to the Catholic Church after discussing these concerns with Father Boog and John Robbins but in some of her subsequent wills included a condition regarding the ‘O’Dea Home’ to guard against the Catholic Church selling off the land and using it outside the Riverton parish. 259 There is no evidence that she raised this issue with anyone between making the February 2018 will (which included changes up to May 2018) and making the December 2018 will. Neither of Gregory Anderson’s two versions of his file note of his meeting with Shirley O’Dea on 6 December 2018 (but dated 7 December 2018) refer to concerns about alleged abuse within the Catholic Church causing her to change her will. He also conceded he had no independent recollection of this meeting. -- 51 of 66 -- [2026] SASCA 7 Livesey P and David JA 49 260 As to Shirley O’Dea’s fondness for the appellant, there was evidence that she ‘spoke fondly about everyone’ and that her affection for the appellant was not qualitatively different from the fondness she held for many other people, such as the Lanes, the Robbins and the O’Deas. 261 Standing back and considering the evidence as a whole, we are satisfied that the evidence supported the trial Judge’s ultimate finding that Shirley O’Dea lacked testamentary capacity at the relevant times. Shirley O’Dea was 94 years of age at the time of giving instructions in relation to the December 2018 and January 2019 wills, and at the time of signing those wills. The medical experts gave unchallenged evidence that she was suffering from mild cognitive impairment causing fluctuating mental functioning and executive dysfunction. Her solicitor, Gregory Anderson undertook no capacity testing of her. In addition, the following matters militated against a finding of testamentary capacity: • Shirley O’Dea’s inability to identify all of her property on 6 December 2018. • The suggestibility Shirley O’Dea demonstrated by changing the gift of land to the Lanes at the instigation of Gregory Anderson. • The lack of explanation as to the change of the substantial gifts of farmland from the Catholic Church to the appellant. • Shirley O’Dea’s preparedness to execute a will marked “draft” (in circumstances where she had been a prolific will-maker over the years). • The wills were relatively complex. They concerned a significant amount of farmland, and the change of an absolute gift of the farmland in favour of the Lanes to a mere life interest was also not straightforward. Gregory Anderson agreed that he provided no explanation to Shirley O’Dea as to the value of that life interest. 262 For those reasons, we are satisfied that there was no error by the trial Judge in finding that the appellant had not established, on the balance of probabilities, that Shirley O’Dea had testamentary capacity at the relevant times. 263 We dismiss this ground of appeal. Ground 4: Objective evidence of knowledge and approval of the two wills 264 The appellant complains that the trial Judge erred by finding that the presumption of knowledge and approval had been rebutted and that there was no positive evidence that Shirley O’Dea knew of and approved of the contents of the wills. -- 52 of 66 -- [2026] SASCA 7 Livesey P and David JA 50 265 In Tobin v Ezekiel, Meagher JA explained the law in respect to knowledge and approval as follows:27 Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator … Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document. (citations omitted) 266 As outlined earlier, the trial Judge found that the presumption of knowledge and approval had been rebutted for similar reasons as to the basis upon which the presumption as to testamentary capacity was rebutted. The factors which resulted in her Honour’s finding as to testamentary capacity are also matters that are relevant to the question of knowledge and approval. The fact that the trial Judge did not reiterate these circumstances does not mean her Honour did not take them properly into account. 267 The trial Judge also concluded that the appellant had not established that Shirley O’Dea knew and approved the contents of the wills. 268 The appellant contends that there were no circumstances to displace the presumption of knowledge and approval. More particularly, he submits: • the fact that clause 4.2 of the wills referred to allotment 407 being held in remainder after the death of the Lanes ‘subject [to] the same trusts as are detailed in clause 4.1 of my will’ should be construed so that the word ‘trusts’ in clause 4.2 refers to the ‘trust’ in the chapeau of clause 4. Consequently, the trial Judge was wrong to find that there was a significant drafting error in the wills. • Shirley O’Dea was afforded an opportunity for ‘reflection’ and independent advice in respect of both wills. She was sent a draft document of the will after meeting with Gregory Anderson on 6 December 2018. She was then given a further opportunity to discuss the changes to the will with Gregory Anderson on 20 December 2018. • Gregory Anderson discussed the contents of both wills with Shirley O’Dea on 23 August 2018, 6 December 2018 and 20 December 2018, as reflected in his file notes. • Gregory Anderson left the will with Shirley O’Dea on 20 December 2018, after reading over it again with her. This provided her with the opportunity to reflect upon the changes. 