PETER FRANCIS O’DEA v JAMES VINCENT MCINERNEY [2024] SASC 110

Applicant: PETER FRANCIS O’DEA Counsel: MR M TAYLOR - Solicitor: CAMATTA LEMPENS First Respondent: JAMES VINCENT MCINERNEY Counsel: MS L GAVRANICH WITH MS M DANBY - Solicitor: DONLAN LAWYERS Second Respondent: CATHOLIC CHURCH ENDOWMENT SOCIETY INCORPORATED Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: RANDLE & TAYLOR Third Respondent: DR HAROLD LANE Counsel: MR J CUDMORE - Solicitor: CCK LAWYERS Hearing Date/s: 04/10/2023, 09/10/2023, 16/10/2023, 01/02/2024 File No/s: CIV-21-006442 B SUPREME COURT OF SOUTH AUSTRALIA (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. In the Estate of O'DEA (DECEASED) O’DEA v MCINERNEY & ORS [2024] SASC 110 Judgment of the Honourable Justice McIntyre 22 August 2024 SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY - PRESUMPTION AND EVIDENCE OF DUE EXECUTION SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS The applicant, Peter Francis O’Dea applied to this Court to determine which, if any, of four wills of his relation Ms Shirley Margaret O’Dea should be admitted to probate. These wills are dated 25 January 2019, 26 December 2018, 15 February 2018 and 30 March 2016. Ms O’Dea died in October 2020 at the age of 96. On the face of the documents, each will complies with s 8 of the Wills Act 1936 (SA). They were all prepared by a solicitor experienced in drafting wills. They all bear the signature of Ms O’Dea and two witnesses. However, the applicant who is the executor in each of the four wills was uncertain as to which of the wills was the last valid will of Ms O’Dea due to a number of circumstances including: • Concerns about Ms O’Dea’s capacity arising from information from her General Practitioner, an email from a community health nurse to the GP and an ACAT assessment. • The fact that there had been a significant change to the December 2018 and January 2019 wills in favour of the first respondent compared to Ms O’Dea’s previous wills. • Whether Ms O’Dea had knowledge of the contents of the January 2019 will when it was executed. -- 1 of 99 -- • Conversations that had apparently occurred between the first respondent and Ms O’Dea in August 2018; and • Conversations that the applicant had with the first respondent in 2015 and on 5 July 2020. The applicant takes no position as to which, if any, of the four wills should be admitted. The first respondent James Vincent McInerney seeks that the 25 January 2019 will or, in the alternative, the 26 December 2018 will, be admitted to probate. The second respondent, the Catholic Church Endowment Society Incorporated, and third respondent, Dr Harold Lane, contend that Ms O’Dea did not have testamentary capacity at the time of the execution of the 25 January 2019 will or the 26 December 2018 will, and that the 15 February 2018 will should be admitted to probate. Nobody contends that the will incorrectly dated 30 March 2016, but executed on 30 March 2017, should be admitted to probate. The evidence established that this document did not represent the testamentary intentions of Ms O’Dea as communicated to her solicitor. Ms O’Dea’s estate was substantial. The main asset comprised six parcels of farmland around Riverton South Australia. The first respondent is the major beneficiary of the farmland in the January 2019 and December 2018 wills. The second respondent is the major beneficiary of the farmland in the earlier two wills. The third respondent is to receive a bequest of land under the earlier two wills, but only a life interest in that same land in the later two wills which will then revert to the first respondent. The applicant and his brother have the same entitlement to land under each of the wills. HELD: 1. There is evidence of due execution of the February 2018, December 2018, and January 2019 wills. 2. The January 2019 and December 2018 wills are not rational and, in any event, the presumption as to testamentary capacity has been rebutted by doubt in relation to each. 3. The first respondent has not discharged the burden of proving testamentary capacity in relation to the January 2019 and December 2018 wills. 4. Further, the presumption of knowledge and approval has also been rebutted and the first respondent has not produced affirmative evidence to establish that Ms O’Dea knew and approved of the contents of the January 2019 and December 2018 wills. 5. The presumption of testamentary capacity has not been rebutted in relation to the February 2018 will nor has the presumption that Ms O’Dea knew and approved of the contents of that will. 6. The February 2018 will is to be admitted to probate. Evidence Act 1929 (SA) s 34C; Wills Act 1936 (SA) s 8, referred to. Banks v Goodfellow (1870) LR 5 QB 549; Roche v Roche [2017] SASC 8; Thomas v Nash 107 SASR 309; Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; Veall v Veall [2015] VSCA 60; Bull v Fulton (1942) 66 CLR 295; Saunders v The Public Trustee [2015] WASCA 203; Moloney v Hayward & Ors [2022] SASC 79; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Tobin v Ezekiel [2012] NSWCA 285; Briginshaw v Briginshaw (1938) 60 CLR 336; Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275; Fradgley v Pocklington (No 2) [2011] QSC 355 at [28]; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007; Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197; Van den Heuvel v Tucker (2003) 85 SASR 512; Crago v McIntyre [1976] 1 NSWLR 729, considered. -- 2 of 99 -- In the Estate of O'DEA (DECEASED) O’DEA v MCINERNEY & ORS [2024] SASC 110 Civil: Trial 1 McINTYRE J: The applicant, Peter Francis O’Dea, (‘Jack O’Dea’) applied to this Court to determine which, if any, of a number of wills of his relation Ms Shirley Margaret O’Dea (‘Shirley O’Dea’) should be admitted to probate. There are four testamentary documents in issue. These are as follows:1 • 25 January 2019 (‘January 2019 will’). • 26 December 2018 (‘December 2018 will’). • 15 February 2018 (‘February 2018 will’). • 30 March 2016 (‘March 2017 will’). 2 Jack O’Dea is the named executor in each of the four wills that are the subject of these proceedings. He is also a beneficiary in each will. His entitlement is the same in each. The first respondent, James Vincent McInerney, (‘Jim McInerney’) is the major beneficiary of the January 2019 and December 2018 wills. The second respondent, Catholic Church Endowment Society Inc, (‘the Church’) is the major beneficiary of the February 2018 and March 2017 wills. The third respondent, Dr Harold Lane (‘Dr Lane’) is to receive a bequest of land under the February 2018 and March 2017 wills but only a life interest in the same land under the January 2019 and December 2018 wills. Upon the death of Dr Lane, the land reverts to Jim McInerney. 3 For the reasons that I now deliver: • I am not satisfied that Shirley O’Dea had testamentary capacity at the time she provided instructions for and executed the January 2019 will or the December 2018 will. I declare both invalid. • I am satisfied that the February 2018 will should be admitted to probate. • I will hear the parties as to the form of the orders. Background 4 Shirley O’Dea was born on 10 September 1924 and died on 5 October 2020. She was 96 years of age. She was single and had no children. 5 Shirley O’Dea lived her entire life in the mid-North of South Australia. She was born and raised in Hamley Bridge. Between 2007 to 2011 she lived in 1 It is uncontentious that the date on this will is incorrect and ought to be 30 March 2017. -- 3 of 99 -- [2024] SASC 110 McIntyre J 2 Riverton and, between 2011 and 2014 she lived in a house in Balaklava. In 2014 Shirley O’Dea moved into an independent living unit at Mill Court in Balaklava in 2014. She moved into the adjacent Balaklava Nursing Home in January 2019 where she remained until her death. 6 Shirley O’Dea came from a farming family. She had three sisters who predeceased her. She was particularly close to her sister Phyllis O’Dea who she lived with until Phyllis O’Dea’s death in 2009. Shirley O’Dea was passionate about her family and about farming. She was a devout Catholic. Shirley O’Dea was also greatly interested in horse racing and, in particular, the Balaklava Racing Club. Shirley O’Dea, and her sister Phyllis O’Dea (“the O’Dea sisters”), regularly attended race meetings at Balaklava. The O’Dea sisters sponsored a race for prize money in the name of the O’Dea Family, 7 At the time of her death, Shirley O’Dea owned farmland around Riverton South Australia that she inherited from her family. Her estate is substantial. It was valued at approximately $3,855,000 as at the date of her death. This comprised: • Six parcels of farming land. Section 405, 431, 480, 270, 375 and 407 in the Hundred of Alma valued at $3,480,000. The land has increased in value and is now valued at approximately $6,250,000.2 • Bank accounts with balances of approximately $25,000; and • Residential accommodation bond with the Balaklava Aged Care Community Homes of $350,000. 8 In addition, there is lease income for some of the farmland which is being received and held in trust by Jack O’Dea as executor. 9 Shirley O’Dea made many wills over the course of her life, frequently changing pecuniary legacies to various beneficiaries. The bequest of the farming land remained largely unchanged from 2001 until the December 2018 will. The disposition of the land in the propounded wills is as follows: • March 2017 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane3 was the devisee of section 407. • February 2018 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane was the devisee of section 407. 2 Exhibit R2 59. 3 Dr Lane was the devisee with his late wife Mrs Peggy Lane in all four wills. For simplicity I will refer to this bequest as his alone. -- 4 of 99 -- [2024] SASC 110 McIntyre J 3 • December 2018 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney. • January 2019 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney. • The balance of the farming land was left jointly to Jack O’Dea and his brother Anthony O’Dea (“the O’Dea brothers”), in each of the four wills. 10 On the face of the documents, each will complies with s 8 of the Wills Act 1936 (SA) (‘the Act’). They were all prepared by a solicitor experienced in drafting wills. They all bear the signature of Shirley O’Dea and two witnesses. Where a will is duly executed and complies with s 8 of the Act, two legal presumptions arise. First, that the deceased possessed the necessary testamentary capacity to execute the will; and second, that the testator had knowledge of, and approved, the contents of the will. Both presumptions are rebuttable. 11 Jack O’Dea filed this application saying that he found himself in a situation of doubt or difficulty as to which of the various testamentary documents was Shirley O’Dea’s last will and testament. His affidavit of 17 June 20214 sets out the various wills of which he was aware and also the steps that he had taken to locate Shirley O’Dea’s last will. He also outlined the basis of his doubts.5 In summary these were in his later affidavit: • Concerns about Shirley O’Dea’s capacity arising from information from her General Practitioner Dr Nyoni, an email from a community health nurse to Dr Nyoni and an ACAT assessment; • The fact that there had been a significant change to the December 2018 and January 2019 wills in favour of Jim McInerney compared to Shirley O’Dea’s previous wills; • Whether Shirley O’Dea had knowledge of the contents of the January 2019 will when it was executed; • Conversations that had apparently occurred between Jim McInerney and Shirley O’Dea in August 2018; and • Conversations that Jack O’Dea had with Jim McInerney in 2015 and on 5 July 2020. 4 Exhibit A 6. 5 Exhibit A 7 [20] – [45]. -- 5 of 99 -- [2024] SASC 110 McIntyre J 4 Legal principles 12 There is little dispute between the parties as to the relevant legal principles. 13 A will may only be admitted to probate if it is proved that, at the time of its execution, the testator had testamentary capacity. The traditionally accepted test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow (‘Banks’):6 It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties- that no insane 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. 14 The Banks test has four essential components:7 1. The testator must understand the nature of the act of making a will and its effect. 2. The testator must understand the nature of the property they are disposing of. 3. The testator must understand and appreciate the nature of the claims to their property by those who will be excluded by the will. 4. The testator should have no disorder of the mind that poisons their affections, perverts their sense of what is right or prevents the exercise of their natural faculties. It is not necessary that mental illness be present. Rather a broad range of cognitive, emotional, and mental dysfunctions might be relevant in assessing capacity. It is important to note that:8 A testator may have testamentary capacity even if his or her cognitive function is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for the functioning. However, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary. It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes. 6 (1870) LR 5 QB 549 at [565] (‘Banks’). 7 Roche v Roche [2017] SASC 8 (‘Roche’). 8 Thomas v. Nash (2010) 107 SASR 309 [71]. -- 6 of 99 -- [2024] SASC 110 McIntyre J 5 … A radical departure from long adhered to testamentary intention may also support an inference of incapacity at least in the absence of an adequate explanation.9 15 Where a doubt arises as to the testamentary capacity of a testator, the evidential onus of proving capacity lies with the propounder of the will.10 Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased’s mental state did not influence the will.11 The relevant time at which the existence of capacity is necessary is the time when the testator made the will, not years or decades earlier.12 Evidence of earlier or later events will only be relevant to the extent that they are capable of supporting inferences as to the capacity of the testator at the relevant time. The question of whether a person had testamentary capacity at the time of making a will is a legal rather than a medical question.13 The question must therefore be determined by the Court not by experts. Nonetheless the determination of the legal question can, and often will, be greatly assisted by the evidence of medical experts.14 Further, lay witnesses, including solicitors, are often in a position to provide probative evidence for determining testamentary capacity.15 Testamentary capacity is always a question of fact. 16 It must also be proved that the testator knew and approved the contents of the will at the time it was executed so that it can be said that the testator comprehended the effect of what she was doing and so that it can be said that the will reflects the real intentions and the true will of the testator. If testamentary capacity is proved, due execution of the will raises a presumption that the testator knew and approved the contents of that will at the time of execution. The presumption can be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the true intentions of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved the contents of the will.16 17 A number of circumstances have been identified which may create a well- grounded suspicion or doubt as to whether a will expresses the true intentions of the testator including: 17 1. A radical change in long adhered to testamentary dispositions of the testator. 9 Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [372]–[377] (‘Budniak’). 10 Veall v Veall [2015] VSCA 60 (‘Veall’). 11 Bull v Fulton (1942) 66 CLR 295 (‘Bull’). 12 Saunders v The Public Trustee [2015] WASCA 203 (‘Saunders’). 13 Saunders at [200]. 14 Moloney v Hayward & Ors [2022] SASC 79 at [276] (‘Moloney’). 15 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (‘Zorbas’). 16 Tobin v Ezekiel [2012] NSWCA 285 (‘Tobin’). 17 Budniak. -- 7 of 99 -- [2024] SASC 110 McIntyre J 6 2. The complexity of the will or the estate being disposed of. 3. The mental acuity or sophistication of the testator. 4. The exclusion of persons naturally having a claim on the testator. 5. Whether there has been an opportunity for reflection and independent advice regarding the terms of the will. 18 The propounder of the will carries the legal onus of proof as to testamentary capacity, knowledge, and approval. The shifting of the evidentiary burden in the context of the presumptions does not indicate a reversal of the ultimate burden of proof.18 The standard of proof is the balance of probabilities in accordance with Briginshaw v Briginshaw.19 The parties’ respective positions 19 Jim McInerney is critical of Jack O’Dea for bringing these proceedings. Jack O’Dea found himself uncertain as to which of the wills is the last valid will of the deceased. His reasons for being uncertain are well founded given the circumstances. He has no interest in any particular will as his entitlement under each is the same. It was entirely consistent with the duties imposed upon executors that Jack O’Dea sought the assistance of the Court in determining the validity of the wills. Jack O’Dea does not propose any particular will. 20 Jim McInerney propounds the January 2019 will and, failing that, the December 2018 will as Shirley O’Dea’s last will and testament.20 21 The Church and Dr Lane propound the February 2018 will as Shirley O’Dea’s last will and testament. 22 Given the issues with the March 2017 will that have come to light as a result of these proceedings, no one contends that this will represents Shirley O’Dea’s last will and testament. It does not, on any view, represent her testamentary intentions on that occasion. 23 To resolve these issues, it is necessary to consider the evidence concerning several topics including Shirley O’Dea’s previous wills, her relationship with the various beneficiaries, the circumstances in which each of the wills was prepared and executed and Shirley O’Dea’s circumstances throughout. Hearing 24 The taking of evidence in this matter occurred from 4 October 2023 up to and including 20 October 2023. The parties tendered a large volume of materials. Jack O’Dea and Dr Lane gave evidence but called no other witnesses. 18 Veall. 19 (1938) 60 CLR 336 (‘Briginshaw’). 20 Tobin at [44]-[53]; Veall at [166]-[179]. -- 8 of 99 -- [2024] SASC 110 McIntyre J 7 Jim McInerney gave evidence and called a number of witnesses. The Church also called a number of witnesses. At the conclusion of the hearing, all parties filed written submissions which were supplemented by oral submissions on 1 February 2024. Witnesses 25 The lay witnesses largely gave their evidence-in-chief by affidavit. Some affidavits were redacted following rulings on objections. Some witnesses supplemented their affidavit evidence with oral evidence both in chief and under cross-examination. 26 Jim McInerney called a number of witnesses as follows: • Long term friends and acquaintances of Shirley O’Dea: Annette Elizabeth Barker, Michael John Schilling, Father Brian Joseph Ahern, Rosemary Kathleen Galton, Cathryn Mary Blackwell, John Beeton Robbins, Lorena Torres, Kirsty Corinne Ingram, Christian Charles Hudson. • Raymond Noel McCracken, who had known Shirley O’Dea for over 15 years and witnessed the will signed on 25 January 2019; • Rebecca Louise Durdin, who did not know Shirley O’Dea but who witnessed the will signed on 25 January 2019; • Debra Paul Swan, a Justice of the Peace who was a witness to Shirley O’Dea signing an advanced care directive and enduring power of attorney on 18 January 2019; • Two nurses at Mill Court, Maureen Fay Pisano and Molly Christine Smallacombe, who were witnesses to the will signed on 26 December 2019; • Two solicitors who acted for Shirley O’Dea in relation to her testamentary affairs, David Luke Evans and Gregory Charles Anderson; • Laura Jane Sullivan, Gregory Anderson’s personal assistant; • Mark Vincent McInerney, Jim McInerney’s son; • Julie-Ann Christie, a nurse at Mill Court who witnessed the respite agreement signed by Shirley O’Dea on 4 January 2019; and • Rebecca Mary Hudson, the CEO of Mill Court. -- 9 of 99 -- [2024] SASC 110 McIntyre J 8 In addition, Jim McInerney tendered two affidavits. The first was from his wife, Margaret Kaye McInerney sworn on 13 July 2023,21 who was not required to be cross examined. The second was an affidavit of Maureen Roberts, an employee of Country Home Services, who helped Shirley O’Dea by driving her to appointments from 2018 to March 2020. That affidavit was sworn on 13 July 2023 admitted under s 34C of the Evidence Act (SA) 1929.22 27 The Church called the following witnesses; • Dr Langton Nyoni, Shirley O’Dea’s general practitioner; • Ian Wedding, who leased farming property from Shirley O’Dea; • Suzanne McDonald, and Sonja Suzanne Gangell, community nurses who attended Shirley O’Dea; • Anthony O’Dea, Jack O’Dea’s brother; • Father Mark Sexton, Father James Boog and Father David Thoroughgood, all of whom were priests who knew Shirley O’Dea; and • Naya Fisher and Leo Redden, who both worked at a business in Riverton. They were witnesses to a 2011 will and saw Shirley O’Dea in connection with her farming business and insurance on a regular basis. 