27 (2012) 83 NSWLR 757 at [46] (Meagher JA). -- 53 of 66 -- [2026] SASCA 7 Livesey P and David JA 51 • Prior to the re-execution of the will on 25 January 2019, there was unchallenged evidence that Shirley O’Dea had made some minor pen alterations to the will. She corrected a typographical error to the spelling of the name of Father “Boag” to “Boog”. She also included a reference to the township Balaklava for various beneficiaries. Moreover, she increased an amount of a minor legacy to Dr Nyoni from $500 to $1,000. In all other respects, she left the two wills unchanged. (Emphasis added) 269 The appellant contends that the only inference that can reasonably be drawn from all these circumstances is that Shirley O’Dea had knowledge of, and approved the contents of both wills. It is his submission that there were no suspicious circumstances to rebut the presumption of knowledge and approval, and the evidence in any event established Shirley O’Dea’s knowledge and approval of the contents of both wills. 270 Upon our review of the whole of the evidence, we are satisfied that there was no error by the trial Judge in finding that the presumption of knowledge and approval was rebutted and that the appellant (as the propounder of both wills) had not proved on the balance of probabilities that Shirley O’Dea knew and approved the contents of both wills. 271 The trial Judge was correct to find that in this case, the matters which rebutted the presumption of testamentary capacity also rebutted the presumption of knowledge and approval. That is so for the following reasons. 272 First, as outlined earlier, the wills contained a radical or substantial departure from previous wills in relation to her farmland. 273 Secondly, there was also unchallenged expert medical evidence from all three experts that Shirley O’Dea was suffering from mild cognitive impairment which adversely affected her executive functioning (as summarised earlier). In the opinion of Dr Innis, she likely suffered from dementia for several years prior to 2019. 274 Thirdly, the wills were complex in that they introduced a life interest in farmland with a reversion to the appellant. Shirley O’Dea’s bounty also included large tracts of farming land. 275 Fourthly, the trial Judge found, correctly, that Shirley O’Dea did not receive independent advice due to the failings of Gregory Anderson. The evidence upon which she reached that finding is set out earlier. Her Honour did not accept the evidence of Gregory Anderson that he read over the will with Shirley O’Dea on 20 December 2018 but simply left it with her so that she could organise for its execution. -- 54 of 66 -- [2026] SASCA 7 Livesey P and David JA 52 276 Fifthly, as to the appellant’s submissions relating to the reference to a ‘trust’ in clause 4.2, Gregory Anderson agreed in evidence that the inclusion of the term was ‘meaningless’ and that he had ‘…overlooked the fact that there was reference in that will to the trust’. The fact that Gregory Anderson did not understand clauses 4.1 and 4.2 of the wills means that it is unlikely Shirley O’Dea could realistically understand those clauses, and therefore, the will. 277 Sixthly, the trial Judge found, correctly, for the reasons outlined earlier, that the appellant instigated the changes to the December 2018 will and the January 2019 will of which he was a major beneficiary. He was also substantially involved in the making and execution of both wills. Significantly, the appellant was present at the meeting on 6 December 2018 where it is to be inferred instructions were purportedly given for the two wills. 278 For those reasons, there was no error by the trial Judge in finding that suspicious circumstances were established which rebutted the presumption of knowledge and approval. Was it proved that Shirley O’Dea knew and approved of the contents of both wills? 279 The appellant bore the onus of establishing that Shirley O’Dea knew and approved of the contents of the wills. As Santamaria JA observed in Veall v Veall:28 Once suspicious circumstances are established, it is then for the propounder to dispel that suspicion. What evidence will be sufficient to allay the court’s suspicion will necessarily depend on the circumstances supporting the suspicion; the proof required to allay “suspicious circumstances” will depend upon what it was about the circumstances that made them suspicious. For instance, where a person who stands to gain a benefit under the will participated in its production and execution, it is said that special vigilance is required. (citations omitted) 280 Given the appellant’s involvement in the preparation of the will, this was a case where ‘special vigilance was required’. 281 The appellant emphasises the ‘independent advice’ provided by Gregory Anderson, and his file notes of the meetings on 23 August 2018, 6 December 2018 and 20 December 2018. For the reasons set out earlier, the evidence (including the file notes) did not prove that Shirley O’Dea had knowledge of and approved the contents of the wills propounded by the appellant. 282 Nor do the handwritten amendments on the January 2019 will support an inference that she had read the entire will. As set out earlier, this is because the will signed by Shirley O’Dea in December 2019 was in fact marked ‘draft’ which supports an inference that she did not read, or have read to her, this will. Further, 28 (2015) 46 VR 123 at [172] (Santamaria JA). -- 55 of 66 -- [2026] SASCA 7 Livesey P and David JA 53 the handwritten amendments appear on the second and third page of the will and relate only to cash legacies. This needs to be seen in the context of the evidence that Shirley O’Dea was prone in later years with making minor amendments to cash legacies. 283 Bearing in mind Shirley O’Dea’s advanced age, impaired cognitive condition, vision impairment, lack of any advice about the substantial changes to her testamentary disposition, the failure of Gregory Anderson to explain to her the terms of the will and that no-one observed her read the will, the trial Judge was correct to find that the appellant had not established Shirley O’Dea’s knowledge and approval of the content of both wills. 284 We dismiss this ground of appeal. Ground 5: The evidence of Gregory Anderson and John Robbins 285 Under this ground of appeal, the appellant complains that the trial Judge erred in her assessment of the evidence of Gregory Anderson and John Robbins on matters relevant to testamentary capacity and knowledge and approval. The appellant relies on five main submissions in support of this contention. We are satisfied for the following reasons (by reference to each of the appellant’s submissions) that there was no error by the trial Judge in her assessment of either witness. 286 First, the appellant submits that the trial Judge equated the failings of Gregory Anderson with the existence of a lack of testamentary capacity on the part of Shirley O’Dea. We do not accept the trial Judge approached his evidence in this erroneous manner. The shortcomings of Gregory Anderson’s practice as a solicitor in relation to the making of both wills was such that it could not support any affirmative findings as to Shirley O’Dea’s testamentary capacity and knowledge and approval of the two wills. This was particularly so in the absence of Gregory Anderson having organised for Shirley O’Dea’s cognitive capacity to be medically assessed and in light of her Honour’s finding that Gregory Anderson did not read over the will or explain the contents to her, at all, on 20 December 2018 (or earlier). 287 Secondly, the appellant submits that the trial Judge assessed critical parts of the evidence of Gregory Anderson and John Robbins in isolation from other independent evidence which supported their evidence on relevant topics. This submission is not borne out by the judgment or evidence. It is to be remembered that Gregory Anderson provided an affidavit dated 31 January 2022 which stated that he saw Shirley O’Dea alone on 6 December 2018, but recanted from that position in evidence, and conceded that the appellant was also present. He described this as ‘inappropriate’. Gregory Anderson also conceded in evidence that he had no independent recollection of his meeting with Shirley O’Dea on 6 December 2018 separate from his two sparse and contradictory file notes dated 7 December 2018. On the basis of this evidence, it was appropriate for her Honour to approach all his evidence with caution. -- 56 of 66 -- [2026] SASCA 7 Livesey P and David JA 54 288 As to the evidence of Mr Robbins about Shirley O’Dea’s apparent concerns with the Catholic Church, this evidence provides no explanation for the change in testamentary intention in relation to her farmland. For the reasons already outlined, there was no reliable evidence that these concerns about sexual abuse by the clergy caused Shirley O’Dea to wish to change her will in mid-2018. 289 Thirdly, the appellant submits that the evidence of Gregory Anderson as to Shirley O’Dea’s mental capacity was supported by other evidence such as: • The evidence given by Dr Nyoni as to his consultation with her on 20 December 2018 and her previous solicitor, David Evans as to the events on 18 January 2019 and her capacity to execute an ACD and EPoA. • The evidence given by John Robbins as to his discussions with Shirley O’Dea about her concerns, including the prosecution of Archbishop Wilson and that she had discussed matters with Father Boog about sexual abuse within the Catholic Church; and the objective contemporaneous notes by Gregory Anderson. • That there was no evidence that Shirley O’Dea did not understand what the two wills said or that they did not reflect her wishes: she never said that to anyone. • The change in the major beneficiary was documented by Gregory Anderson and there was no finding that the file note was a fabrication or concoction. • The evidence given by the witnesses to the two wills and the evidence of the nurses with the day-to-day care of Shirley O’Dea to the effect that she appeared fine and not in noticeable decline. 