28 In addition to these witnesses, a number of expert witnesses were called as to Shirley O’Dea’s likely testamentary capacity at the material times. None of these experts had the opportunity to assess Shirley O’Dea. Their opinions were based upon the lay evidence and medical records tendered in evidence. Their reports and evidence were received de bene esse. I will deal with the reasons for this and my ruling later in these reasons. These witnesses were: • Adjunct Professor Tully Rosenfeld a consultant geriatrician and physician who prepared two reports for the first respondent dated 20 February 2023 and 14 August 2023;23 • Dr Alicia Innis a geriatrician who prepared a report for the second respondent dated 22 September 2023;24 and 21 Exhibit R1 32. 22 Exhibit R1 114. 23 Exhibit R1 95; Exhibit R1 96. 24 Exhibit R2 101. -- 10 of 99 -- [2024] SASC 110 McIntyre J 9 • Dr Sara Lucas a clinical neuropsychologist engaged by the second respondent who provided two reports dated 9 February 2023 and 23 September 2023.25 29 Finally, some expert valuation evidence was tendered by consent.26 There is no controversy concerning this evidence. A solicitor’s obligation 30 The task of taking instructions for a will is an onerous one particularly in the case of an elderly person such as Shirley O’Dea. Likewise, the preparation and execution of wills is a task of critical importance for any legal practitioner. The duties imposed on solicitors are summarised by McMillan AJ in Hayward v Moloney:27 [279] A solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving the instructions freely and voluntarily and that the effect of the will is understood.28 In carrying out that duty solicitors must take reasonable steps to satisfy themselves that a testator has testamentary capacity at the relevant time. [280] Where a testator is elderly, it is generally considered prudent that a medical opinion be obtained as to the testator’s medical condition and whether any such conditions may affect the testamentary capacity of a testator.29 [281] A solicitor’s duties when taking instructions and preparing wills for a client vary depending on the circumstances. In Ryan v Dalton; Estate of Ryan (‘Ryan v Dalton’), Kunc J set out a useful summary of the matters for a solicitor to consider when retained to prepare wills, in particular, for elderly clients:30 (1) The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary. (2) A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases. (3) In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note. (4) In case of anyone: (a) over 70; (b) being cared for by someone; 25 Exhibits R2 97; Exhibit R2 98. 26 Exhibit R2 58; Exhibit R2 59. 27 Moloney at [278] – [282]. 28 Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275. 29 Fradgley v Pocklington (No 2) [2011] QSC 355 at [28]. 30 [2017] NSWSC 1007 (‘Ryan v Dalton’). -- 11 of 99 -- [2024] SASC 110 McIntyre J 10 (c) who resides in a nursing home or similar facility; or (d) about whom for any other reason the solicitor might have concern about capacity, the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries. (5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided. 31 [282] His Honour also emphasised that in the many cases that come before the Court, the evidence of the solicitor will be critical. For that reason, it is essential that a solicitor make full and contemporaneous file notes of their attendances on the client and any other persons and that those file notes be retained indefinitely.32 What were Shirley O’Dea’s testamentary dispositions in the years prior to the contested wills? 31 Shirley O’Dea was a prolific will maker. David Evans was her solicitor until Gregory Anderson commenced to represent Shirley O’Dea, in late 2015 to early 2016. Both solicitors prepared a number of wills for Shirley O’Dea. 32 David Evans gave evidence about the earlier wills that he had been instructed to prepare on behalf of Shirley O’Dea. The executed copies of the wills are not available but there is no reason to doubt that the file copies produced by David Evans are true and correct records of the wills he was instructed to prepare. David Evans was an impressive witness. His evidence was clear and cogent. His files were professional and included clear and careful notes of instructions given and advice provided. Regrettably, the same cannot be said of Gregory Anderson or his files. 33 Gregory Anderson was Shirley O’Dea’s solicitor in relation to each of the subject wills. Unfortunately, the way in which Gregory Anderson took and recorded instructions from Shirley O’Dea, and the way he prepared her wills, fell considerably short of what was required to comply with the obligations of a solicitor as set out above. In addition, there were issues with the way in which he arranged for the execution of two of the contentious wills. Gregory Anderson did not take proper notes of significant matters. His evidence was unreliable. On several occasions it was inconsistent with his file notes, his affidavits,33 and other objective evidence. 31 Ibid at [107]. 32 Ibid at [108]. 33 Exhibit R1 50; Exhibit R1 51. -- 12 of 99 -- [2024] SASC 110 McIntyre J 11 34 Between December 2001 and June 2009, Shirley O’Dea gave instructions for, and made, a number of wills which first gave her estate to her sister, Phyllis O’Dea, but, if Phyllis O’Dea predeceased her, gave sections 405, 480 and 270 to the Church and section 431 to Dr Lane and his wife, Peggy Lane (“the Lanes”) absolutely. 35 Ms Phyllis O’Dea died in November 2009. Between December 2009 and February 2018, Shirley O’Dea provided instructions for, and made, a number of wills which all gave sections 405, 480 and 270 to the Church. Originally the gift was to the Archdiocese of Adelaide but in 2011 the beneficiary became the Catholic Parish that incorporates the Riverton Church. The gift continued to benefit the Church. From March 2007, Shirley O’Dea’s wills and those of her sister, Phyllis O’Dea, included a condition that if the Church sold the land the proceeds were to be used for the establishment of the “O’Dea Home”, a retirement home for Priests. 36 Shirley O’Dea’s wills of December 2009, June 2009 and December 2010 gave section 431 to the Lanes absolutely. Subsequently, Shirley O’Dea’s wills between May 2011 and February 2018 gave section 407 to the Lanes absolutely. 37 From May 2011 until September 2014, all of Shirley O’Dea’s wills gave an interest in section 431 to the O’Dea brothers and Barbara Barker. From the September 2014 will up to and including the last will (including the contested wills), section 431 was given absolutely to the O’Dea brothers. 38 David Evans’ evidence confirmed that the substantive gifts of farmland remained consistent throughout the time he represented Shirley O’Dea. The O’Dea sisters preferred that the land continue to be farmed if possible. This was reflected in the various wills that he drafted. David Evans explained that the O’Dea sisters had a large number of friends and acquaintances who were religious people. They were concerned that there was not much provision for the old age of such people. David Evans suggested the concept of the “O’Dea Home” as a place to benefit retired clergy in the event the Church was not able to farm the land. The O’Dea sisters were happy with that suggestion, and David Evans drafted clauses accordingly. These were replicated in subsequent wills prepared by David Evans. 39 David Evans also gave evidence about the first time a gift of land featured Jim McInerney. He received instructions from Shirley O’Dea that Jim McInerney was to have the first option to farm the land for the Church. This was in a will dated 28 November 201434, which contained the usual gift of sections 405, 480 and 270 to the Catholic Parish that incorporated Riverton Church but added the following: 35 …to continue to be farmed if reasonably practicable by James Vincent McInerney or such further or other suitably experienced farmer as my trustees shall determine in their absolute 34 T281 – 283. 35 Exhibit R2 29 at [4(a)]. -- 13 of 99 -- [2024] SASC 110 McIntyre J 12 discretion or otherwise to be sold and for the proceeds of such farming or sale to be used to support homes for retried religious persons and in the event of a sale of the said land that any facility built or housing acquired from the proceeds of such sale shall bear the name “O’Dea Home”. 40 David Evans was taken to his file note dated 28 October 2015 which said, “Jim McInerney to have share farming”. The note also referred to “leave with Ian”. This was a reference to Ian Wedding who was then farming Shirley O’Dea’s land under a lease arrangement. David Evans said that this wasn’t something that was to appear in the will, rather it was to do with the current arrangements for the farm, so it wasn’t really relevant to what he was doing.36 41 Jim McInerney said that in around 2015 Shirley O’Dea told him that she was considering leaving farmland to the Church. Of course, it is clear from David Evans’ evidence that Shirley O’Dea had included that provision in her wills since 2001. Jim McInerney says that he told Shirley O’Dea that it was a matter for her what she did in her will but if she wanted to leave land to the Church that it would be a great thing to do. Shirley O’Dea raised with him that he could maybe lease farmland from the Church in the future. Jim McInerney said that he did not further those conversations. However, the evidence of Jack O’Dea is that Jim McInerney contacted him by telephone in 2015 and attempted to discuss the topic. 42 David Evans drafted a further will for Shirley O’Dea in late November 2015. This again contained a reference to Jim McInerney in the context of the gift of land to the Catholic Church. David Evans agreed that, whilst the wording was somewhat different, Shirley O’Dea’s intention was substantially the same as it had been in the 2014 will. This will was not signed. Rather, David Evans provided the draft to Gregory Anderson by way of email when Gregory Anderson took over drafting Shirley O’Dea’s wills.37 43 Each will prepared by David Evans contained a gift to “my friends Dr Harold Lane and his wife [Mrs] Peggy Lane”. Phyllis O’Dea’s wills contained a clause in identical terms. David Evans described the use of the expression “my friends” as the form of reference that the O’Dea sisters were most comfortable with. He did not recall any occasion on which Shirley O’Dea said she had misgivings about this gift.38 44 When Gregory Anderson took over from David Evans as the lawyer responsible for preparing Shirley O’Dea’s wills, similar provisions were set out in the first wills that he prepared. The will dated 1 September 2016, the will incorrectly dated 31 March 2016 but executed on 30 March 2017 and the will of 15 February 2018 had the same gifts of farmland to the Church and to the Lanes. The reference to Jim McInerney in the gift of land to the Church does not appear in any of these wills. Gregory Anderson was not able to explain why this was. 36 T282. 37 T283 – 284. 38 T292. -- 14 of 99 -- [2024] SASC 110 McIntyre J 13 45 Accordingly, Shirley O’Dea evidenced a long held commitment in each of her wills to make the same gifts of her farmland to the Church and to the Lanes. The substantive change in the testamentary dispositions made by Shirley O’Dea occurred in the December 2018 and January 2019 wills. Evidence of the Parties Jack O’Dea – the applicant 46 Jack O’Dea provided three affidavits dated 17 June 2021, 18 July 2023 and 3 October 2023.39 He also gave evidence in a careful, coherent and forthright manner. I accept his evidence. Jack O’Dea could be described as a disinterested party in the sense that his entitlement does not change, and he does not take any fixed position concerning which will ought to be admitted to probate. 47 Jack O’Dea’s father was a second cousin of Shirley O’Dea. Jack O’Dea is a retired accountant with a Bachelor of Arts majoring in Economics and a Bachelor of Accounting. He commenced working as an accountant in 1976 and continued until his retirement in June 2018. From around 1990, when he was working in Riverton, he commenced providing accounting services to the O’Dea sisters. Generally, the work was confined to preparing taxation returns for the farming business. Prior to Ms Phyllis O’Dea’s death he dealt mainly with her and thereafter with Shirley O’Dea. The O’Dea sisters kept handwritten records, or cheque summaries, of the cheques they had written through the year. They would forward these cheque summaries to Jack O’Dea together with bank account statements at the end of each financial year. He would then have records of the income and expenses for the farming business which he used to prepare their taxation returns. Shirley O’Dea prepared the cheque summaries after Ms Phyllis O’Dea’s death until September 2017. 48 Jack O’Dea says that he was contacted by Shirley O’Dea’s solicitor, David Evans, a number of years ago to see if he was prepared to act as Shirley O’Dea’s executor with David Evans. Jack O’Dea agreed. From that time on he assumed he was Shirley O’Dea’s executor but did not know about the contents of her will. He did not see any of Shirley O’Dea’s wills until after her death when Mellor Olsson sent him a copy of the January 2019 will via email on 6 October 2020. 49 Jack O’Dea was contacted by the nursing home shortly after Shirley O’Dea’s death and told that he would have to clear her possessions out of her room. When he did so he found an envelope in her cupboard that contained all the documents relating to her will that he found in her room. This included:40 • The original February 2018 will; 39 Exhibit A 6; Exhibit A 7; Exhibit A 8. 40 Exhibit A 6. -- 15 of 99 -- [2024] SASC 110 McIntyre J 14 • Copies of wills dated 25 January 2019, 15 February 2018 and 30 March 2016 wills together with covering correspondence and accounts from Mellor Olsson; and • Unsigned draft wills dated 2017 and 24 November 2015. 50 In view of the matters outlined in his affidavit Jack O’Dea was uncertain which of the various wills represented Shirley O’Dea’s last will and testament and accordingly he brought the present application. 51 Jack O’Dea says that he had limited contact with Shirley O’Dea until about one or two years before he retired in July 2018. He would speak to her on the phone to clarify issues with her tax and would occasionally drop in to see her when he was on his way to visit his mother. In about mid-2016 to mid-2017, Shirley O’Dea commenced ringing him regularly at his office. The frequency of these calls ranged from once or twice a week to sometimes three or four times a day. Sometimes she would ring him on the weekends at home. The calls were partly about financial matters but often they were more general. Jack O’Dea felt that she was lonely and just wanted to talk. 52 Jack O’Dea continued to assist Shirley O’Dea with her taxation obligations after his retirement. 53 In September 2017, Shirley O’Dea was 93, and her bookkeeping practices started to decline. She stopped preparing the cheque summaries. Jack O’Dea did not discover this until September 2018. Between October and November 2017, Dr Lane became concerned that Shirley O’Dea was not paying her bills as she had forgotten to pay her car registration. Dr Lane communicated this to Jack O’Dea. Dr Lane set up direct debits for Shirley O’Dea’s electricity, telephone, and water accounts in consultation with Jack O’Dea. Jack O’Dea was not a friend of Dr Lane but knew of him as a friend of Shirley O’Dea. 54 During cross examination, Jack O’Dea was challenged about the setting up of direct debits in August 2017. It was suggested to him that Shirley O’Dea had set these up. Jack O’Dea denied this saying that Shirley O’Dea would not have known what a direct debit was. This was consistent with the evidence of Dr Lane. I accept Jack O’Dea’s evidence, and that of Dr Lane, about Shirley O’Dea’s lack of understanding of online banking and direct debit arrangements. 55 On 17 September 2018, Jack O’Dea visited Shirley O’Dea at her Mill Court unit for the purpose of speaking to her about her taxation documentation. He did not specifically recall the sequence of events but thought he did not have the documentation and accordingly contacted Shirley O’Dea to follow it up. He has a contemporaneous note about his visit which is annexed to his second affidavit.41 41 Exhibit A 7. -- 16 of 99 -- [2024] SASC 110 McIntyre J 15 56 Shirley O’Dea provided him with the cheque summary. On looking at this, it became clear to Jack O’Dea that Shirley O’Dea had stopped recording cheques after 26 September 2017. Jack O’Dea was surprised because she was “generally diligent and meticulous in preparing these documents”.42 After that date the handwritten entries on the cheque summary are in Jack O’Dea’s writing. The summaries are exhibited to Jack O’Dea’s second affidavit.43 57 Jack O’Dea spoke to Shirley O’Dea about her banking. With her agreement, he set up internet banking so that he could oversee her accounts and make sure they were not overdrawn. He set up more direct debits to ensure her bills were paid. He arranged with the Balaklava ANZ Bank to become an authorised representative on her account. He closed one of Shirley O’Dea’s personal bank accounts so that she only had a business account and one personal account. He spoke to organisations such as the Council, her health insurer Bupa, and Mill Court about setting up direct debits in relation to their accounts. He found some payments to Bupa, had not been made. Direct debits had already been set up for Telstra, AGL and SA Water by Dr Lane. 58 In his contemporaneous note, Jack O’Dea noted that Shirley O’Dea’s memory was deteriorating. The things that caused him to write this were that she had stopped filling out cheque summaries, she was unable to find her cheque book and recent bank account statements. He also found unopened invoices and bank statements in her unit. There were donations to charities, birthday, and Christmas cards, some with money in them, that had not been sent. 59 Jack O’Dea said that Shirley O’Dea moved into the Balaklava Mill Court Nursing Home on a respite basis in January 2019. During this period, she retained her retirement village unit. Eventually, in about March 2019 when the respite period ended, Shirley O’Dea decided to move permanently into the nursing home. From his observations it seemed to him that she enjoyed having other people around. She continued to be able to engage in conversation at this point. On a date he cannot remember, he and his partner helped Shirley O’Dea move her smaller possessions from the unit to her nursing home room. Jim McInerney helped dispose of some of the larger items that would not fit in Shirley O’Dea’s nursing home room.44 60 I accept Jack O’Dea’s evidence that Shirley O’Dea was struggling to utilise her cheque books, to pay her bills and with financial matters in general from mid to late 2017. As a consequence, Jack O’Dea became more involved in Shirley O’Dea’s financial affairs from September 2018. He became the authorised representative on her ANZ bank accounts. In addition, he acted as her next of kin in dealings with Dr Nyoni, Mill Court and the nursing home. He subsequently 42 T707. 43 Exhibit A 7. 44 Ibid at [51]-[54]. -- 17 of 99 -- [2024] SASC 110 McIntyre J 16 became her power of attorney and decision maker under an advance care directive signed in January 2019 after Shirley O’Dea moved into the nursing home. Jim McInerney – the first respondent 61 Jim McInerney swore affidavits dated 30 March 202245, 13 July 202346 and 24 September 2023.47 He also gave evidence. 62 Jim McInerney says that he shared a strong connection with Shirley O’Dea and a close relationship. He considered her to be family and, from what she said to him, he believes that she felt the same way. Indeed, he gave evidence that Shirley O’Dea said she believed they were distantly related. The McInerney family and the O’Dea family were close-knit families from the same farming area. He did not meet Shirley O’Dea personally until she moved to Hamley Bridge but had always known of her. Jim McInerney first got to know the O’Dea sisters when they lived at Hamley Bridge then Riverton and in later years at Balaklava where Shirley O’Dea lived from approximately 2012 until 2020. He met them through his aunt who was very good friends with the O’Dea sisters. 63 Shirley O’Dea was a devout Catholic as is Jim McInerney and his immediate family. Shirley O’Dea moved to Riverton from Hamley Bridge in around 1995. They attended the same Church. For many years he was a committee member and president of the Riverton Parish Pastoral Council and his relationship with Shirley O’Dea became much closer through that connection. They regularly shared cups of tea and coffee and occasional lunches and would have general discussions about friends and family. 64 When Shirley O’Dea moved to Balaklava, he says that he visited her regularly on average once or twice each month and talked on the telephone often a couple of times a week. The second and third respondent challenged this evidence saying that the subpoenaed telephone records did not support that level of contact by telephone, at least in early 2018. Jim McInerney initially he said that this frequency of calls occurred during 2018 apart from March and April when he and his wife were at the Commonwealth Games. Jim McInerney ultimately conceded that the telephone records show no telephone conversations with Shirley O’Dea between 1 January 2018 and 22 June 2018, whereas the records after that date show 94 telephone calls from 24 July 2018 to 3 January 2019.48 The second and third respondent contend that the reasons for the calls in the latter half of 2018 were principally related to the wills. 65 Jim McInerney also conceded in cross-examination that he did not visit as often as once or twice a month in 2018. He and his wife were interstate in March and April and his calendar for the 2018 financial year only recorded one visit on 45 Exhibit R1 9. 46 Exhibit R1 10. 47 Exhibit R1 11. 48 T81. -- 18 of 99 -- [2024] SASC 110 McIntyre J 17 22 June 2018 although I accept that there were likely other visits that were not recorded. 66 Jim McInerney said that Shirley O’Dea was capable of living and managing daily tasks and she was also very capable of managing her own financial affairs. He described her as an independent, strong-minded person with a dry sense of humour. 67 The balance of Jim McInerney’s evidence is contentious and goes to the heart of the issues in dispute. I will deal with it in context. I accept his evidence about his relationship with Shirley O’Dea as outlined above but consider that he overstated the frequency of his contact with Shirley O’Dea at least in the first half of 2018. I do not accept his evidence about Shirley O’Dea’s capabilities concerning financial matters after late 2017. I prefer the evidence of Jack O’Dea on that topic. I also consider that Jim McInerney minimised Shirley O’Dea’s deteriorating state of health, both physical and mental, from at least October 2018 when she was under the care of community health nurses for reasons that will be apparent from the medical evidence. 68 Jim McInerney harbours animosity towards Jack O’Dea for bringing these proceedings. This coloured aspects of his evidence particularly in relation to his evidence about telephone conversations he initiated with Jack O’Dea. Jim McInerney was furthermore argumentative and appeared to tailor his responses to suit his own purposes. I formed the view that much of his evidence was self-serving and that his evidence on matters of significance to these proceedings was unreliable at best and untruthful at worst. He frequently contradicted evidence that he had given earlier. Examples of this will be outlined in these reasons dealing with the events in the second half of 2018 and January 2019. I am only prepared to only accept his evidence as to those events where it is reliably corroborated or otherwise uncontroversial. Dr Harold Lane – the third respondent 69 Dr Lane, a medical practitioner, was born in 1936 and is currently 87 years old. His wife, Peggy Lane, died on 3 August 2019. He swore an affidavit on 14 August 202349 and also gave oral evidence. Dr Lane gave his evidence in a clear, open, and cogent manner. He was not shaken in cross-examination. I have no hesitation in accepting his evidence. 70 Dr Lane met Shirley O’Dea in 1963 as a patient when he purchased the Wakefield Plains Medical Clinic at Balaklava. Shirley O’Dea remained his patient for the next 44 years. He treated both Shirley O’Dea’s parents until their deaths. Shirley O’Dea suffered severe chronic hypertension and visited Dr Lane regularly every six to eight weeks at his branch in Owen. Peggy Lane, worked with Dr Lane at his medical practice. Phyllis O’Dea was not a patient of Dr Lane but on nearly every occasion Shirley O’Dea visited Dr Lane she was accompanied by her sister 49 Exhibit R3 94. -- 19 of 99 -- [2024] SASC 110 McIntyre J 18 Phyllis O’Dea. The Lanes were occasionally invited to join the O’Dea family at their home at Hamley Bridge for parties and cups of tea. 71 Dr Lane became heavily involved in the Balaklava Racing Club from 1965 initially as the honorary surgeon and subsequently as a committee member. Through this association with the racing club the Lanes spent a lot of time with the O’Dea sisters. Both the O’Dea sisters were passionate about horse racing. They sponsored an annual horse race in the name of the O’Dea family for more than 24 years. 72 In the late 1980’s the O’Dea sisters became particularly friendly with Peggy Lane. Their friendship remained strong. Peggy Lane spent time with the O’Dea sisters and occasionally Dr Lane also attended. On a date that Dr Lane does not precisely recall, but about which he has a very clear recollection, the O’Dea sisters approached him and his wife at the end of a consulting session at the Owen Clinic. On this occasion, in the presence of Shirley O’Dea, Phyllis O’Dea said words to the effect of “we would like to include you and Peg[gy]in our wills”. Dr Lane had never previously discussed with either of the O’Dea sisters anything relating to their wills. Their statement on this occasion was unprompted and unexpected. Dr Lane said that he had no reason to suspect that either of the O’Dea sisters were considering making a gift to him and his wife and the suggestion came out of the blue. On a subsequent occasion at their Riverton home, Phyllis O’Dea, in the company of Shirley O’Dea, asked them words to the effect “would you like us to leave you land or money”, and “if you would prefer land which piece of land would you like” and “would you like the one that Peg[gy] loves”. Dr Lane responded by saying words to the effect “it’s your land and money and the decision is yours, not ours”. 73 On other occasions Shirley O’Dea told the Lanes, that she and Phyllis O’Dea were leaving farmland to the Church. Other than this, there were no subsequent discissions between Dr Lane and, to the best of his knowledge, his late wife with either of the O’Dea sisters about their wills. At no time, despite regular communications both before and after December 2018, did Shirley O’Dea ever convey to the Lanes that she intended to change the gift about which she had spoken to them about many years earlier. 74 Jim McInerney gave evidence, both in his affidavits and orally, that Shirley O’Dea told him that Dr Lane had asked her if she could leave him “a little bit of land”, and that she felt uncomfortable about this but did not feel she could go back on her word.50 This was put to Dr Lane who denied it emphatically.51 I accept Dr Lane’s evidence. His evidence was compelling and unshaken by cross- examination. It is supported by the evidence of David Evans that at no time whilst he was preparing her wills did Shirley O’Dea express any misgivings about her decision to leave allotment 407 to the Lanes and that she referred to them as her 50 Exhibit R1 10 at [3.2]. 51 T893-894. -- 20 of 99 -- [2024] SASC 110 McIntyre J 19 friends. Jim McInerney’s evidence further does not sit comfortably with the evidence that Phyllis O’Dea’s wills contained a similar provision. I will deal with Gregory Anderson’s evidence on this topic in the context of the changed instructions. I reject however any suggestion that the gift of land to the Lanes in the earlier wills was prompted by Dr Lane rather I accept his evidence that the suggestion was unexpected and was made by Phyllis O’Dea in the presence of Shirley O’Dea. 75 The Lanes moved to Adelaide in September 2017 but remained in regular contact with Shirley O’Dea. In particular, Dr Lane always called on her when he attended meetings at the Balaklava Racing Club which he continued to do as a committee member or when he visited his son who lives with his family near Balaklava. Peggy Lane and Shirley O’Dea spoke at length on the telephone at least once every week prior to Peggy Lane’s death in August 2019. Dr Lane attended Shirley O’Dea’s 90th birthday party. Photographs of them together were tendered.52 He maintained contact with Shirley O’Dea until her death. Shirley O’Dea according to her friends and acquaintances 76 Jim McInerney called a number of lay witnesses who were friends or acquaintances of Shirley O’Dea. 77 Jim McInerney was cross-examined about the witnesses that he had spoken to. He said that he spoke to everybody on the visitor’s list at the nursing home in relation to these proceedings. He denied saying that the Church was trying to take away his land but said he gave a “A very, very brief history of what’s happened”53 and that he would ask them how they saw Shirley O’Dea’s state of mind before he did so. He said that in his opinion he found Shirley O’Dea fine but did not put words into their mouths. 78 I reject the Church’s submission that these witnesses were not independent because they were approached by Jim McInerney for “support” and because of his conversations with them. There are some exceptions which I will deal with in context. I accept that Jim McInerney’s involvement with various lay witnesses, as he described it, was undesirable. Nonetheless, it is my view that, however they came to be involved in these proceedings, generally speaking these witnesses were doing their best to assist the Court. Apart from where I indicate otherwise, I do not have any reservations about their evidence. However, in the main these witnesses, in common with lay witnesses called by the Church, gave very general and often vague evidence about Shirley O’Dea’s day to day functioning that does not greatly assist with an assessment of her testamentary capacity at critical times. I also note the caution sounded by the NSW Court of Appeal in Craig-Bridges v NSW Trustee and Guardian:54 52 Exhibit R2 112. 53 T75. 54 [2017] NSWCA 197 at [158]. -- 21 of 99 -- [2024] SASC 110 McIntyre J 20 It is one thing for a person to convey the appearance of full cognitive competence in ordinary conversations; it is another for the person to have testamentary capacity. Mark Vincent McInerney 79 Mark McInerney is the son of the first respondent. He gave evidence by way of affidavit sworn on 13 June 202355 and oral evidence. Mark McInerney gave his recollection of somewhat limited dealings with Shirley O’Dea at various Church events. He assisted Shirley O’Dea’s permanent move into the nursing home in March 2019 with his parents and John Robbins. He gave evidence of a conversation concerning his children and their love of farming with Shirley O’Dea in November 2019 at the All Souls’ Day Service.56 In cross examination he was less certain that the conversation happened during the 2019 service conceding that it may have been earlier.57 Margaret Kaye McInerney 80 Margaret McInerney is Jim McInerney’s wife. She gave evidence by way of an affidavit sworn on 13 July 2023.58 She was not cross-examined. She came to know Shirley O’Dea by having general conversations after Church each week at Riverton. Shirley O’Dea attended at their farm for lunch on 26 December 2018. She and her husband assisted Shirley O’Dea in early 2019 to move into the nursing home. She visited Shirley O’Dea three to four times a year when she was in the nursing home. Shirley O’Dea rang frequently to chat. I note however that this could not have occurred in the first six months of 2018, in light of the Telstra records.59 Shirley O’Dea participated in a Mass held at the Navan Cemetery each year in November. The last time she saw Shirley O’Dea was on 3 March 2020. Annette Elizabeth Barker 81 Annette Barker was a friend of Shirley O’Dea. She swore an affidavit on 14 July 202360 and she gave oral evidence. Annette Barker was the witness to Shirley O’Dea’s will dated 30 March 2016. She had no independent recollection of the date but recalled witnessing a will at Shirley O’Dea’s request. 82 Annette Barker did not know Jim McInerney prior to these proceedings but gave evidence of him contacting her about this case. She did not recall Jim McInerney visiting Shirley O’Dea at the unit or the nursing home but did recall Shirley O’Dea speaking fondly of both Jim McInerney and Ian Wedding. She said in cross-examination that during the last six months of 2018 Shirley O’Dea was a bit forgetful and a little bit vague and confused.61 55 Exhibit A 33. 56 Exhibit R1 33 at [3]-[4]. 57 T308-309. 58 Exhibit R1 32. 59 Exhibit R2 14. 60 Exhibit R1 35. 61 T351. -- 22 of 99 -- [2024] SASC 110 McIntyre J 21 Michael John Schilling 83 Michael Schilling provided an affidavit sworn on 11 July 202362 and also gave oral evidence. His evidence relates mainly to Shirley O’Dea’s general demeanour and conduct. He had known Shirley O’Dea since around 2012 when she moved to Balaklava and attended the Balaklava Catholic Church. She was a devout Catholic until she passed away. 84 Michael Schilling’s conversations with Shirley O’Dea were generally about people she knew and her life on the farm. He considered her to be a private person who was polite and thoughtful. Shirley O’Dea talked about Jim McInerney and his family. She also talked all the time about Dr Lane, the Robbins, and the O’Dea’s. She spoke fondly about everyone.63 85 Shirley O’Dea sold her car after she surrendered her licence in 2015. She purchased a gopher. She had problems with her eyesight. Michael Schilling saw Shirley O’Dea apparently writing cheques when she lived in her unit. He was unclear precisely when that was – he did not see her doing that in the nursing home.64 Michael Schilling said that on one occasion Shirley O’Dea told him she had been fined for not paying her car registration. She was quite upset about it because she thought she had paid.65 He described Shirley O’Dea as “pretty focussed and on the ball” and gave an example of the occasion she sold her car.66 This, of course, occurred in 2015. 86 Michael Schilling also gave evidence of Jim McInerney calling him twice approximately around February 2023 and speaking to him about this matter in some detail.67 Whilst I accept that Michael Schilling was doing his best to assist the court notwithstanding Jim McInerney’s involvement, I cannot exclude the possibility that some of his evidence was affected by those discussions. Accordingly, I treat his evidence with some caution. In any event, Michael Schilling’s evidence was helpful but not strictly relevant to the matters in dispute given his inability to be more specific about the timing of his various observations. Father Brian Joseph Ahern 87 Father Ahern swore an affidavit on 12 July 202368 and also gave oral evidence. 88 Father Ahern met Shirley O’Dea in 2014 whilst saying Mass at the Balaklava Catholic Church. She was a devout Catholic. She never spoke to him about abuse of children within the Church. She was happy for her land to be used by the 62 Exhibit R1 37. 63 T377-378. 64 T362. 65 T382. 66 T383. 67 T379-380. 68 Exhibit R1 38. -- 23 of 99 -- [2024] SASC 110 McIntyre J 22 Catholic Church for a youth camp. Shirley O’Dea spoke highly of Dr Nyoni and his wife. She also spoke to him about parishioners they both knew, occasions she attended the Balaklava races and other general topics. 89 Father Ahern said that he had a conversation with Shirley O’Dea on 3 September 2017 during which she told him she was leaving half her land to the Catholic Church and half to a relative. She again spoke to him in 2018 saying that she was leaving land to the Catholic Church. He could not be certain when this was but thought it was within six months or so of the earlier conversation on 3 September 2017.69 Rosemary Kathleen Galton 90 Rosemary Galton’s evidence-in-chief was largely given via affidavit sworn on 19 July 202370. Rosemary Galton was the sister of the late Father Hay and a good friend of Shirley O’Dea. She was the decision maker under an advanced care directive signed by Shirley O’Dea in March 2017. Jack O’Dea was the substitute if she was unable or unwilling to act. She was uncomfortable about this as she was not a blood relation. Shirley O’Dea brushed away her concerns and so Ms Galton reluctantly agreed. In late 2018 or early 2019 she again raised her concerns with Shirley O’Dea and with Jack O’Dea. Accordingly, the new advanced care directive was signed in January 2019 reversing their roles. 91 The balance of Rosemary Galton’s evidence related to her longstanding friendship with Shirley O’Dea. She described her as being “consistently the same Shirley I had known”71 until after COVID restrictions were lifted at the nursing home midway through 2020. In cross-examination however whilst she said initially that she could not recall Shirley O’Dea being forgetful prior to this and that she seemed the same all along, Rosemary Galton then conceded that she could not be 100 per cent sure about this.72 92 The second respondent contends that Rosemary Galton was an unreliable witness because she denied that Jim McInerney had asked her to swear an affidavit in these proceedings whereas Jim McInerney gave evidence that he had. My view, however, is that her evidence was reliable but largely unhelpful in relation to the issue of Shirley O’Dea’s testamentary capacity at relevant times. Kirsty Corinne Ingram 93 Kirsty Ingram met Shirley O’Dea through the Catholic Church. She assisted Shirley O’Dea with cleaning and Meals on Wheels when Shirley O’Dea was living in her Mill Court unit. Kirsty Ingram swore two affidavits prepared by Jim McInerney’s solicitors73 and also gave evidence. 69 Exhibit R1 38; T393-395. 70 Exhibit R1 39. 71 Exhibit R1 39 at [32]. 72 T414-415. 73 Exhibit R1 40; Exhibit R1 41. -- 24 of 99 -- [2024] SASC 110 McIntyre J 23 94 Prior to swearing her first affidavit, Kirsty Ingram gave a statement to the solicitors for Jack O’Dea in his capacity as executor.74 Following this she was contacted by the solicitors for the Church and provided them with information and was to be provided a draft affidavit in due course. Before the solicitors drafted the affidavit, Jim McInerney visited Kirsty Ingram out of the blue. She had not met him before this. Jim McInerney explained “what was going on” and that the Church “was fighting Shirley’s last will”. He explained to her “how Shirley’s will was made”. Ms Ingram agreed that Jim McInerney appeared “pretty cross” with the Church for contesting it.75 Ms Ingram swore an affidavit prepared by Jim McInerney’s solicitors on 11 July 2023. A draft affidavit was sent to her by the Church’s solicitors via email on the same day,11 July 2023. Kirsty Ingram replied to the Church’s solicitors email the following day saying that she was not prepared to sign it and that she did not approve of the Church challenging Shirley O’Dea’s last will.76 95 Ms Ingram agreed that she spoke to the Church’s solicitor and agreed to swear an affidavit but changed her mind after speaking to Jim McInerney. 96 Amongst other things, Kirsty Ingram’s first affidavit contained the following:77 I never observed any issues with Shirley in relation to her memory or being disoriented or forgetful and so did not write anything down for her. 97 This is inconsistent with the statement Kirsty Ingram provided to Jack O’Dea’s solicitor some two years earlier. When shown that statement78 Kirsty Ingram said that it refreshed her memory about things she knew about Shirley O’Dea. This document was the reason she swore her second affidavit on 3 October 2023. In that affidavit, Kirsty Ingram amended her first affidavit, inter alia, as follows:79 At paragraph 17, where I said I never observed any issues as to Shirley’s memory, I now say that there were some instances that I now recall when she was becoming slightly forgetful. It is still correct to say that I have never seen her to be disoriented. I say that at times she was forgetful such as putting items in different spots and not recalling where, but that may also be a normal observation from the natural progression of old age. … Shirley still remembered names right up to the very end and held conversations with me. 98 Under cross-examination Kirsty Ingram was taken through each paragraph of the statement she provided to Jack O’Dea’s solicitors. She confirmed its accuracy.80 Specifically she confirmed that she commenced dusting Shirley O’Dea’s unit about two years prior to her move into the nursing home. She said 74 Exhibit R2 43. 75 T425. 76 Exhibit R2 42. 77 Exhibit R1 40 at [17]. 78 Exhibit R2 43. 79 Exhibit R1 41 at [7(b)]. 