290 Again, and for the reasons already outlined, the evidence of Dr Nyoni and David Evans did not ultimately provide any strong or clear support for a positive finding as to testamentary capacity. There was no error in the trial Judge’s approach to this evidence. Again, there was no evidence that Shirley O’Dea’s concerns about sexual abuse in the Catholic Church caused her to wish to change her will. It is not to the point that there was no evidence that Shirley O’Dea did not understand what the two wills said or that they did not reflect her wishes – the fact remained that there was no evidence that she read, understood and approved the contents of the wills as no one (including her solicitor) took her through its contents witnessed her doing so, or could attest to her doing so. Further, for the reasons set out earlier, the whole of the evidence of the nurses and the witnesses to the wills did not support a positive finding as to testamentary capacity. Finally, in the face of the evidence and findings that the appellant instigated the changes to the will which resulted in him being a major beneficiary, and his involvement in the making of the wills, the fact there was a file note (which was not a fabrication -- 57 of 66 -- [2026] SASCA 7 Livesey P and David JA 55 or concoction) recording the change did not assist the appellant’s case. This is especially so given the sparse nature of the file note and in circumstances where Gregory Anderson has no independent recollection of the meeting. 291 Fourthly, the appellant relies on Shirley O’Dea’s handwritten corrections to the January 2019 will and submits that it is to be inferred that she read and understood the will. We reject that submission for the reasons already outlined. While it is to be accepted that the notations on the January 2019 will were made by Shirley O’Dea, for the reasons outlined earlier she did not know and approve of the contents of the will. The statement by the trial Judge that she did not know who made the handwritten notations (when it was common ground at trial that they were made by Shirley O’Dea) did not otherwise detract from this finding. 292 Fifthly, the appellant submits that there were many days between Shirley O’Dea’s execution of the January 2019 will, and her death in October 2020, and there is no evidence that she subsequently sought to change or revoke the will, except in February 2020 in relation to the minor legacies. The force of these matters needs to be viewed in the context of the trial Judge’s findings that the wills were not read over to her, and she did not understand their content. There would be no need to try to change a will she had not read and did not properly understand. 293 Sixthly, the appellant submits the evidence of David Evans that Shirley O’Dea had the capacity to complete an ACD and EPoA on 18 January 2019 supports a positive finding as to her testamentary capacity on 25 January 2019. For the reasons already outlined, we do not accept this submission as there is a qualitative difference between the capacity required for completing an EPOA on the one hand, with the capacity to provide instructions for, and execute a will (particularly one with some complexity as in the present case) on the other. 294 For those reasons, we are satisfied there was no error in the trial Judge’s treatment of the evidence of Gregory Anderson and John Robbins. 295 We dismiss this ground of appeal. The costs appeals 296 Following judgment and orders pronouncing in favour of the February 2018 will, and against the December 2018 and January 2019 wills, the trial Judge addressed the parties’ various applications for costs. 297 The applicant executor sought an order that his costs be paid on an indemnity basis from the estate. Her Honour made this order by consent. 298 The first respondent (the appellant in this Court) sought an order that his costs be paid out of his estate. The second and third respondents (the Catholic Church and Dr Lane) sought orders that their costs be paid on an indemnity basis, and by the first respondent (the appellant). -- 58 of 66 -- [2026] SASCA 7 Livesey P and David JA 56 299 The trial Judge did not fully accede to either of these applications. Her Honour ordered that the appellant bear his own costs; and that the Catholic Church and Dr Lane have their costs on an indemnity basis, but paid out of the estate. 300 In her reasons for making these costs orders, the trial Judge commenced by setting out the principles governing costs in probate matters, by reference to the summary provided by Kourakis CJ in Roche v Roche (No 2).29 This included reference to the general rule that costs follow the event, but with an acknowledgment that there are some well-recognised exceptions which may arise in probate matters. 301 In addressing the parties’ submissions in relation to costs, the trial Judge made reference to the offers that the Catholic Church and Dr Lane had made in an attempt to resolve the proceedings, as well as their criticisms of the appellant’s evidence and conduct. Noting that the appellant had not initiated the proceedings, her Honour was not satisfied that it was unreasonable for the appellant to continue with the proceedings despite the offers that had been made. Further, whilst acknowledging that aspects of the appellant’s evidence and conduct were unsatisfactory, and that he was ultimately unsuccessful in the issues he contested, her Honour accepted that his case was ‘not without some merit’. 302 In exercising her broad discretion as to costs, the trial Judge declined to order that the appellant pay the costs of the Catholic Church or Dr Lane. Her Honour considered that the most appropriate course in the circumstances was that those costs be paid out of the estate, but that the appellant bear his own costs. As mentioned earlier, her Honour made orders to that effect. 303 Both the appellant and the Catholic Church seek this Court’s leave to appeal from these costs orders. The appellant seeks to do so on grounds which challenge the trial Judge’s application of the exceptions to the general rule that costs follow the event in probate matters. The Catholic Church seeks to do so on grounds which focus upon a challenge to the trial Judge’s approach to the offers it made to resolve the proceedings. 304 It is well-recognised that in determining whether it is appropriate to grant leave to appeal, the Court has regard to the inter-related considerations of whether the impugned decision is attended by sufficient doubt to warrant its reconsideration on appeal, whether the decision raises an issue of general principle or importance, and whether allowing the decision to stand would work a substantial injustice. It is also well-recognised that the Court should be slow to grant leave to appeal in matters of mere practice and procedure, including costs. 305 Whilst the parties’ respective appeals purport to raise issues of principle, they are in reality mere challenges to the trial Judge’s application of accepted principles. It does not appear that the trial Judge made any error of principle. Nor does it 29 [2017] SASC 75 at [5]–[18]. -- 59 of 66 -- [2026] SASCA 7 Livesey P and David JA 57 appear that there is any clear basis for impugning her Honour’s application of the relevant principles. Bearing in mind the broad discretion reposed in her Honour on the issue of costs, neither of the proposed appeals have reasonable prospects of success. 306 In the circumstances, leave to appeal the costs orders made by the trial Judge should be refused. Orders: 1. The appeal is dismissed. 2. Applications for leave to appeal the costs orders made by the trial Judge should be refused. 3. Notice of Alternative Contention is dismissed. 4. Appellant to pay the respondent’s costs of the appeal on a standard basis. 5. No order as to costs on the Notice of Alternative Contention. 6. No order as to costs on the application for leave to appeal the trial Judge’s costs orders. -- 60 of 66 -- [2026] SASCA 7 S Doyle JA 58 307 S DOYLE JA: I agree with the joint reasons of Livesey P and David JA, and would join with their Honours in dismissing the appeal. 308 The only qualification to my agreement with their Honours’ reasons is in relation to Ground 1. I wish to make some observations in relation to the issue arising under that ground, namely whether the trial judge erred in finding that there was no presumption of testamentary capacity by reason that the wills propounded by the appellant were not ‘rational on their face’. In my view, it is unnecessary to determine this ground and, for the reasons that follow, I would refrain from doing so. 309 There is clear authority for the existence of a presumption of testamentary capacity in circumstances where the proponent of a will demonstrates that it is rational on its face.30 Rationality may thus be understood as a requirement of, or pre-condition to, the presumption of testamentary capacity. 310 However, as Livesey P and David JA explain, beyond this basic statement, there has been little authoritative consideration of what rationality in this context involves, and how it is to be determined. 311 The starting point in addressing this issue is an understanding of the role of rationality in determining the onus of proof in a case where testamentary capacity arises for determination. Its somewhat nuanced role was summarised by Bond JA in Greer v Greer:31 The following propositions may be advanced concerning the onus of proof where the Court is considering whether an impugned instrument is to be regarded as the true will of a testator. First, the onus of proving that an instrument is the true will of the testator lies on the party propounding it and, if the onus is not discharged, the Court is bound to pronounce against the instrument: Bailey v Bailey (1924) 34 CLR 558 per Isaacs J at 570; Bull v Fulton (1942) 66 CLR 295 per Williams J at 343. The onus continues during the whole case and the question must be determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey at 570. Second, a presumption of testamentary capacity arises if the proponent of a will demonstrates a duly executed will that is rational on its face: Timbury v Coffee (1941) 66 CLR 277 per Dixon J at 283; Frizzo v Frizzo [2011] QCA 308 per Muir JA (with whom McMurdo P and White JA agreed) at [24]. If the presumption is not displaced, testamentary capacity need not be further addressed because its existence will be presumed. Third, the presumption may be displaced if evidence establishes that there is ‘a doubt’ as to the existence of testamentary capacity which requires resolution by the tribunal of fact: 30 Timbury v Coffee (1941) 66 CLR 277 at 283 (Dixon J); Re Estate of Griffith (1995) 217 ALR 284 at 295 (Kirby P); Frizzo v Frizzo [2011] QCA 308 at [24] (Muir JA, McMurdo P and White JA agreeing); Tobin v Ezekiel (2012) 83 NSWLR 757 at [45] (Meagher JA, Basten and Campbell JJA agreeing); Veall v Veall (2015) 46 VR 123 at [202] (Santamaria JA, Beach and Kyrou JJA agreeing); Greer v Greer [2021] QCA 143 at [41] (Bond JA, Sofronoff P and Wilson J agreeing); Moloney v Hayward [2022] SASC 79 at [288] (McMillan AJ). 