80 T437-451. -- 25 of 99 -- [2024] SASC 110 McIntyre J 24 that, in the six to 12 months before Shirley O’Dea moved into the nursing home, she made observations of unusual things starting to happen including a saucepan which had been burnt, mice droppings in her cupboards, food going out of date or stale, and that Shirley O’Dea’s cleaning up was not as good as it had been. Kirsty Ingram also confirmed that things were disappearing. For example, one day Shirley O’Dea lost the dustpan and on another she lost the washing machine powder. Kirsty Ingram thought that Shirley O’Dea was moving things and not remembering where she had put them. 99 Kirsty Ingram’s evidence about why she swore the first affidavit when she now accepts it was untrue in parts was unconvincing and implausible.81 I consider it probable that it was informed by what she had been told by Jim McInerney. In the light of this I accept Kirsty Ingram’s oral evidence confirming the contents of the statement she provided to Jack O’Dea’s solicitors, and I reject the evidence in her first and second affidavits insofar as it is contradicted by the statement or oral evidence. Cathryn Mary Blackwell 100 Cathryn Blackwell swore an affidavit on 14 July 202382 and gave careful and considered evidence as a friend of Shirley O’Dea for over 50 years. She started driving Shirley O’Dea to appointments as early as mid-2013 but more regularly after Shirley O’Dea stopped driving and sold her car. Cathryn Blackwell visited Shirley O’Dea often and gave evidence of attending her 90th birthday party. Shirley O’Dea had asked her to help to arrange and manage her funeral. Shirley O’Dea provided her with a list of people including the Priest she wanted to conduct her funeral service and a list of the hymns she wanted at her funeral. It is not clear from her evidence why the funeral was arranged primarily by Jim McInerney. The first time Cathryn Blackwell met Jim McInerney was at Shirley O’Dea’s funeral. Christian Charles Hudson 101 Christian Hudson was the maintenance officer at Mill Court from 2011 to May 2020. He provided an affidavit sworn on 16 July 202383 and gave evidence.84 He helped Shirley O’Dea with various maintenance tasks associated with her unit from April 2014, when she moved in. He described her as being “with it” and mentally very good. She seemed the same to him throughout his contact with her until the day he left in May 2020. Shirley O’Dea was able to speak to him about his work, local events such horse racing, Ian Wedding, general farming and mutual acquaintances but he did not give evidence of more complex interactions. 81 T434-436. 82 Exhibit R1 44. 83 Exhibit R1 49. 84 T497-499. -- 26 of 99 -- [2024] SASC 110 McIntyre J 25 John Beeton Robbins 102 John Robbins was a long-term friend of Shirley O’Dea having known her for 66 years. He described his friendship with Shirley O’Dea and her sisters as being like brothers and sisters. He had regular contact with Shirley O’Dea both in person and on the phone. He had discussions with her about the farm, mutual acquaintances and things that were worrying her. He mentioned the damage and disruption caused by the Pinery Bushfires in 2015 as one topic of concern. 103 He helped Shirley O’Dea move into the nursing home in January 2019 and described Shirley O’Dea as “directing us with the skill of a movie director”.85 I suspect that John Robbins has mistaken the date as the other evidence suggests that he and the McInerney family assisted Shirley O’Dea with her permanent move to the nursing home in March 2019. In any event John Robbins said that Shirley O’Dea was very close with the McInerney family after the O’Dea sisters moved to Riverton. Jim McInerney would often visit and pray with her right up until the end. I have no reason to doubt any of that evidence. 104 There were, however, aspects of John Robbins’ evidence that were difficult to reconcile with other evidence that I accept. For example, he said Shirley O’Dea, and apparently her sister Phyllis O’Dea, made statements to him regarding their concern about land being left to the Church and then being sold to “pay for somebody else’s indiscretions”.86 He was somewhat unclear as to when this was saying it was in 1993 and/or 1999.87 He also made reference to discussions of the same topic in 1995.88 John Robbins’ evidence was to the effect that, after the topic first arose in the 1990’s, the O’Dea sisters continued to make statements of that type. This does not sit comfortably with the fact that, in 2001, both sisters included a gift of land to the Church for the first time. Thereafter both sisters, continued to make wills benefiting the Church. Shirley O’Dea continued this after Phyllis’ death until February 2018. They did not express any similar concerns to David Evans, their solicitor at the time. John Robbins further said that the statements continued into 2019 after Shirley O’Dea had moved into the nursing home and after Shirley O’Dea had changed her will to exclude the Church.89 105 John Robbins was unable to give any particulars or specifics as to the complaints other than saying Shirley O’Dea was “devastated” by the ordination of Father Fleming because it was “unsettling for the priests to have a married priest come into the fold.”90 In cross examination he conceded that this conversation had 85 T506. 86 T510. 87 T510; T518. 88 T517-518. 89 T522-523. 90 T511. -- 27 of 99 -- [2024] SASC 110 McIntyre J 26 nothing to do with her will91 and that the ordination occurred in 1995. He then said:92 Wasn’t until later that she said that it was the problem was too big. It was disgraceful. It was something that she found abhorrent and she was left with the dilemma that as properties were being sold off to compensate the indiscretions of those that had perpetrated in paedophilia or sexual abuse that she didn’t want to leave her land to and that was the first time she had spoken about any of the bequest to an organisation or to an individual person, that she didn’t want her land to be sold and for her ‘life to amount to nothing’ was her words but she would have preferred that it go on for perpetuity and she had felt in the beginning when she may, or the girls themselves collectively may have made a decision as to what to do with Humphry Springs, their farm that the Church seemed to be a lot more stable. 106 Whilst not clearly expressed it seems that John Robbins was suggesting that Shirley O’Dea informed him at some point after 1995 that she was leaving her farm to the Church and that she was concerned that it would be sold to pay compensation to victims of sexual abuse. The timing of this conversation is most unclear. John Robbins said that they again discussed Father Fleming in about 1999 when Father Fleming was asked to stop saying mass. He further said that Shirley O’Dea “just shook her head in absolute horror”93 when Bishop Wilson was arraigned but was not able to say when that was. Again, I note that the first gift of land to the Church did not occur until 2001 and that such a gift continued to be included in Shirley O’Dea’s wills until December 2018. 107 John Robbins was aware that the O’Dea sisters were concerned about what happened to priests upon their retirement. He had heard of the O’Dea Home concept but did not know that the O’Dea sister’s wills contained a clause that, if the farmland was to be sold, the money was to be used for that purpose.94 They never spoke about the terms of their wills, and he did not ask about them as he did not think it was his affair. 108 John Robbins’ evidence as to precisely what was said and when was somewhat unclear however he maintained that Shirley O’Dea was concerned that if she was to leave land to the Church it might be sold to pay for other people’s indiscretions from 2009 continuing into 2019 after she moved into the nursing home.95 He did not know she that she had apparently made a different will which left no land to the Church by 2019. 109 Whilst I accept that Shirley O’Dea may have spoken to John Robbins about allegations concerning sexual abuse within the Church, I do not accept that it occurred as frequently, or over such a long period, as he suggests. Further, I do not consider that his evidence on this topic supports the contention that this issue caused Shirley O’Dea to reconsider her will given the lack of certainty over the 91 T517-518. 92 T518. 93 T518. 94 T519–520. 95 T522. -- 28 of 99 -- [2024] SASC 110 McIntyre J 27 dates of such discussions and the evidence that Shirley O’Dea appears to have retained great respect for the Church. 110 John Robbins also gave evidence that he saw Shirley O’Dea continuing to keep records of receipts for tax purposes in 2019 after she had moved into the nursing home.96 He saw her with a pile of papers apparently writing numbers in an exercise book both in her unit and in the nursing home. She told him that she had to prepare these for Jack. John Robbins said that he did not want to be nosey and did not look but assumed that this was information for Shirley O’Dea’s tax returns. I do not accept that this was the case. I prefer the evidence of Jack O’Dea who said that this practice ceased in September 2017 and that he took over all Shirley O’Dea’s financial records in about September 2018. This is corroborated by the cheque summary.97 111 A bundle of quote books was tendered in evidence.98 These were not shown to John Robbins and so I do not know if any of these are the books he was referring to. In any event, it is apparent from a perusal of that exhibit that they are largely unconnected with financial or taxation matters. The only apparent calculations appear to have been made in February 2016 after the Pinery Bush Fires. The writing in the books is also consistent with evidence about Shirley O’Dea’s deteriorating eyesight. Lorena Torres 112 Lorena Torres provided an affidavit sworn on 8 October 202399 and also gave evidence.100 She met Shirley O’Dea whilst they both attended Sunday mass at the Balaklava Catholic Church in about 2016. She often visited Shirley O’Dea at her unit at Mill Court. She also visited Shirley O’Dea regularly when she moved into the nursing home. Lorena Torres was a church volunteer who used to give Shirley O’Dea and two others holy communion. 113 Lorena Torres’s evidence was clear and compelling. She was friendly with Shirley O’Dea and saw her often. Her observations dealt with general topics such as her discussions with Shirley O’Dea about her life, her family, her friends. Shirley O’Dea spoke highly of all her friends including Dr Lane, Dr Nyoni and Jim McInerney. She told Lorena Torres that the Lanes were good and close friends. She gave evidence of Shirley O’Dea’s devotion to the Catholic Church. Father Sexton 114 Father Sexton gave general evidence about his dealings with Shirley O’Dea by way of affidavit sworn 18 September 2023.101 His evidence was not challenged. He first met Shirley O’Dea in 2007 when he started attending Church meetings in 96 T503; T514. 97 Exhibit R2 79; Exhibit R2 77. 98 Exhibit R1 76. 99 Exhibit R1 61. 100 T665-673. 101 Exhibit R2 80. -- 29 of 99 -- [2024] SASC 110 McIntyre J 28 Riverton. He then got to know her as a member of the Balaklava Parish from about 2011. After Shirley O’Dea moved into her unit at Mill Court in about May 2014, he continued to see her at Church or when he visited her at her unit give take communion. From about 2016, Shirley O’Dea would forget what she had said in conversations with him and often repeated the same stories. He also noted that her unit was not as well kept as before with dishes in the sink. 115 Shirley O’Dea generally wanted to talk about the Church or horse racing with him. She never discussed allegations of sexual abuse within the Catholic Church with him. She spoke in a way that conveyed great respect for the clergy. He considered that she was a devout catholic. Father Boog 116 Father Boog gave unchallenged evidence by affidavit sworn 8 September 2023.102 He had known the O’Dea sisters since 2001. They were both very devout. He kept in contact after he left Balaklava at the end of 2008. He used to attend the races with Shirley O’Dea, and he often saw her in company with the Lanes. He was aware that Shirley O’Dea considered them to be her best friends. He had discussions with both the O’Dea sisters about allegations of sexual abuse within the Church. After Phyllis O’Dea’s death, he spoke to Shirley O’Dea on this topic. Neither said anything to suggest they had changed their views of the Church or the clergy. To his observation Shirley remained dedicated to the Church. Father Thoroughgood 117 Father Thoroughgood swore an affidavit dated 6 September 2023.103 He was not cross-examined. He first met the O’Dea sisters when they were his parishioners in Hamley Bridge. He remained in contact with Shirley O’Dea thereafter, mostly by telephone, until about late 2017 or early 2018. She also stopped sending Christmas cards to him in either 2017 or 2018. Shirley O’Dea spoke of the Church as the focal point of her life. He never heard her make negative remarks about the Church. Maureen Roberts 118 Maureen Roberts’ affidavit of 13 July 2023 was admitted under s 34C of the Evidence Act (SA) 1929.104 The evidence is of limited relevance. She was an employee of Country Home Services who helped Shirley O’Dea by driving her to the shops and to appointments from 2018 until her death. Her conversations with Shirley O’Dea related to what she was shopping for, her time on the farm and the time she used to do sewing. 102 Exhibit R2 81. 103 Exhibit R2 82. 104 Exhibit R1 114. -- 30 of 99 -- [2024] SASC 110 McIntyre J 29 Ian Wedding 119 Ian Wedding swore an affidavit on 10 August 2023105 and also gave evidence.106 Ian Wedding grew up on a farm neighbouring the O’Dea farm. The O’Dea farm was share farmed by Peter Smyth for some years. Peter Smyth stopped this in late 1994. On 6 February 1995, at the invitation of the O’Dea sisters, Ian Wedding and his wife entered into a share farming agreement with the O’Dea sisters in relation to lots 407, 405 and 480. That agreement was reviewed and renewed every year until Phyllis O’Dea’s death in 2009. After that time, the agreement changed to a lease agreement which was also reviewed and agreed yearly. Jack O’Dea contacted him about this saying it would be easier for Shirley O’Dea to manage than a share farming arrangement. In late 2018, Jim McInerney approached Ian Wedding about share farming Shirley O’Dea’s land. Ian Wedding declined that offer. 120 Ian Wedding and his family had a positive and close relationship with Shirley O’Dea. He observed that she was a devout Catholic and that she also had a passion for horse racing. She had slowed down somewhat when she moved into the unit at Mill Court in 2014; she had trouble with her eyes and stopped driving. Over time he noted that the unit was getting messier, and that paperwork was piling up on the dining table. In 2018 he noted dirty dishes left out in the kitchen and pots and pans in the sink. He continued to visit Shirley O’Dea regularly when she moved into the nursing home until her death. Anthony O’Dea 121 Anthony O’Dea is Jack O’Dea’s brother and the beneficiary with his brother of a gift of land in all four wills. He swore an affidavit on 24 August 2023107 and gave evidence.108 122 He had a lifelong friendship with Shirley O’Dea. Although he met them as a child, he got to know both the O’Dea sisters as result of their common interest in horse racing and the Balaklava Race club. After Phyllis O’Dea died, he saw Shirley O’Dea approximately every two to three months until the end of her life. 123 When the Pinery Fires burnt fences on the O’Dea farm in 2015 he was paid by Shirley O’Dea to replace fencing on the farm. He noticed that as she was signing the cheques, she was crouching over the cheque book with her face really close to it to sign. He also observed that her signature was getting smaller. Leo Redden 124 Leo Redden swore an affidavit on 31 August 2023 that was tendered by consent.109 He was not called to give evidence. He and his family have been 105 Exhibit R2 92. 106 T814-849. 107 Exhibit R2 93. 108 T876-877. 109 Exhibit R2 91. -- 31 of 99 -- [2024] SASC 110 McIntyre J 30 parishioners of the Riverton Catholic Parish since they moved to Riverton in 1988. He met Jim McInerney through the Church. He met Shirley O’Dea when he was about 10 years old whilst visiting his brother at Hamley Bridge. After the O’Dea sisters moved to Riverton, he became better acquainted with them. He saw them at Church and his business handled their farm and home insurance policies. After Phyllis O’Dea’s death he continued to handle Shirley O’Dea’s farm insurance and assisted her with her farming business and financial matters generally. 125 He described her as being naïve and inexperienced in dealing with business matters. In about 2011 he witnessed a will for Shirley O’Dea. She wanted him to do it on his own, but he was not comfortable with that and asked his PA, Naya Fisher, to attend as well. 126 When Shirley O’Dea moved to Balaklava in 2011, she occasionally contacted him at his office with queries about her insurance, but this was much reduced compared to when she lived in Riverton. By 2014 her calls became vaguer and more disjointed. She would often ring him forgetting that she had already spoken about the same matter. The calls stopped when she moved into the nursing home in 2019. He only saw her infrequently after her move to Balaklava. Naya Fisher 127 Naya Fisher was not called to give evidence. Her affidavit, sworn on 25 August 2023, was tendered by consent.110 Naya Fisher was Leo Redden’s PA between about 2008 and February 2017 with two breaks for maternity leave. She met Shirley O’Dea in the course of her employment. After Naya Fisher returned from maternity leave in 2011, Leo Redden asked her to accompany him to Shirley O’Dea’s house in Riverton to witness a will. Shirley O’Dea did not read the will in her presence, nor did they discuss the will. 128 Shirley O’Dea moved to Balaklava in 2011. She still visited their office to speak to Leo Redden but this reduced in frequency. In December 2015, Naya Fisher visited Shirley O’Dea with her children as Shirley O’Dea had often issued an invitation for her to do so. She observed that Shirley O’Dea was “good for her age” which was 91. She was physically able to do things like make cups of tea and they talked about the recent Pinery Fires and damage to Shirley O’Dea’s fences. What was Shirley O’Dea’s relationship with the beneficiaries of farming land in her various wills? 129 The lay evidence outlined above establishes that Shirley O’Dea was a friendly woman with a wide circle of friends and acquaintances. She had particular interests in her family, farming, horse racing and the Church. Several witnesses said that they had never heard Shirley O’Dea say anything negative about other people. She was a kind and generous person who enjoyed the company of others. 110 Exhibit R2 90. -- 32 of 99 -- [2024] SASC 110 McIntyre J 31 The Catholic Church 130 There is little controversy about the extent of Shirley O’Dea’s attachment and commitment to the Church. Shirley O’Dea was devout practising Catholic with strong faith. She remained so until her death. The contentious issue is whether Shirley O’Dea became disillusioned with the Church to the extent that she altered her longstanding testamentary intention to bequeath land to the Church as contended by Jim McInerney. I accept that Shirley O’Dea was concerned about various scandals related to the Catholic Church. She discussed these concerns with John Robbins and Father Boog although I do not accept that she did this as often as John Robbins suggested. I do not accept that she was concerned about the Church selling off land to pay for the indiscretion of its Priests. Shirley O’Dea was concerned about the Church selling the land and what occurred to the proceeds in general terms. She discussed this with David Evans who suggested the O’Dea home concept to guard against that eventuality. 131 Gregory Anderson gave some evidence of a conversation with Shirley O’Dea on 23 August 2023 in which he said that:111 We talked about the Catholic Church. She was - I guess my sense was that she was a bit disillusioned with the Church. Her main contact had been through the Riverton Church, and she has lost contact with the Riverton Church probably because she was living in Balaklava. She used to get visits from members of the clergy who were associated with the Riverton Church, and she wasn't receiving those visits any longer. 132 This evidence is not congruent with the other evidence that I accept concerning her relationship with the Church and various Priests. Shirley O’Dea continued to attend Church in Balaklava until shortly before her death. This meeting between Shirley O’Dea and Gregory Anderson will be discussed later in these reasons however, for present purposes, I indicate that I do not accept Gregory Anderson’s evidence on this topic. I find that Shirley O’Dea had, and continued to have, enormous respect for the Church and the clergy. The Lanes 133 The evidence establishes that the Lanes were close friends of the O’Dea sisters and that this friendship continued for many years including after Phyllis O’Dea’s death. Dr Lane was Shirley O’Dea’s general practitioner for many years. He ceased that role in the mid-2000s on his retirement. The friendship between the Lanes and Shirley O’Dea continued. I have rejected the evidence of Jim McInerney concerning Dr Lane requesting a gift of land from Shirley O’Dea but note that even Jim McInerney accepted that the Lanes were good friends of Shirley O’Dea. Jack O’Dea 134 There is nothing in the evidence to suggest that Shirley O’Dea was anything other than fond of Jack O’Dea. She acknowledged him as a relation and nominated 111 T540. -- 33 of 99 -- [2024] SASC 110 McIntyre J 32 him as her next of kin for medical and other matters. She trusted and relied on him for assistance with her financial matters from 1990 to the date of her death. Jim McInerney 135 I accept that Jim McInerney had a close relationship with Shirley O’Dea of longstanding. However, I consider that he exaggerated the nature and extent of this for reasons connected with these proceedings. 