31 Greer v Greer [2021] QCA 143 at [39]-[43] (Bond JA, Sofronoff P and Wilson J agreeing). -- 61 of 66 -- [2026] SASCA 7 S Doyle JA 59 Worth v Clasohm (1952) 86 CLR 439 per Dixon CJ, Webb and Kitto JJ at 453; Frizzo v Frizzo at [24]. Fourth, once the presumption of testamentary capacity has been displaced, the Court is thrown back on the first proposition: Timbury v Coffee at 283; Worth v Clasohm at 453; Frizzo v Frizzo at [24]. The decision of the Court must be against validity unless the proponent of the will has discharged the onus to establish affirmatively that the testator had testamentary capacity at the time the will was executed: Bull v Fulton at 343. 312 As to the meaning of rationality in this context, I consider that a will should be treated as rational on its face if its provisions appear to have some foundation in logic or reason, having regard to not only the terms of the will as a whole, but also a basic understanding of the nature and extent of the testator’s estate, the existence and nature of the potential claims upon that estate, and the expected wishes of the testator. 313 It may be accepted that the inquiry will focus upon the terms of the will, and include the identification of any irrationality that might be evident from any illogicality, absurdity, inconsistency or error that is apparent from the document itself. However, I do not think that the inquiry is necessarily confined to irrationality in this narrow sense. 314 Indeed, the notion of rationality that I have described inherently calls for at least some consideration of matters arising from the surrounding circumstances, including not only the nature and extent of the testator’s estate, and the existence and nature of any potential claims upon the estate, but also the expected wishes of the testator. This last matter may itself include consideration of any earlier expressions of testamentary intention (for example, in any previous will or wills), and may be particularly relevant where the evidence reveals a departure from a previously settled or long-standing testamentary intention. A significant or radical change from a previously settled or long-standing testamentary intention may, in the absence of any apparent explanation, be indicative of irrationality. 315 This broader conception of what may be encompassed within consideration of whether a will is rational on its face is consistent with the approach taken in several first instance decisions which have addressed the issue.32 316 It may be contrasted with the narrower approach suggested by Mann J, of the High Court of England and Wales, in Schrader v Schrader:33 It is accepted by both sides that the court should start from a presumption of capacity if the will is rational on its face, and if it is then then burden is thrown on the challenging party 32 For example, Jones v Jones [2012] QSC 113 at [12]-[13] (Martin J); Vukotic v Vukotic (2013) 12 ASTLR 238 at [109]-[113] (McMillan J); Brown v Guss [2014] VSC 251 at [347]-[348] (McMillan J); Moloney v Hayward [2022] SASC 79 at [288]-[289] (McMillan AJ); Diedler v Borowiec (No 2) [2023] WASC 396 at [19]-[20] (Whitby J). 33 Schrader v Schrader [2013] EWHC 466 (Ch) at [75]-[79] (Mann J). -- 62 of 66 -- [2026] SASCA 7 S Doyle JA 60 to raise a real doubt as to capacity, in which case the court will then need to investigate the whole position on the basis of all the evidence. … I do not think that this case turns on presumptions as a starting point, because I have heard a lot of evidence and, presumption or not, I have to consider it all in the round, which I shall do. However, I will deal with the presumption briefly. If the starting point is the will then I consider the presumption of capacity would apply. There is nothing irrational in the will on its face. It is worded in intelligible English, and the gifts make grammatical sense and legal sense. There is no irrational inconsistency – indeed, no inconsistency at all. Miss McDonnell sought to say that it was irrational on its face because there was no record of any reasons for changing the testamentary dispositions over the 1990 will, that the value of the gift to Nick was disproportionate to his contributions to the house, the disinheriting of Bill was inexplicable, its effect would be to have two brothers living cheek by jowl in circumstances in which the testatrix would have known they did not get on, the house would be expensive to maintain, and Bill had a known interest in having the house. These are not factors which demonstrate irrationality on the face of the will. They are circumstances which might be said to go to its rationality in its context. That is different, albeit relevant to an overall conclusion. The presumption provides a starting point without which a registry could probably not operate – one could not expect applicants for probate to produce positive evidence of capacity to accompany every application. It also works if there is no particular reason to challenge a will. But it is confined to looking at the will itself. It is a working tool. It should not be taken to go farther than necessary. An inquiry as to rationality in context is a legitimate inquiry, but it has nothing to do with an initial presumption. In my view the will is rational on its face. If there were no other evidence then capacity would be established. However, there is a lot of other evidence, and by the time it has all been considered the presumption has faded away into the background. The question for me is whether capacity is established on that evidence, the burden being on the claimant. 317 In my view, confining the inquiry in any rigid or strict way to matters arising on the face of the will involves too narrow an approach to the issue of rationality. A broader or more flexible approach is not only consistent with the authorities in this country to which I have referred, but also consistent with the operation of rationality as a pre-condition to a presumption of testamentary capacity, being a concept which undoubtedly has regard to the broader surrounding circumstances. 318 That said, there is some force in Mann J’s emphasis upon the role of the inquiry into rationality, and any resulting presumption, in an overall determination of testamentary capacity. 319 Put differently, I do not think that the threshold requirement of rationality is intended to be an onerous or demanding requirement. In operating merely as a pre-condition to a presumption of testamentary capacity, I do not think that it calls for more than a relatively broad-brush or rudimentary consideration of the terms of the will and the other matters I have mentioned. In particular, whilst a basic understanding of the broader range of matters I have mentioned may be relevant, I do not think that the requirement of rationality calls for any detailed analysis or assessment of the evidence in relation to these matters. Further, and in any event, in a case where there is significant evidence in relation to the issue of testamentary -- 63 of 66 -- [2026] SASCA 7 S Doyle JA 61 capacity, particularly where that evidence is sufficient to displace any presumption which might otherwise arise, there will, in any event, be little or no utility in separately considering the issue of rationality in the sense I have described. 320 By way of illustration, it may be noticed that in Greer v Greer, the trial judge was faced with a will that referred only adversely to one of the testator’s five children, did not mention another of the testator’s children, included a gift to one child’s spouse which seemed ‘odd’, and appointed as executor another child with whom the testator had almost no relationship at all. Her Honour was not inclined to accept that the will was rational on its face, dismissing attempts to explain these apparently irrational aspects of the will as ‘straying well into contentious evidence and … a long way from the description ‘rational on its face’ in Frizzo.34 In the Court of Appeal, their Honours did not consider it necessary to determine the issue of rationality, given that the evidence at trial plainly demonstrated that there was doubt about testamentary capacity, thereby displacing any presumption of testamentary capacity, and leaving it for the appellant proponent of the will to establish testamentary capacity.35 321 Similarly, in Carr v Homersham,36 Basten JA acknowledged that in some cases it may be appropriate to follow the shifting evidentiary onus when considering the issue of testamentary capacity.37 However, his Honour cautioned against too technical or complex an approach where it is clear that the evidence raises an issue which needs to be resolved. After setting out the principles governing proof of testamentary capacity, his Honour explained:38 There is a ready temptation to reformulate these propositions in the language of presumptions and shifting burdens, and by reference to burdens of adducing evidence and burdens of proof. However, such complexity is unlikely to be helpful and may distract from a determination of what is in substance a purely factual issue, the resolution of which will turn on the nature of the particular matters raised, and by whom. To speak of their being a ‘doubt’ as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. … 322 This is consistent with the approach taken in other cases where the court has moved straight to consideration of whether the proponent of the challenged will has established testamentary capacity, without devoting any significant attention to the shifting evidentiary onus. References to rationality in these cases are generally to a broader concept of rationality, relevant to the ultimate issue of testamentary capacity rather than the existence of a presumption. References to 34 Greer v Greer [2021] QCA 143 at [64] (referring to the trial reasons of Dalton J). 