136 Margaret McInerney only gave evidence of Jim McInerney visiting Shirley O’Dea three to four times a year after she moved into the nursing home in January 2019. She did not give evidence of him visiting Shirley O’Dea at her houses in Riverton or Balaklava or her unit. Nonetheless, I accept that Jim McInerney did visit albeit not at the frequency he asserted. Mark McInerney gave evidence of never seeing Shirley O’Dea at any of their family gatherings contrary to Jim McInerney’s evidence. Mark McInerney further gave evidence of having had conversations with Shirley O’Dea only on approximately three to four occasions which suggests that he at least did not have regular contact with her. 137 Aside from his immediate family, and John Robbins, no witness reported ever seeing Jim McInerney with Shirley O’Dea at her house, unit or nursing home. Further, there was very little evidence of Shirley O’Dea speaking to others about Jim McInerney. There was no evidence that she considered him to be a closer friend or acquaintance than others such as the Lanes, Rosemary Galton or Ian Wedding. Shirley O’Dea’s health issues 138 Evidence was given about Shirley O’Dea’s medical issues by her treating General Practitioner, community nurses and nursing home staff. Dr Langton Nyoni & Wakefield Plains Medical Centre Notes 139 Shirley O’Dea’s medical records with the Wakefield Plains Medical Centre were tendered112 as was a letter from Dr Nyoni dated 14 November 2020.113 Dr Nyoni also gave evidence. I accept his evidence. 140 The patient health summary indicates that Shirley O’Dea had been a patient of the Wakefield Plains Medical Centre since at least 2000. Dr Nyoni was her principal treating doctor at the clinic from 2008. Shirley O’Dea suffered a number of medical conditions detailed in the notes. These included hypertension, peripheral vascular disease, back ache, spine and lumbar arthritis and recurring leg ulcers. 141 In early 2012 Shirley O’Dea suffered vision problems which required treatment by way of injection. On 3 September 2012, Shirley O’Dea attended for a driver’s medical assessment. Her vision was found to be good with glasses, but 112 Exhibit R2 87. 113 Exhibit R2 86. -- 34 of 99 -- [2024] SASC 110 McIntyre J 33 the plan was to limit her driving to within 10 kilometres of Balaklava. She was found fit to drive but she was advised not to drive if not feeling well and to report any driving difficulties. In January 2013, she was referred to an eye specialist with further vision difficulties. In a consultation on 17 June 2013, she was experiencing deterioration of the vision particularly in her left eye. On 29 August 2013 she attended for a further driver’s licence medical assessment. Her vision in her right eye was found to be very good but was reduced in the left eye. She was found fit to drive with the same restrictions and directions given on 3 September 2012. 142 In June 2014, Dr Nyoni noted that Shirley O’Dea had moved to the Mill Court units. He arranged for her to have Meals on Wheels owing to her health issues. At an appointment on 6 August 2014 her eyesight was noted to have deteriorated, in particular her left eye, where his notes record “just hazy objects – legally blind on left”. She was referred to an ophthalmologist for an assessment. Despite this on 3 September 2014, Shirley O’Dea was found fit to drive, limited within 10 kilometres of Balaklava if she wore her glasses. Ultimately, there was an appointment on 19 August 2015 where Dr Nyoni discussed driving with Shirley O’Dea. It was agreed that it was time that she gave up her licence. At a visit on 2 September 2015, Dr Nyoni noted that she was surrendering her driver’s licence. He further noted that her vision was further deteriorating. 143 On 4 September 2018, a referral was made by Dr Nyoni to community nursing in relation to Shirley O’Dea’s suffering from “chronic ulcers on the left and right ankles and the top of her foot”.114 On 25 October 2018 Suzanne McDonald from community nursing sent an email to Dr Nyoni advising him of various concerns that the visiting nurses had about Shirley O’Dea’s presentation. 144 As a result of this email, Dr Nyoni saw Shirley O’Dea on 29 October 2018 and administered a mini-mental state examination. She scored 24, which indicated that mild cognitive impairment was present. He diagnosed her as suffering from mild cognitive decline. 145 On 22 November 2018, Dr Nyoni saw Shirley O’Dea with Jack O’Dea. Jack O’Dea said that he had received a telephone call from Dr Nyoni asking whether he could attend an appointment with him and Shirley O’Dea. His recollection is that Dr Nyoni was concerned about Shirley O’Dea living independently in her unit following reports from nurses looking after Shirley O’Dea. At the appointment he recalls that Dr Nyoni was keen for him to encourage Shirley O’Dea to try respite care at the nursing home due to her decline and concerns for her safety. 146 On 3 December 2018, 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 114 Exhibit R2 83. -- 35 of 99 -- [2024] SASC 110 McIntyre J 34 cognitive impairment”,115 presumably repeating the information provided by Dr Nyoni. 147 Shirley O’Dea moved into the Mill Court Nursing Home in January 2019. Her physical and mental condition slowly deteriorated thereafter until her death. Community Nursing Notes and Evidence 148 Between 6 September 2018 and 3 January 2019, Shirley O’Dea was treated by community nurses who made a number of observations. These are recorded in the notes that were tendered.116 Two of the nurses gave oral evidence; Suzanne McDonald and Sonja Gangell. Both were impressive witnesses whose evidence I accept. 149 Suzanne McDonald is a retired registered nurse who gave evidence about the community health team involvement with Shirley O’Dea by reference to her own recollection and the community health team notes.117 Suzanne McDonald met Shirley O’Dea when she first started nursing in Balaklava in about 1980-1981 but did not have much to do with her professionally until more recent years. She would see her socially at the races or just in the street. She described Shirley O’Dea as:118 Very smart, always had her makeup on and sort of dressed old-fashioned in her David Jones skirt and very neat and tidy. 150 Shirley O’Dea was referred to community nursing in September 2018 for leg ulcers. Suzanne McDonald was then taken through the treatment notes which are a contemporaneous note of what occurred recorded at the end of each day when the nurse returned to the office.119 151 Sonja Gangell was one of the nurses who visited Shirley O’Dea to provide treatment for her leg ulcers. She gave evidence about her observations of Shirley O’Dea during this period in late 2018.120 Sonja Gangell described Shirley O’Dea as “always engaging”. Sonja Gangell had little independent recollection of her visits beyond her notes apart from one particular incident where she went to see Shirley O’Dea and there was a strong smell of smoke. 152 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 referred her to nursing. 153 Belinda Maywoidt visited on 26 September 2018 for wound care. She described Shirley O’Dea as being confused as to why she was visiting. Belinda Maywoidt described Shirley O’Dea as deteriorating since a previous 115 Exhibit R2 109 at 1880. 116 Exhibit R1 113. 117 T858-875. 118 T860. 119 T875. 120 T746-775. -- 36 of 99 -- [2024] SASC 110 McIntyre J 35 referral in terms of self-care. She described Shirley O’Dea as appearing dishevelled, frequently wearing food-stained clothing. Her home was unkept and there were food grime stains over the kitchen/dining area. On 28 September 2018, Sonja Gangell noted that Shirley O’Dea was surprised to see her. On 12 October 2018, Debra Gilding noted that Shirley O’Dea had no makeup on and shoes without stockings which was unusual. 154 Throughout the notes there are references to difficulties with Shirley O’Dea removing her dressings and using products such as Vaseline and Zinc cream on her ulcers. She had been instructed not to do this on several occasions. 155 On 15 October, Belinda Maywoidt described Shirley O’Dea as 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 said Shirley O’Dea was still in bed when she went to pick her up. 156 On 22 October 2018, Belinda Maywoidt described visiting and finding Shirley O’Dea sleeping in her chair. She was very difficult to rouse. A Meals on Wheels meal was sitting on the table, but Shirley O’Dea was unable to recall the delivery person visiting. Belinda Maywoidt assisted her to set the meal up, and then returned some two hours later to attend to the dressing. Shirley O’Dea did not recall that Belinda Maywoidt had been there earlier. 157 On 25 October 2018, Sonja Gangell attended and found Shirley O’Dea sitting in the lounge chair eating buttered bread and a cup of tea for breakfast. There was a strong smell of smoke in the unit. A very burnt saucepan was found in the sink and charcoal bits were in the sink drain. Shirley O’Dea could not explain the reason for the smell of smoke. A milk carton was left sitting on the top of the stove element. Sonja Gangell raised the issue of her next of kin and 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. 158 Sonja Gangell described a decline in Shirley O’Dea’s self-care:121 Q Now, you had seen Shirley a number of times before this visit. A Yes. Q How had she appeared to you during these earlier attendances. A Most of the time she was well dressed, she had a lot of pride in her appearance and her unit, she was a very tidy lady, she wore lipstick and pencilled eyebrows and her hair was always very well done. Q Was she like that in all of the attendances up until the time of the saucepan. 121 T753-754. -- 37 of 99 -- [2024] SASC 110 McIntyre J 36 A No. Q What was different about her. A Sometimes she would forget to pencil her eyebrows in, or they were pencilled in unevenly, her hair was sometimes dishevelled, and she wore stockings and very tight shoes, and I think there was a time there that she had put two pairs of stockings on. Q So, over the course of these attendances leading up to the saucepan there had been differences in the way she had appeared, is that right. A Yes. Q How would you describe what was happening overall with Shirley's appearance, to the best of what you could see, from the time you first started to see it, up until the time of the saucepan. A In my opinion there was a decline in her condition, some days she would be very lucid and aware of everything, at other times she was, yes, shocked to see us, or forgotten that we were going to turn up. Q When you say 'we', is that something that happened with you personally. A Yes, it did. 159 When the saucepan incident was reported by Sonja Gangell, Suzanne McDonald sent an email dated 25 October 2018 to Dr Nyoni outlining concerns over Shirley O’Dea’s safety and her recent presentation to community health nurses. Shirley O’Dea was described as being vague and confused most visits. Suzanne McDonald conceded, in cross-examination, that this overstated the case. She accepted that there were only four visits where Shirley O’Dea was noted to be confused.122 160 Belinda Maywoidt attended Shirley O’Dea on 29 October 2018, the same date Dr Nyoni administered the MMSE. She described Shirley O’Dea as being more alert than previous visits. Shirley O’Dea was oriented and able to recall her name. On 1 November 2018, Sonja Gangell noted that Shirley O’Dea was a little more lucid than the previous week. 161 On 7 November 2018, Sonja Gangell had a good discussion with Shirley O’Dea about moving into the nursing home at Mill Court. Shirley O’Dea said that Dr Nyoni suggested she would be safer, particularly at night. 162 On 19 November 2018, Sarah Young attended noting that Shirley O’Dea looked dishevelled, and that the unit was very dirty with bins overflowing, the sink full of dishes and milk left out. On 6 December 2018 Sonja Gangell noted that Shirley O’Dea was alert and engaging well in conversation. On 17 December 2018 it was noted that Shirley O’Dea smelled strongly of urine which was unusual for 122 T873. -- 38 of 99 -- [2024] SASC 110 McIntyre J 37 her as she was “very proud in her presentation”.123 On 27 December 2018 Sonja Gangell said that Shirley O’Dea was dressed in a dishevelled way and said that she was going to go to the chemist. Shirley O’Dea was dishevelled. Accordingly, Sonja Gangell visited again later that morning.124 On 31 December 2018 Suzanne McDonald attended at Shirley O’Dea’s unit to replace the dressing on her left ankle. She noted that Shirley had an appointment with Mill Court to look at a room and was seeing her GP the following Thursday. 163 Suzanne McDonald said that she discussed the nursing home with Shirley O’Dea because she was concerned that she was not safe in her unit. Suzanne McDonald suggested that she should try and see if she liked it, but Shirley O’Dea would “not have a bar of it”.125 Shirley O’Dea subsequently talked to Dr Nyoni and her next of kin and was persuaded to give the nursing home a try. 164 On 3 January 2019, Sonja Gangell noted that Shirley O’Dea said that she was considering not going to Mill Court. Sonja Gangell advised her that all the community health nurses highly recommended that she give the nursing home a trial. 165 Suzanne McDonald had a telephone conversation with Shirley O’Dea on 31 January 2019, where she said she was still in the nursing home and was going to stay there. Molly Christine Smallacombe 166 Molly Smallacombe was a nurse at the Mill Court nursing home from 2017 until May 2019 when she changed her employment. Her evidence was mostly related to the topic of witnessing Shirley O’Dea’s will on 26 December 2018 which I will deal with in context. She did however give some more general evidence about her observations of Shirley O’Dea. 167 Molly Smallacombe did not have much to do with Shirley O’Dea until she moved into the nursing home. I accept her description of Shirley O’Dea’s day to day activities. Specifically, that she was independent, able to carry on conversations, that she listened to the radio whilst knitting and required only limited assistance with activities of daily living. The assistance was “more to do with physical aspects”.126 As with evidence of other witnesses on this topic – this evidence is of limited assistance in determining questions of testamentary capacity. Rebecca Mary Hudson 168 Rebecca Hudson is a senior nurse at the Mill Court facility. She swore an Affidavit on 16 July 2023127 and also gave evidence. 123 T773. 124 T764; T773. 125 T871. 126 Exhibit R1 23 at [16]. 127 Exhibit R1 45. -- 39 of 99 -- [2024] SASC 110 McIntyre J 38 169 Rebecca Hudson had known Shirley O’Dea for many years having grown up in the same country area. In 2018 Rebecca Hudson became the care manager at Mill Court nursing home and in 2019 she was the acting CEO for approximately six months. In that capacity she arranged for Shirley O’Dea to sign a respite agreement on 4 January 2019128 and a resident and accommodation agreement on 7 March 2019129. Rebecca Hudson explained the usual process by which this occurred. The first agreement was signed by Rebecca Hudson as the authorised officer and the second as a witness for the CEO’s signature. I gather from her evidence that in the second case she did not have any involvement in explaining the document to Shirley O’Dea. In relation to the first Rebecca Hudson said that her recollection was not clear because she had signed very many of these agreements.130 I infer that her evidence was given on the basis of her usual practice rather than a memory of what actually happened. 170 Rebecca Hudson said that she went through the agreement page by page with Shirley O’Dea, clarified her name, date of birth and current address. She then would discuss where the room was, the fee per day and any additional fees. They would then sign, and Rebecca Hudson would explain that the agreement was not binding and that if Shirley O’Dea did not want to stay, she would not have to. 171 Rebecca Hudson gave evidence about the layout of the nursing home by reference to a floor plan.131 Shirley O’Dea was placed in Room 30 because she liked the sunroom that was attached to it. Although the nursing home did not have dementia ward, they commonly used specific rooms near the nurses’ station for people with dementia. Shirley O’Dea was not placed in one of those rooms. 172 Rebecca Hudson conducted assessments of patients’ needs at the nursing home including some for Shirley O’Dea. Not surprisingly she had no independent recollection of these given the number of assessments she undertook in the course of her duties. In effect, Rebecca Hudson’s evidence was if her signature was on the document, she did the assessment and stood by the content of the report. 132 173 Rebecca Hudson’s evidence was clear but is of little assistance given she did not give evidence of assessing Shirley O’Dea’s capacity in any meaningful way on the day she witnessed the respite agreement for Shirley O’Dea or at any other time. Julie-Ann Christie 174 Julie-Ann Christie was an enrolled nurse employed at Mill Court. She swore an affidavit on 16 July 2023133 and gave oral evidence about witnessing a respite agreement for Shirley O’Dea on 4 January 2019. Julie-Ann Christie did not have 128 Exhibit R1 46. 129 Exhibit R1 47. 130 T479. 131 Exhibit R1 48. 132 T487. 133 Exhibit R1 34. -- 40 of 99 -- [2024] SASC 110 McIntyre J 39 any independent recollection of doing this and could not recall Shirley O’Dea on the day.134 Accordingly I infer that the evidence given in her affidavit about this represents what usually happened as opposed to what she recalls happening. 175 Julie-Ann Christie also gave evidence about Shirley O’Dea from her observations when she visited Shirley O’Dea in her unit. Julie-Ann Christie said 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.135 176 I accept Julie-Ann Christies’ evidence, but it is of limited value in assessing testamentary capacity. Advance Care Directive and Power of Attorney 177 When Shirley O’Dea moved into the nursing home, the nursing home required both a signed advance care directive in case of medical emergencies, and an enduring power of attorney to be kept on file. 178 Jack O’Dea rang David Evans to find out if Shirley O’Dea had a power of attorney and was informed that she did not have one. David Evans told him that she did have an advance care directive, and that her friend Rosemary Galton was the primary decision maker. That document was dated 31 March 2016. For the first time, Jack O’Dea became aware of Gregory Anderson’s involvement in Shirley O’Dea’s affairs. He contacted Gregory Anderson’s firm and received an email dated 7 January 2019 advising that the firm had only prepared Shirley O’Dea’s will and not any other documents. 179 Jack O’Dea spoke to Rosemary Galton who said that she would prefer not to be the primary substitute decision maker and was happy for him to take that role. Jack O’Dea consulted David Evans who thought it appropriate to create a new document, David Evans therefore drafted an advance care directive to make Jack O’Dea the primary substitute decision maker. David Evans also prepared an enduring power of attorney to appoint Jack O’Dea as Shirley O’Dea’s attorney. Rosemary Galton went to Jack O’Dea’s home to sign the advance care directive on 15 January 2019. 180 David Evans then made arrangements to go to Balaklava to have the advance care directive and power of attorney signed by Shirley O’Dea on 18 January 2019. David Evans and Jack O’Dea travelled to the Balaklava nursing home together. Jack O’Dea mentioned Shirley O’Dea was “struggling” which David Evans took to be a reference to concerns about mental capacity. Accordingly, he was looking for signs of poor cognition. David Evans said that he was alert to the possibility 134 T320. 135 T321-323. -- 41 of 99 -- [2024] SASC 110 McIntyre J 40 that Shirley O’Dea lacked capacity and might not be able to proceed with executing the documents. 181 On arrival at the nursing home Jack O’Dea gave evidence that Shirley O’Dea recognised him but that she did not recognise David Evans. David Evans disputed Jack O’Dea’s contention that Shirley O’Dea did not recognise him. David Evans formed the view that she knew him well and recognised him immediately. David Evans agreed that Jack O’Dea introduced him, but the introduction was not, in David Evans’ view, prompted by Shirley O’Dea not recognising him or not recalling who he was. 182 Jack O’Dea left the execution of documents to David Evans. Jack O’Dea was not in the room when they were signed. David Evans set out in his affidavit what occurred when he met with Shirley O’Dea at the nursing home on 18 January 2019:136 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 136 Exhibit R1 25 at [15]-[19]. -- 42 of 99 -- [2024] SASC 110 McIntyre J 41 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. [emphasis added] 183 David Evans further says that in view of what Jack O’Dea had told him about Shirley O’Dea, he was looking for signs of confusion and deterioration in capacity. He was expecting to find that she had poor cognition but was pleasantly surprised to find this was not the case. In the time that he spent with her, he said he was pleased to observe very little change in mental acuity from the last time he had seen her in 2016. 184 Debra Swan is the Justice of the Peace who witnessed the power of attorney and advance care directive, prepared by David Evans on 18 January 2019. She gave evidence and her affidavit made on 23 March 2022137 was tendered. Debra Swan agreed that the evidence in her affidavit was copied from the proforma wording in the advance care directive document. 185 Debra Swan knew Shirley O’Dea prior to the meeting on 18 January 2019 as her mother had also lived in a unit at Mill Court. She did not know Shirley O’Dea very well but had tea with her on a couple of occasions. She formed the view that Shirley O’Dea was friendly and very sharp for a person of her age. When she met Shirley O’Dea at the nursing home, Shirley O’Dea remembered who she was. Shirley O’Dea appeared more physically frail, but she was not in “any dementia ward or anything like that.”138 Debra Swan was aware of the importance of the documents that she was witnessing, and that it was her obligation to make sure that Shirley O’Dea knew what she was signing. Debra Swan was with Shirley O’Dea for less than half an hour. Debra Swan said she went through the information statement about the advance care directive with Shirley O’Dea. She did not read it word for word but she asked questions to ascertain that Shirley O’Dea understood what she was signing and she said she understood it. The information sheet was not tendered in evidence. 186 Part of the advance care directive contains a statement of opinion – this was completed before Debra Swan signed it. She did not amend that proforma to delete the word “he” that appears twice. She agreed that this was an error. It is unclear 137 Exhibit R1 21. 138 T149. -- 43 of 99 -- [2024] SASC 110 McIntyre J 42 if Debra Swan turned her mind to the significance of the statement of opinion as the following passage of her evidence demonstrates:139 Q So when you signed that did you have regard to the statement of opinion that you signed. A Sorry? Q Did you have regard to the statement of opinion that you signed. A Which is the statement of opinion? Q The one that begins with 'I gave Shirley Margaret O'Dea -' A Yes. Q '- the advanced statement in my opinion' and then it simply says 'he/she'. A Yes. Q So that's an error, isn't it. A Yes, I just signed the form as it was given to me. So it was a pro forma. 187 The second and third respondent submit that Debra Swan’s evidence is of no probative value and is effectively neutral and unable to assist in any finding about capacity, I accept that submission. David Evans’ evidence is however more compelling, and I will deal with it in the context of a discussion about Shirley O’Dea’s testamentary capacity. The Expert Medical Evidence De bene esse rule 188 Three experts were called. Their expertise and experience was not challenged. Each gave evidence by reference to material provided to each of them. None of them examined Shirley O’Dea or had the opportunity to make observations of her. 189 Dr Innis provided one report dated 22 September 2023.140 Professor Rosenfeld provided two reports, the first dated 20 February 2023141 and a supplementary report dated 14 August 2023.142 Dr Lucas provided two reports. The first dated 9 February 2023143 and her second report dated 23 September 2023.144 The reports were admitted de bene esse as was some of the evidence of the experts. This was because all, to some extent, purported to give evidence about the ultimate question of testamentary capacity and, in Professor 139 T151. 140 Exhibit R2 101 DBE. 141 Exhibit R1 95 DBE. 142 Exhibit R1 96 DBE. 143 Exhibit R2 97 DBE. 144 Exhibit R2 98 DBE. -- 44 of 99 -- [2024] SASC 110 McIntyre J 43 Rosenfeld’s case, his reports were largely based upon affidavit material provided by Gregory Anderson which was not admitted during the trial or where Gregory Anderson’s oral evidence was materially different to that affidavit material. 190 I will admit the medical evidence received de bene esse on the basis that the opinions expressed by each of the doctors are of relevance and assistance to the Court. However, I specifically do not admit the evidence in relation to any opinions expressed by any of the medical experts as to the ultimate question. This is a question for the Court. It is a legal rather than a medical question.145 I also approach the evidence, particularly that of Professor Rosenfeld, with a degree of caution given the reliance upon the affidavit evidence of Gregory Anderson as to what he did in relation to taking instructions and executing the various wills.146 Professor Tully Rosenfeld – Consultant Geriatrician and Physician 191 In his first report Professor Rosenfeld stated as follows:147 Capacity to undertake any specific cognitive task varies according to the specific nature and the complexity of the task to be undertaken. This applies to arrange of decision-making tasks including those of a legal or financial nature. The presence of cognitive impairment or dementia does not, per se, extinguish capacity. Testamentary capacity requires the ability to undertake a number of specific cognitive tasks as well as the exclusion of mental disorders that would be likely to impair or adversely influence the performance of those tasks. The manifestations, symptoms and signs of brain disease and dementing illness, is variable from time-to-time depending on a range of factors. There are therefore periods of worsening and more lucid intervals. 192 There is general agreement between the experts as to these three propositions. 193 Professor Rosenfeld then provided a preliminary opinion based upon the materials that he had been provided with. He concluded on the basis of these documents that:148 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 onto develop dementia in the years that follow the diagnosis). It is likely that the deceased suffered from mild vascular brain disease. 194 Professor Rosenfeld went onto say that the presence of brain disease or MCI does not, of itself, preclude testamentary capacity but does indicate the need for 145 Moloney; Van den Heuvel v Tucker (2003) 85 SASR 512. 146 Moloney at [268]. 147 Exhibit R1 95 DBE at [6.2]. 148 Exhibit R1 95 DBE at [7.1.8]. -- 45 of 99 -- [2024] SASC 110 McIntyre J 44 care and appropriate discussion and exploration of a testator’s intent and reasoning at the time of making a will. 195 Professor Rosenfeld then examined the materials supplied by the first respondent and in particular an affidavit of Gregory Anderson that he identifies as being dated 3 February 2022, however that is the date it was filed in these proceedings. The affidavit is in fact dated 31 January 2022.149 On the basis of this material, Professor Rosenfeld considered that Shirley O’Dea understood that she was making a will and the nature, purpose and implications of doing so. He further 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, she was able to provide reasoning and resolve conflicting issues relating to the dispersal of her estate and in doing so made her own judgements about the issues about which she was concerned. Professor Rosenfeld further said that there was no evidence at the time of Shirley O’Dea’s instructions to Gregory Anderson, and subsequent signing of her wills, that she was influenced in her decision or that she was suffering due to a mental disorder, hallucinations or paranoia that would have poisoned her affections for those to whom she wished to include in her will. Of course, Professor Rosenfeld was proceeding on the basis that the information provided to him was correct. The affidavit material of Gregory Anderson however is problematic, as will be seen shortly. 196 In his second report Professor Rosenfeld expanded in more detail upon these opinions and reviewed further documents that were provided to him including the report of Dr Innis and Dr Lucas. He did not resile from his earlier expressed opinion. 197 In cross examination Professor Rosenfeld agreed that capacity is task specific and the capacity that might be required for an advance care directive might not be the same as is required when executing a will. He agreed that it was likely Shirley O’Dea was suffering from brain disease and that she had mild cognitive impairment. This meant that it was more likely Shirley O’Dea had reduced cognitive reserves which would impact on her ability to make a more complex decision.150 198 Professor Rosenfeld considered that Shirley O’Dea was likely suffering delirium associated with her leg ulcers rather than dementia as opined by Dr Innis. He gave the following evidence about the effects of these two conditions:151 Q I suggest that irrespective of whether a diagnosis of dementia is appropriate or delirium that would be the same conclusion that cognitive function and capacity would vary on any particular day. A I don't think you can refer to dementia and delirium in the way you have as very similar things. So I've made it clear in my knowledge and my experience that people 149 Exhibit R1 50. 150 T927. 151 T930-931. -- 46 of 99 -- [2024] SASC 110 McIntyre J 45 with dementia depending on the task can be impaired or can be - sorry, it's not extinguished. So somebody with dementia can make decisions, but on the other hand, if you are suffering from a delirium and the definition of delirium is that you have lost touch with your environment, you're confused, if you are delirious then I don't think you can make similar conclusions. So as an example if I can go on just a little bit to explain. So I am frequently involved in lawyers who come to us to say 'Does this person who you have diagnosed with dementia, mild even moderate they want to make a will' and I say well, the only way I can be certain, absolutely certain is that on the day they do the will that they are alert and oriented, they're not suffering from a delirium, they're not sick and that they understand what you're talking about and that I need to be able ideally to contemporaneously be there at the time. And so even a person with dementia if they are suffering from a delirium may become unable to make the simplest decisions let alone a will. So delirium is a serious - represents a serious deterioration of cognitive function. Q So my understanding of your answer is in respect of dementia especially I suggest classed as mild dementia there needs to be an assessment of functioning on the day. A Preferably. Q Now, my earlier suggestion to you was that in respect of the diagnosis of delirium there needs to be an assessment that the person is not suffering from delirium on that day. A Correct. Q So to that extent and noting that there are clinical or medical differences they are similar. A Yes. Dr Alicia Innis – Geriatrician 199 Dr Innis is a consultant geriatrician. She concluded in her report that: A diagnosis of dementia arises when an individual demonstrates cognitive decline in multiple cognitive domains which impact their functionality. It is my view from the resources that Ms O’Dea had evidence of short-term memory loss, evidence of impaired orientation to time, evidence of reduced judgment and evidence of a lack of insight as of 2018. Those around her had concerns for her abilities. She had also demonstrated reduced self-care in multiple domains including personal hygiene, home hygiene and medication management. She therefore would meet the criteria for a clinical diagnosis of dementia. 200 Dr Innis went on to set out the materials from the medical notes that underpinned her opinion. She further opined: 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 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. -- 47 of 99 -- [2024] SASC 110 McIntyre J 46 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.152 201 Again, I note the reliance on Gregory Anderson’s affidavit material. This is problematic given his subsequent evidence. 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. She did not accept his suggestion of an infection giving rise to delirium noting that there was nothing in the community nursing notes to suggest that this was so. 202 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 such that severe peripheral vascular disease would suggest that Shirley O’Dea likely had significant ischaemic heart disease and significant cerebrovascular disease also. She also disagreed with a number of other aspects of Professor Rosenfeld’s report for the reasons detailed in her responding report. She accepted that the nursing notes indicated that Shirley O’Dea was likely not vague and confused at all visits but noted that patients with dementia often experience fluctuations in their cognitive abilities. 203 Dr Innis described the MMSE test as very crude and inappropriate task for people with substantial evidence of cognitive function such as Shirley O’Dea. The MMSE is a screening test. Dr Innis said that, in the setting of suspected cognitive impairment, it has limited utility. She also said that the Aged Care Assessment report of mild cognitive impairment appeared to her to be based upon on that MMSE test score. ACAT staff are not qualified to make cognitive diagnoses. 204 Dr Innis accepted that an individual may have a medical illness that impacts cognitive function but still have the capacity to execute a will. Dr Innis commented upon Professor Rosenfeld’s first report and his conclusions153 based on Gregory Anderson’s affidavit of 31 January 2022154 as follows:155 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. 205 As will be seen Gregory Anderson’s affidavits paint a different picture to the reality. Further, given Jim McInerney’s involvement in the will making process for the December 2018 and January 2019 wills, Dr Innis’ views about Shirley O’Dea’s susceptibility to influence is of considerable concern. 152 Exhibit R2 101 DBE at 13. 153 Exhibit R1 95 DBE at [7.5] – [7.9]. 154 Exhibit R1 50. 155 Exhibit R2 101 DBE at 12. -- 48 of 99 -- [2024] SASC 110 McIntyre J 47 206 In cross-examination Dr Innis was challenged about her diagnosis of dementia in Shirley O’Dea’s case. She was not shaken in that diagnosis saying that there was ample evidence of short term memory loss, disorientation to time, reduced judgment, and reduced insight into her decline.156 Dr Sarah Lucas – Neuropsychologist 207 Dr Lucas is a clinical neuropsychologist specialising in neuropsychological assessment of brain injury, psychiatric conditions, and dementia. In her first report Dr Lucas identified several medical risk factors for cerebrovascular disease which may have been affecting Shirley O’Dea’s cognition although could not rule out the possibility of the early onset of Alzheimer’s disease. It was not possible to be more definite about diagnosis in the absence of further investigations and information. The medical notes included clear indications of a decline in memory and orientation especially for activities of daily living from September 2018 as documented by community nurses. Cognitive testing conducted at the time did not add much because of the nature of that testing. No other investigations were organised. It appears from the medical records that cognitive issues and confusion became more frequent throughout 2019 to 2020. 208 Dr Lucas expressed concern about the instructions alleged to have been given to Gregory Anderson in early December 2018, saying that they raise a significant concern that Shirley O’Dea was potentially suggestable at the time she made the December 2018 and January 2019 wills. She could not however provide a definitive opinion about capacity given the dearth of medical evidence. 209 In her second report Dr Lucas responded to the report of Professor Rosenfeld. She did not consider that Shirley O’Dea’s difficulties with cognition could be explained away by delirium or the effects of lack of sleep 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”. Dr Lucas opined that mild vascular brain disease as diagnosed by Professor Rosenfeld commonly caused psychological cognitive deficits in speed of information processing, complex attention, and frontal executive functioning. 210 In cross-examination, Dr Lucas agreed that she was not qualified to diagnose a medical condition such as dementia or delirium. She was however able to express an opinion about whether cognitive issues are consistent with dementia symptoms, and she was able to look at the functional implications of cognitive impairment.157 Dr Lucas maintained that she had doubts about Shirley O’Dea’s cognitive functioning in late 2018 early 2019.158 In particular she was concerned about Shirley O’Dea’s executive functioning. Executive functioning is important in determining testamentary capacity. In relation to the MMSE administered to Shirley O’Dea in December 2018 by Dr Nyoni, Dr Lucas agreed that it was fairly 156 T1043. 157 T951-2. 158 T954-5. -- 49 of 99 -- [2024] SASC 110 McIntyre J 48 normal for her age. Dr Lucas agreed with Dr Innis’ evidence about the utility of an MMSE and said that the MMSE does not assess executive functioning and is therefore of limited assistance. 211 Dr Lucas agreed that not all people with dementia lose testamentary capacity. She was asked about “supported decision-making” and gave evidence as follows:159 A Well, obviously it is where someone who may be assisting them with the decision- making process, in making sure that they are considering any relevant information, and making sure that any reasoning is sound and accounted for in terms of any cognitive issues a person may have. Q And that could be done by a doctor, you agree. A Yes. Q It could be done by a solicitor. A Yes. Q I think you would agree with me if I suggested to you that people with dementia or brain disease will fluctuate from time-to-time. A Yes. 212 Dr Lucas indicated that there were some indications that cognitive and functional decline was occurring in Shirley O’Dea’s case largely based on the observations of the community nurses who were visiting her. If a person with those indications was referred to her, Dr Lucas said that she would expect a range of medical tests to have been undertaken to determine if there was any medical condition to account for the observed symptoms. She would then do comprehensive cognition assessments to see if there is cognitive impairment beyond what would be expected for a person of that age. The patterns would also determine what type of dementia was involved. Given none of this had occurred it was not possible to be definitive about Shirley O’Dea’s condition, but Dr Lucas’ evidence suggests that there were a number of what she described in her report as “red flags” relating to Shirley O’Dea’s cognition particularly at the time of her wills in December 2018 and January 2019. Gregory Anderson’s involvement Gregory Anderson 213 As I have previously indicated, Gregory Anderson was the solicitor who prepared each of the subject wills. Gregory Anderson swore two affidavits, one dated 31 January 2022160 and one dated 14 July 2023.161 These were tendered with some deletions after rulings on objections. He also gave evidence. 159 T952. 160 Exhibit R1 50. 161 Exhibit R1 51. -- 50 of 99 -- [2024] SASC 110 McIntyre J 49 214 Gregory Anderson is an experienced solicitor who was involved in the preparation of wills throughout his career. He has now retired. In his first affidavit162 Gregory Anderson said that he would at all times consider the test for testamentary capacity set out in Banks.163 He then went on to explain how he did this as follows:164 5. When administering capacity tests, it was my practice to always question the Willmaker about the size and nature of a Willmaker’s estate. I addition, I always attempted to ensure that I saw the Willmaker alone. If for any reason that was not possible (or practical), it was always my practice to ensure they demonstrated to me that they were independently answering all necessary questions and engaging in what I considered, in my professional opinion as a lawyer having regard to both the relevant tests and my professional experience, an appropriate level of dialogue and a demonstrate satisfactory level of insight into their own financial and other affairs. This would include, for example, asking questions that were open ended and were designed to illicit (sic) responses that would address the test criteria in Banks v Goodfellow in a manner suitable to the Willmaker. I used these questioning techniques in conjunction with my own prior knowledge of the Willmaker’s circumstances in order to satisfy myself of the level of the Willmaker’s cognitive capacity and his/her ability to remember relevant facts such as family members and potential claimants to their estate for example. I also used such techniques to ensure the Willmaker understood the contents of their Will and to be satisfied myself of how the particular Willmaker might justify their decision making capacity /reasoning and their ability to evaluate possible outcomes and responses. 