35 Greer v Greer [2021] QCA 143 at [70] (Bond JA, Sofronoff P and Wilson J agreeing). 36 Carr v Homersham (2018) 97 NSWLR 328. 37 Carr v Homersham (2018) 97 NSWLR 328 at [41] (Basten JA, Leeming JA agreeing). 38 Carr v Homersham (2018) 97 NSWLR 328 at [46]-[47] (Basten JA, Leeming JA agreeing). -- 64 of 66 -- [2026] SASCA 7 S Doyle JA 62 rationality in that context plainly encompass consideration of not only the provisions of the will, but also the other matters I have mentioned (including the existence of, and explanation for, any departure from the expected wishes of the testator).39 323 In the present case, as explained in the joint reasons, the December 2018 and January 2019 wills involved a radical departure from the long-standing testamentary wishes of the testator, as evidenced in a series of earlier wills. The nature and significance of the apparent changes in the testator’s testamentary wishes were such as to require some explanation for them to be treated as rational. That was particularly so in circumstances where the changes were favourable to the appellant, and he was involved in making those changes. 324 The difficulty in addressing rationality in the present case arose from the fact that there was a contest in the evidence as to whether there was any explanation for these changes. On the appellant’s case, there were explanations which supported the rationality of the changes, as outlined in the joint reasons. The respondents, however, challenged this evidence, and maintained that there was no explanation for the changes. 325 There being some evidence of potential explanations for the changes, one approach would have been to accept that the will was rational on its face, with a resulting presumption of testamentary capacity. Alternatively, and consistently with the approach taken at first instance in Greer v Greer, the judge might have proceeded on the basis that it was not appropriate to stray into any assessment of the contentious evidence necessary to establish rationality, with the result that there was no basis for a finding of rationality and the resulting presumption of testamentary capacity. The judge, however, took a third approach. After considering the evidence proffered by way of explanation for the changes, her Honour rejected it as not providing any ‘proper explanation’ for these changes, leaving a will which was irrational on its face, with the result that there was no presumption of testamentary capacity. 326 In my view, courts should be slow to embark upon the resolution of contested issues of fact in order to determine whether a will is rational on its face. That reluctance is justified by the nature of the issue to be determined, being merely a step in ascertaining where the evidentiary onus lies. It may be accepted that the mere assertion of, or speculation as to, an explanation for a radical change in testamentary intentions will not ordinarily suffice to establish that a will is rational on its face. However, if there is some basis in the evidence for thinking that an apparently significant or radical change has a rational explanation, then a court should ordinarily proceed on the basis that the will is rational on its face, with a presumption of testamentary capacity (unless and until it is displaced by evidence 39 For example, Worth v Clasohm (1952) 86 CLR 439 at 452 (Dixon CJ, Webb and Kitto JJ); Re Estate of Griffith (1995) 217 ALR 284 at 296-301 (Kirby P); Roche v Roche [2017] SASC 8 at [30]-[31] (Kourakis CJ). -- 65 of 66 -- [2026] SASCA 7 S Doyle JA 63 of a doubt as to that matter). It will not ordinarily be necessary or appropriate to determine whether there is a ‘proper’ basis for the change, where that may turn upon contested evidence as to the basis, or a close assessment of the reasonableness of that basis. In my view, this approach is consistent with the fairly rudimentary nature of the inquiry into rationality that I have described. 327 In the present case there was some evidence from the appellant and others that appeared to provide an explanation or basis for the changes in the testator’s wishes. There were difficulties with this evidence, and the judge ultimately rejected this evidence. However, I am inclined to think that it would have been preferable had the judge accepted that this evidence was sufficient for the purposes of determining whether a presumption of testamentary capacity arose, rather than embarking upon a resolution of contentious evidence for this purpose. 328 All of that said, as Livesey P and David JA have explained, whether or not the December 2018 and January 2019 wills were rational on their face was not ultimately determinative. Even if testamentary capacity ought to have been presumed, there was an ample basis for concluding that the presumption had been displaced, and hence that the appellant, as the proponent of the relevant wills, was required to prove testamentary capacity. And, for the reasons given, the trial judge correctly held that the appellant did not discharge that onus. 329 In the circumstances, I do not consider it necessary to determine Ground 1 and would refrain from doing so. However, like Livesey P and David JA, I would dismiss the appeal. -- 66 of 66 --