6. By way of example, my practice was to ask questions that would enable a Willmaker to demonstrate that they understood the value of certain assets or gifts compared to other assets or gifts such as the value of land or real property. I also asked questions to the effect of why a Willmaker was choosing to leave a certain gift to one person and not to another person including why they were seeking to change a provision of their Will from an earlier version or indeed a gift that was previously make. I always sought to have Willmakers describe their reasoning by asking questions such as how a certain person or potential beneficiary might feel if they learned of the change in a gift being made etc. I did so in order to in consider a Willmaker’s insight and reasoning and whether the reasons provided were based on sound reasoning or whether there may have been some indication of lack of capacity, for example delusional beliefs or irrational statements that might require further inquiries. 7. It was also my practice that if I was in doubt as to a Willmaker’s testamentary capacity after having considered the above testing methods that I would seek an opinion from their medical practitioner, usually their general practitioner at first instance. 8. I would also always take steps to satisfy myself that a Willmaker was not being seemingly unduly influenced by other persons in making or changing a Will. I ensured that any instructions I took always reflected their own true will and wishes. 215 This is an orthodox and appropriate approach to the task of taking instructions for a will. Regrettably, as will be seen, there is no evidence that Gregory Anderson 162 Exhibit R1 50 at [4]. 163 Banks. 164 Exhibit R1 50 at [5]-[8]. -- 51 of 99 -- [2024] SASC 110 McIntyre J 50 adopted this approach in his dealings with Shirley O’Dea, particularly in relation to the very significant changes embodied in the December 2018 and January 2019 wills. 216 Gregory Anderson relocated to Clare from Port Lincoln in early 1998. He met Shirley O’Dea through David Evans who referred Shirley O’Dea to him when she was considering changes to her will in about 2015-2016. David Evans ceased practice in Clare at about the same time. Gregory Anderson says that whilst he was based in Clare, he would visit Balaklava one day each fortnight and see clients there by appointment. Shirley O’Dea was one such client. He saw her at her Mill Court unit and then at the nursing home. 217 In his second affidavit Gregory Anderson said that the first will prepared by him for Shirley O’Dea was dated 1 September 2016.165 He corrected his first affidavit concerning a will dated 30 March 2016 saying that this will was in fact signed on 30 March 2017. He said that this will amended some pecuniary legacies in the 1 September 2016 will but is otherwise in the same terms. I will deal with this in context, but this evidence is incorrect. The wills are identical. 218 Several of Gregory Anderson’s files were tendered as exhibits.166 These are characterised by haphazard filing in no particular date order. They also lack comprehensive, or in some cases any, file notes of attendances that are noted in correspondence and on the time sheets for Gregory Anderson. I will deal with the files and Gregory Anderson’s evidence in relation to each will. Gregory Anderson said that his practice was to dictate his handwritten notes and that once these were typed, he would throw the handwritten notes away.167 He could not explain why on several important occasions there were no notes of his attendance, either handwritten or typed. 219 Gregory Anderson gave evidence about what he described as his “conservative” method of time recording from which I infer he was indicating that he did not accurately record the time he spent with clients such as Shirley O’Dea and that he generally under recorded the amount of time that he spent with them.168 220 Gregory Anderson spoke about his usual practice when seeing a new client. The information that he said he would obtain included details of family members, details of their property, bank accounts and chattels of value. He would take comprehensive instructions as to gifts and, in some circumstances, why those gifts were to be made. He conceded that he did not do that with Shirley O’Dea when he first saw her because that had been attended to by David Evans. Further he said 165 Exhibit R1 51 at [5]. 166 Exhibit R2 30; Exhibit R2 53; Exhibit R2 55; Exhibit R2 57. 167 T562. 168 T559; T561-563. -- 52 of 99 -- [2024] SASC 110 McIntyre J 51 that he assumed Shirley O’Dea had capacity because of the referral by David Evans.169 Shirley O’Dea was, at the time, 91 or 92 years of age. 221 David Evans had provided a draft will as part of the referral. Gregory Anderson said he used this to prepare an identical will following his meeting with Shirley O’Dea at which he says he ascertained that the instructions provided to David Evans were still current and accurate.170 In fact the will prepared by Gregory Anderson was not identical to David Evans’ draft. There were some changes to the minor legacies and the clause relating to Jim McInerney having the first option to lease or share farmland given to the Church was deleted. Gregory Anderson also redrafted the clause relating to the gift of farmland to the Church and the condition relating to the proceeds of any sale of the land being used for the “O’Dea Home”.171 As there was no file note of Gregory Anderson’s meeting with Shirley O’Dea, and he had no memory of it, Gregory Anderson was unable to explain why these changes were made other than to say that he must have had instructions from Shirley O’Dea to delete the reference to Jim McInerney being a share farmer,172 and to change the minor legacies. The redrafting exercise was a question of style. 222 Gregory Anderson said that his usual practice after taking instructions for a will was to send a draft to the client by post for them to consider. He would make an appointment time to attend with the original will and would then arrange for its execution at the appointment. This process was adopted for the first will he prepared for Shirley O’Dea. That will was signed at Shirley O’Dea’s Mill Court unit on 1 September 2016 with Gregory Anderson and Rebecca Hudson as witnesses. Gregory Anderson gave evidence about this attendance as follows:173 Q Do you recall what actually occurred otherwise at the attendance. A No. Q What would be your usual practice in respect of such an attendance. A Obviously to go through the will with the testator and to satisfy myself that she understood the terms and provisions of the will and then obviously I made an assessment about her general demeanour in terms of capacity and then we'd proceed. Q How do you generally go through the will, ... I might paraphrase what you just said but, what is the process you undertake as a matter of your practice to go through the provisions of a will such as that executed on 1 September. A I would usually paraphrase each clause and I would get my client to actually read the clause. Q So you wouldn't read it aloud. 169 T564. 170 T563. 171 T564-563. 172 T808. 173 T572-573. -- 53 of 99 -- [2024] SASC 110 McIntyre J 52 A I would paraphrase it and get the client to read the paragraph and then I would ask him or her whether that was correct. Q So you would ordinarily ask a client to read the documents themselves. A Yes, not aloud, just to themselves. Q And do you say that that occurred on this occasion with Shirley. A I can't truthfully say that that happened, no. 223 Gregory Anderson was then questioned about Shirley O’Dea’s eyesight. He was not aware that she had a significant vision impairment, but it was obvious to him that she had to hold a document close to her face in order to read it. He could not recall her doing this on 1 September 2016 nor could he recall her saying that she had read the will. He agreed that he did not know if Shirley O’Dea read the will or not. 224 Gregory Anderson said that, after the will was executed, he took it back to the office, copied it and sent a copy to Shirley O’Dea. He then, in accordance with his usual practice, stored the original in the firm’s vault in Port Lincoln. He visited the Port Lincoln office twice a month and took documents requiring storage with him. He explained the process by which such documents were recorded on a card index system and later on an electronic system. The original of this will has not been located nor has any record of it being deposited in the vault.174 Laura Jane Sullivan 225 Laura Sullivan was Gregory Anderson’s personal assistant. She worked at his firm from 2015 until approximately 2020. She swore an affidavit on 29 July 2023175 and gave evidence.176 Her evidence was confined to the work she did on the files of Shirley O’Dea for Gregory Anderson. Laura Sullivan’s evidence dealt with the way in which Shirley O’Dea provided instructions to Gregory Anderson and the way in which Gregory Anderson maintained his files in connection with Shirley O’Dea. 226 Laura Sullivan never met Shirley O’Dea in person but spoke to her on many occasions by telephone between 2017 and 2019. Shirley O’Dea would ring to make appointments or confirm appointments with Gregory Anderson and sometimes to discuss changes to her wills. Shirley O’Dea would either post handwritten notes with changes she wished to be made or give them to Gregory Anderson during their meetings. She would sometimes make changes over the telephone – Laura Sullivan did not ask why she was making the changes; that was between Shirley O’Dea and Gregory Anderson. I infer from what Laura Sullivan said in her affidavit and in oral evidence, that she was referring to the 174 Exhibit R2 103. 175 Exhibit R1 99. 176 T1003-1034. -- 54 of 99 -- [2024] SASC 110 McIntyre J 53 regular changes to the monetary bequests made by Shirley O’Dea rather than the gifts of farming land. Circumstances of each contested will March 2017 will 227 Shirley O’Dea provided instructions to Mr Anderson in a meeting at her unit on 16 March 2017 to change a number of the pecuniary legacies in the 1 September 2016 will. Gregory Anderson recorded the changes to the legacies on a copy of the September 2016 will and, on his return to the office, dictated a file note which recorded these changes. 228 A draft will which reflected these changes was prepared and sent to Shirley O’Dea under cover of a letter dated 17 March 2017.177 In the covering letter, Gregory Anderson confirmed that he was able to see Shirley O’Dea in Balaklava on 30 March 2017 to sign the will subject to any changes. 229 A will was executed on 30 March 2017. The will was witnessed by Annette Barker and Gregory Anderson. Annette Barker recalled witnessing a will for Shirley O’Dea but did not recall the date or any details of that occasion. 230 Gregory Anderson’s practice was to take an execution copy of the will with him to the appointment. Laura Sullivan agreed that the draft will that was sent to Shirley O’Dea on 17 March 2017 was different to the will that was executed on 30 March 2017. The executed document was apparently a copy of the September 2016 will. Laura Sullivan could not cast any light on why this was other than to say that Shirley O’Dea may have called in after seeing the draft to change instructions, but she conceded that there was nothing on the file indicating that further instructions were provided.178 Gregory Anderson did not say that any further instructions were provided. I also note that, if Shirley O’Dea provided instructions that were reflected in the document, there was no need to execute it because it was in identical terms to the September 2016 will. 231 Gregory Anderson said that he did not have a clear recollection of attending on Shirley O’Dea on 30 March 2017. He could not explain the process by which Shirley O’Dea considered the will. He did say that Shirley O’Dea read the will and that he did not. It was put to him that neither of them read the will given that no one apparently noticed that the will was dated 2016 rather than 2017 and that none of the legacies had changed. Gregory Anderson said he could not answer that. He conceded that the will was a copy of the September 2016 will and did not reflect the instructions that Shirley O’Dea gave him on 16 March 2017. 179 He was then asked as follows:180 177 T580; T1010-1012. 178 T1007-1012. 179 T581-583. 180 T582. -- 55 of 99 -- [2024] SASC 110 McIntyre J 54 Q So you're suggesting it's possible that despite the fact that she gave you instructions to change certain legacies you've then acted on that, gone to see her for that purpose, she nevertheless has gone 'No, I'm happy to just re-execute the same will that I executed on 1 September'. A Clearly she didn't pick up the changes that she had instructed me to make. Q No, and clearly you didn't either. A No. Q And in fact you just put it to her and said 'This is the will, sign it', didn't you. A I don't know what I said. Q Clearly you didn't bother to have her check to see whether in fact this will reflected her instructions. A I can't say. Q Because that's just how you do things, Mr Anderson, isn't it, 'Shirley, this is the will, please sign' and she did trusting you, didn't she. A I can't recall. 232 Later in cross-examination Gregory Anderson said that he had, as was his usual practice, engaged in capacity testing of Shirley O’Dea. His evidence was not entirely clear whether he was referring to the day of execution or the day he took instructions, but he gave evidence as follows:181 Q You had not engaged in any assessment of capacity of her on those occasions. A I had. Q You say you had. A Yes. Q You say that you did on 30 March 2017. A I can't recall specifically that meeting. Q Tell us what you say you did to assess capacity in relation to a will which appears that neither of you actually read. A My meeting with her clearly was such that I was able to, simply by conversing with her, come to an understanding of her mental state, her capacity to understand the document, and the changes that she had made were not significant changes other than to some minor cash legacies. Q Her capacity to understand the document; how on 30 March 2017 did you assess her capacity to understand the document. 181 T586-589. -- 56 of 99 -- [2024] SASC 110 McIntyre J 55 A I can't recall. Q Did she know she was signing a will. A Yes. Q Well that's a start. A What did you do then. Did you say anything once she realised she was signing a will. Q I can't recall specifically what the conversation was. A Given that she didn't read its contents, and indeed neither did you, you couldn't possibly have made an assessment of her capacity. A I can't say that she didn't read the contents of the will because her practice was to do so. Q Then you say she's executed the same will that she'd executed six months before, knowingly. A I don't say that. That's what happened. Q If she'd read it surely she would have said 'Greg, these aren't my instructions. I wanted you to change all this.' A That's possible, but she didn't say that. Q No, so either she didn't understand what she was signing or she didn't read it. That's got to be the case. A It's possible that because Shirley was so focussed on these cash legacies, and she would keep changing her mind almost from week to week, it's possible that she herself was satisfied with the contents of the will, having overlooked the fact that other instructions had been given. 233 Gregory Anderson’s evidence was most unsatisfactory. I find that Shirley O’Dea did not provide any further instructions following provision of the draft will. I further find that Gregory Anderson took a copy of the September 2016 will in error. No one amended the date from 2016 to 2017. Plainly, neither Gregory Anderson nor Shirley O’Dea read this will at the time of signing or subsequently. Neither noticed that the will was a copy of the September 2016 will rather than the draft sent to Shirley O’Dea earlier in the month. I find that, contrary to his evidence, Gregory Anderson did not go through the will with Shirley O’Dea nor did he undertake any form of capacity testing. He has no note of this nor does he have a recollection of it. I consider it likely that he assumed she had read the draft will that he had sent previously and simply asked Shirley O’Dea to sign the document he produced to her. 234 A copy of the executed will was sent back to Shirley O’Dea under cover of a letter dated 3 April 2017. If she read that copy, which is not clear, Shirley O’Dea -- 57 of 99 -- [2024] SASC 110 McIntyre J 56 clearly did not appreciate that it did not reflect her instructions to Gregory Anderson. February 2018 will 235 Gregory Anderson opened a new file after apparently meeting with Shirley O’Dea on 9 November 2017.182 He was unable to identify where on his file the instructions he received on that occasion were located. There is no typed file note. Gregory Anderson was able to identify his handwriting on a copy of the March 2017 will. He said that this may have been his notes of that meeting. There are also a number of notes in Shirley O’Dea’s handwriting on the file. It appears that, between 9 November 2017 and February 2018, there were six sets of instructions provided by Shirley O’Dea to Gregory Anderson relating to the pecuniary legacies,183 indeed it appears that Shirley O’Dea gave two different sets of instructions about pecuniary legacies within the space of about seven days. 236 Gregory Anderson gave evidence that Shirley O’Dea was “almost obsessed with reviewing and changing her will”.184 He did not see this as reflecting a concern about her capacity rather he thought it was her nature to be “a bit capricious”.185 He conceded that he did not turn his mind to the third limb of the Banks v Goodfellow test outlined in his first affidavit. At no stage did he have knowledge of why Shirley O’Dea removed and added certain beneficiaries. He accepted that prior to February 2018 there is evidence that Shirley O’Dea’s memory was impaired.186 Gregory Anderson gave evidence for example that Shirley O’Dea provided him with instructions on five occasions between November 2017 and February 2018, that the same legatee should be removed.187 237 Gregory Anderson attended on Shirley O’Dea in Balaklava on 15 February 2018. He had no independent memory of the execution of the will. He witnessed the will and arranged for Gillian Saunders to be the other witness. He could not recall who Gillian Saunders was. In accordance with instructions received in Gregory Andersons’ office on 7 February 2018 some handwritten alterations were made to the will, and these were initialled by Shirley O’Dea and both witnesses. 31 May 2018 Meeting: Gregory Anderson and Shirley O’Dea 238 Gregory Anderson received further instructions from Shirley O’Dea concerning changes to the minor legacies in her will at a meeting on 31 May 2018.188 She did not give instructions relating to the farming land. Consistent with these instructions he provided a draft will to Shirley O’Dea on 182 T595-596. 183 T614. 184 T611. 185 T608. 186 T616. 187 T614. 188 T619-620. -- 58 of 99 -- [2024] SASC 110 McIntyre J 57 8 June 2018.189 That draft did not change the gifts of farming land as reflected in the February 2018 will, but rather dealt with changes to the pecuniary legatees. Accordingly, significant change to the gift of the farming land occurred after that date. The reasons for and the timing of the instructions for that change are opaque. 22 June 2018 Meeting: Jim McInerney and Shirley O’Dea 239 Jim McInerney says that he visited Shirley O’Dea on 22 June 2018. It appears from the Telstra records that there was no contact by telephone between Shirley O’Dea and Jim McInerney from 1 January 2018 until 22 June 2018. It is unclear how this meeting came about. Jim McInerney’s evidence on this topic is not helpful. In his first affidavit Jim McInerney stated:190 In around mid-June 2018 Shirley asked me on the telephone if she could see me. I travelled from my home at Riverton to see Shirley at her unit. I arranged to have my car serviced at Balaklava that day and spent about two and a half hours with her. 240 Jim McInerney’s oral evidence-in-chief was that he visited Shirley O’Dea on 22 June 2018 as arranged and she told him that she would like to leave the land that was being left to the Church to him.191 Under cross-examination Jim McInerney changed his evidence to suggest that rather than receiving a telephone call from Shirley O’Dea, he had just dropped her in to see her at some stage prior to 22 June 2018 and she asked him to come back again on 22 June 2018, but she did not tell him what for.192 He then referred, for the first time whilst giving evidence, to his calendar for the 2018 financial year, which he said recorded the visit to Shirley O’Dea on 22 June 2018 coinciding with a car service. The calendar was produced at the request of the second respondent.193 The calendar recorded “Ranger 8.45. Visit Shirley about changing wills?” for 22 June 2018. This was inconsistent with his evidence that Shirley O’Dea had not mentioned the purpose of the meeting on 22 June 2018 prior to that meeting. This is the only visit to Shirley O’Dea that is recorded on the calendar. 241 Jim McInerney 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. This does not sit comfortably with the fact that Gregory Anderson had taken instructions from Shirley O’Dea on 31 May 2018 with no indication that she had been thinking of changes to the farming land. In any event, in his first affidavit194 Jim McInerney said that he was told by Shirley O’Dea that she would like to leave her land to him rather than the Church. Jim McInerney said that Shirley offered him a number of 189 T622. 190 Exhibit R1 9. 191 T51. 192 T82. 193 Exhibit R2 24. 194 Exhibit R1 9. -- 59 of 99 -- [2024] SASC 110 McIntyre J 58 reasons to explain her intentions. He said that he precisely recalled those reasons and enumerated these in his affidavit as follows:195 (a) 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 my family and I would do: (b) that her family had been an intergenerational farming family and wanted the land to stay in another intergenerational farming family: (c) that she believed the Catholic parish and 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: (d) she was most unimpressed and disturbed by cases of child abuse that had been publicised around that time within the Catholic Church. 242 In his evidence-in-chief Jim McInerney said that Shirley O’Dea was concerned that the Church would sell the land and the funds would finish up in Adelaide. She brought up the matter of abuse within the Church that had come to light at about that time.196 The timing of these asserted comments is not however consistent with John Robbins’ evidence, or that of Father Boog, that abuse in the Church had been a topic of discussion with the O’Dea sisters as far back as the mid-1990s. It is further inconsistent with David Evans’ evidence that Shirley O’Dea had included the gift of land to the Church in her wills since 2001 and, following the O’Dea sisters raising a concern about the prospect of the Church selling land with David Evans in 2007, Shirley O’Dea’s wills included the clause relating to the use of any such proceeds. 243 Jim McInerney said that in the same conversation he asked her what Jack O’Dea would think of her intentions. Shirley O’Dea became annoyed and said words to the effect of “It is none of Jack’s business, what belongs to me I will do with as I please. Jack is only a third cousin and I have only known Jack in comparatively recent times”.197 Jim McInerney’s 10 August 2018 call to Gregory Anderson 244 Jim McInerney telephoned Gregory Anderson on 10 August 2018. Jim McInerney’s evidence on the topic of the reason for this call was confusing. He initially said that Gregory Anderson was not expecting his call,198 but later said that he thought Gregory Anderson had already spoken to Shirley O’Dea and knew why he was ringing.199 He then said that he understood Shirley O’Dea had organised to meet Gregory Anderson to discuss certain matters. 195 Exhibit R1 9 at [12]. 196 T51-52. 197 T53. 198 T63. 199 T65. -- 60 of 99 -- [2024] SASC 110 McIntyre J 59 245 Gregory Anderson’s file note suggests that the call from Jim McInerney was unexpected. Gregory Anderson gave evidence summarising his written file note which was annexed to his affidavit sworn on 31 January 2022.200 He was asked about this in his examination in chief:201 Q Mr Anderson, I asked you a question about a conversation you had on 10 August 2018 with Mr McInerney, can you please describe the nature of that conversation. A Mr McInerney 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 Mr McInerney 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 Mr McInerney. 246 Gregory Anderson’s file note was a contemporaneous note. I accept that it was an accurate record of matters discussed with Jim McInerney. The file note indicates that Jim McInerney told Gregory Anderson that he had had several conversations recently with Shirley O’Dea about the gift of land to the Church. This is to be contrasted with Jim McInerney’s evidence that he had only had one discussion with Shirley O’Dea on 22 June 2018. The file note further states the reason Jim McInerney advanced for why Shirley O’Dea was apparently contemplating changing the gift of her land from the Church to Jim McInerney was Shirley O’Dea’s concern over diminishing numbers in the Riverton Church and fears the “gift would end up passing to the Adelaide Church”. The note does not refer to abuse within the Church as a reason. It is further plain from the note, and Gregory Anderson’s evidence, that Jim McInerney was keen to avoid any suggestion that he had brought “undue influence” to bear in relation to the gift of farmland to himself. 247 Gregory Anderson also recorded Jim McInerney as saying he had made an attempt to speak with the applicant, Jack O’Dea, to “warn him” that Shirley O’Dea was considering changing the gift of farming land that Jack O’Dea was to have 200 Exhibit R1 50. 201 T537. -- 61 of 99 -- [2024] SASC 110 McIntyre J 60 and instead to give that land to the Lanes. This is contrary to some of Jim McInerney’s evidence. 248 Jim McInerney said that during his meeting with Shirley O’Dea on 22 June 2018 there was no mention of the gift to the Lanes, rather it was only to do with land being left to the Church. Jim McInerney was cross-examined about the topic of the Lanes. He said that there was never any discussion about the gift to the Lanes until a meeting with Shirley O’Dea on 6 December 2018.202 That evidence should be contrasted with Jim McInerney’s evidence-in-chief where he said that Shirley O’Dea told him about her concerns about the gift to the Lanes around August 2018. He said she told him that she was going to discuss that matter with her solicitors.203 249 Jim McInerney was taken, in cross-examination, to the portion of Gregory Anderson’s note that referred to the gift to the Lanes.204 He said that Gregory Anderson must have misconstrued something he said as he definitely did not say that. Jim McInerney’s evidence on this topic is far from clear as can be seen from the following passage of evidence:205 A I have stated several times that that is a total mistake because that was never the case. It was a case of warning or saying to him that Shirley was considering land that was being left to Dr Lane to me. Q You appreciate, Mr McInerney, this is very important evidence in connection with this case - A I know, and that's why - Q - and I respectfully ask you not to editorialise your responses but simply answer my questions. Did you say words to the effect, to Mr Anderson in this telephone call, that you had attempted to speak to Mr O'Dea to warn him that Shirley was considering leaving the gift, which was otherwise going to Mr Jack O'Dea, to Dr Lane. Did you say that. A I did not. He may have misconstrued something but I definitely did not say that. Q Now, look, you used the word 'misconstrued' then. Is it your evidence you did not say that. A I did not say it. Emphatically, I say I did not say that. Q Well, can you recall this conversation well - is it possible you may have said that. A No, because - not the slightest time did that ever, ever enter my mind or was ever suggested. It's totally false. 202 T205. 203 T57. 204 T210. 205 T210-211. -- 62 of 99 -- [2024] SASC 110 McIntyre J 61 Q Well, then, if that is right, it is a matter of great curiosity, is it not, that a solicitor, having received a telephone call, should make a telephone note of it, which says that you had accounted to him a desire to warn Jack O'Dea about what Ms O'Dea, Shirley O'Dea, had said to you. A That is totally incorrect. I did say toward Jack O'Dea that the Church was intending land that was left to Dr Lane to being a life interest. I certainly did not say what you are suggesting there. 250 This is curious evidence in view of Gregory Anderson’s evidence (summarised later in these reasons) that the “life interest” was his suggestion to Shirley O’Dea and that he first made it at a meeting in December 2018. I reject the suggestion that Jim McInerney said anything about a life interest in a telephone conversation with Jack O’Dea in mid-2018. 251 Gregory Anderson’s evidence about the discussion concerning the Lanes in this call does not assist. He was asked as follows in cross examination:206 Q And in this note you have recorded that Mr McInerney wished to provide a warning to Jack O'Dea about what Shirley O'Dea had said to him about a proposed change to her gift. A That's what the note says. Q Is that not a remarkable to have been told by Mr McInerney. A I didn't form a view. Q But you're the lawyer acting for Ms O'Dea. A Yes. Q You're the one whose her fiduciary, you can only act in her best interests. A Yes. Q And yet you're being told by Mr McInerney not only does Ms O'Dea wish to give the land that she had given in her numerous earlier wills to the Church to Mr McInerney, but Mr McInerney wants to warn Jack O'Dea that Shirley is contemplating making another change, and you don't record in this note that that's not something that Mr McInerney should do. A He was telling me about a meeting that he'd had with Shirley. Q And he told you in the same telephone discussion that he'd had another telephone discussion, or had attempted to speak with Jack O'Dea, for the purpose of warning Jack O'Dea that Shirley was thinking of making a change to her will about land that was left to Jack O'Dea in her will. Didn't that strike you as unusual. A Well, I guess if he was the party affected by the proposed change, then I don't think it would be. 206 T816-817. -- 63 of 99 -- [2024] SASC 110 McIntyre J 62 Q But Mr McInerney wasn't affected by that, was he. A No. Q And a person who makes a will should do so freely. A Well, I didn't have instructions. Q Exactly. A And neither did I request the telephone call. Q Exactly, but you were told during the course of this telephone call that Mr McInerney was wishing to provide a warning to Jack O'Dea, to warn him against a risk that Shirley proposed to change her will. A I don't know what he said to Jack O'Dea. Q No, but you've recorded that he attempted to speak to Jack O'Dea, quote 'to warn him' that Shirley was considering leaving that gift to Dr Lane. A Yes. 252 It is important in the context of this evidence to ascertain what, if anything, was said to Jack O’Dea by Jim McInerney before his conversation with Gregory Anderson. Telephone Conversations between Jack O’Dea and Jim McInerney 253 Jack O’Dea, in his first affidavit207, said that he had two telephone conversations of relevance with Jim McInerney. Neither of these occurred in 2018. Towards the end of 2015 Shirley O’Dea informed him that Jim McInerney wanted to lease her farming land. Jim McInerney telephoned him shortly after that conversation. Jack O’Dea told him that he did not have any authority to talk to him about Shirley O’Dea’s affairs and ended the conversation. 254 On 5 July 2020 Jack O’Dea said Jim McInerney rang him out of the blue. In that conversation Jim McInerney told him that Shirley had asked him to go with her to a meeting with solicitor Gregory Anderson at the offices of Mellor Olsson and that he had telephoned Gregory Anderson to ask if he could attend the meeting “as an observer”. He said that Gregory Anderson told him he could attend the meeting. Jack O’Dea did not know what meeting Jim McInerney was referring to, what it was about or when it was. He did not know why Jim McInerney wished to attend the meeting or if he did in fact attend. Jim McInerney also told Jack O’Dea that Shirley O’Dea had been concerned about farming land she owned going to the Church and said something about current media topics within the Church. Jim McInerney asked Jack O’Dea whether he knew what was in Shirley O’Dea’s will. He said he did not. Jim McInerney then asked if he wanted to know what was in the will. Jack O’Dea said he did not as it would be inappropriate. 207 Exhibit A 6. -- 64 of 99 -- [2024] SASC 110 McIntyre J 63 Jim McInerney told him in conversation that he had “looked after the O’Dea brothers”. Jack O’Dea recalled being confused about why Jim McInerney had telephoned him. 255 Jim McInerney, in his first affidavit,208 denied telephoning Jack O’Dea to discuss Shirley O’Dea’s affairs in 2015 but said that he possibly telephoned Jack O’Dea in 2015 to suggest that Shirley O’Dea discuss arrangements with him. He did try to have conversation with Jack O’Dea in 2020 to discuss Shirley O’Dea’s will with him so Jack O’Dea was aware of her wishes. He tried to explain to the best of his knowledge what Shirley O’Dea had told him about gifts of farmland including that the gifts of farmland to the O’Dea brothers had not changed. Jim McInerney vehemently denied saying that he “had looked after the O’Dea brothers” or words to that effect. Jack O’Dea dismissed his invitation to discuss the will. 256 Jim McInerney also said that he had a conversation with Jack O’Dea in 2018 but it was short as Jack O’Dea expressed to him that he did not want to discuss Shirley O’Dea’s will and hung up on him. Jack O’Dea was cross-examined about whether he had any telephone conversations with Jim McInerney in 2018. He did not recall having any conversations. It was put to him that he had at least two, but he did not remember those. He did recall a telephone call from Jim McInerney in 2018 just before he went to Vietnam. Jim McInerney wanted Jack O’Dea’s contact details in case anything happened to Shirley O’Dea whilst he was away. Jim McInerney told him that he and Shirley O’Dea had discussed all of her funeral arrangements.209 257 Jack O’Dea was cross-examined about his telephone conversation with Jim McInerney in 2020. He agreed that Jim McInerney had said that he had been to see the solicitor with Shirley O’Dea and that he said that she was concerned about the Church and issues that were happening with the Church. He did not recall him saying that Shirley O’Dea wanted the land to be well-cared for and that the McInerney family would do so. He did not recall Jim McInerney saying that Shirley O’Dea wanted it to remain with an intergenerational farming family or that she was concerned about the abuse in the Church. Jim McInerney did not tell him that gifts of farming land to him and his brother had not changed, rather Jim McInerney said words to the effect - “I looked after the O’Dea brothers”.210 258 Jim McInerney was cross-examined about his call to Jack O’Dea after his discussion with Shirley O’Dea in June 2018. Contrary to this evidence-in-chief, Jim McInerney suggests that rather than one telephone call that there were several. He said that he tried to contact Jack O’Dea throughout the course of 2018 and through until the middle of 2020. He never actually spoke to Jack O’Dea because Jack O’Dea refused to speak to him. Jim McInerney’s purpose in ringing was that 208 Exhibit R1 9. 209 T684. 210 T686-687. -- 65 of 99 -- [2024] SASC 110 McIntyre J 64 he wanted Jack O’Dea to know what changes Shirley O’Dea was making to her will so that he could speak to Shirley O’Dea and talk to her about any concerns he may have had. Jack O’Dea “totally chose to ignore [McInerney’s] approaches, said it was none of his business”.211 Jim McInerney did not tell Jack O’Dea what the changes were because he did not want to know anything about it. Jim McInerney thought he had made at least three attempts to contact Jack O’Dea between 22 June 2018 and 25 January 2019. He said that there were phone calls after that period as well. He only spoke to Jack O’Dea briefly on each occasion because he was “very, very uncooperative”.212 259 Jim McInerney was also cross-examined about the telephone conversation he had with Gregory Anderson in August 2018.213 I accept that Gregory Anderson’s file note accurately records that conversation. Jim McInerney agreed that Jack O’Dea was overseas between 24 July 2018 and 7 August 2018 and that it was likely that the call to Jack O’Dea, referred to in the conversation with Gregory Anderson, occurred between 22 June 2018 and 7 July 2018 or between 7 August 2018 and 10 August 2018.214 260 Jim McInerney was handed his affidavit215 and particularly directed to paragraphs 15 to 17 of that affidavit where he outlined his conversation with Shirley O’Dea and his attempts to contact Jack O’Dea. The affidavit suggested that the catalyst or reason for him contacting Jack O’Dea was because Shirley O’Dea had informed him of her intentions in relation to the proposed farming gifts at both the 22 June 2018 meeting and another occasion. He said that the affidavit was not expressed as it ought to have been when it said “after I saw [Shirley O’Dea] a few more times, she again raised with me her intentions in relation to the proposed gift of some farming land to me”. This is of course contrary to his evidence that he only spoke to Shirley O’Dea once, on 22 June 2018, on the topic of her will. 261 Jim McInerney was then asked about his reasons for contacting Jack O’Dea after his 22 June 2018 meeting with Shirley O’Dea in the light of his evidence that Shirley O’Dea said words to the effect that “it was none of Jack’s business what [she does] with [her] will”:216 Q On that basis, there was no purpose then, for contacting Jack, was there. A I was uncomfortable, knowing what Shirley was doing, and Jack didn't. I've said this on numerous occasions. Q And you contact, on your evidence, Mr O'Dea, and he said words to the gist of 'It's nothing to do with me, I'm not authorised to talk to you'. 211 T66. 212 T238. 213 T210-213. 214 T241. 215 Exhibit R1 9. 216 T244-245. -- 66 of 99 -- [2024] SASC 110 McIntyre J 65 A Are we talking about the conversation that took place on 5 July? Q We'll talk about 5 July shortly. I'm talking about this short conversation that took place between those dates we've been talking about. A He told me on one of the occasions I was interfering in an old lady's affairs. Q Right. A He told me what Shirley did was none of his concerns, she could do as she pleased. That's basically it in a nutshell at that stage. Q You acknowledge, don't you, that Jack has no authority over Shirley's affairs in terms of her will. A No, he didn't. I felt uncomfortable, as I've said, that I knew what Shirley was doing and he didn't. 262 Jim McInerney was then cross-examined about the telephone conversation he had with Jack O’Dea in 2020. First, he gave somewhat contradictory evidence about who made the call as follows: 217 Q And then you spoke to Mr O'Dea in the middle of 2020. A I did, because I became extremely frustrated because he ignored every attempt I made to keep him informed. I spoke to some mutual friends who lived alongside Jack O'Dea, when Jack was my accountant in Riverton many years ago. They were still quite friendly with Jack and I had informed them - because they were actually our closest friends - and Cate Aitchison said 'Ring Jack, tell him you'll take him out to dinner and discuss the whole thing in a civilised manner'. I did just that and, as usual, Jack said he wanted to know nothing about it and certainly didn't want to do that. Q Why did you need to speak to Jack in 2020. A I think you'll find that Jack rang me on that date. Q I thought you just said you spoke to your friends, they suggested that - A Yeah, I did. Q And as a result of that, you rang Jack, didn't you. A I'm not absolutely sure of that, but if you refer to affidavit I'll say one way or the other. Q I'm sorry, I thought your evidence just was that you wanted to resolve something with Jack, you spoke to your friends about it, they said you should ring him and take him out to dinner. Are you then saying he, by coincidence, rang you. A I would need to check that in my affidavit. I have said it there. But I definitely spoke to him - or Jack is saying that it's the 5th of 2020 - the 5th of July 2020, I think, is it? 217 T167-168. -- 67 of 99 -- [2024] SASC 110 McIntyre J 66 263 It was put to Jim McInerney that, again, he had no reason to speak to Jack O’Dea in 2020. Jim McInerney said that he was still trying to inform Jack O’Dea so that he would know about the contents of Shirley O’Dea’s will. He would have liked Jack O’Dea to have spoken to Shirley O’Dea about that topic. He maintained that he felt uncomfortable about knowing what was in the will. He then went on to say:218 Q And you still felt uncomfortable by July 2020. A Yes, I did. I felt very uncomfortable for a fairly long period of time. Q But you believed there was nothing wrong with the wills. A I don't think there was anything wrong with the wills at all. Q You believed that Shirley knew what she was doing. A I well and truly know - believe that Shirley knew what she was doing. Q You believe that Shirley had capacity when she made the wills. A I do believe Shirley had capacity when she made the wills. Q So, in fact, there is no reason for you to ring Jack O'Dea at all. A Well, then, if that's the case, there was no need for Jack O'Dea to have challenged the wills. Q In fact, you were ringing Jack because you were worried that the wills were, in fact, not valid. A Certainly not the case. Q And you wanted to square things up with him in order to ensure that he would not challenge the wills. A That is certainly not the case. 264 Jim McInerney was asked about Jack O’Dea’s evidence that he said he had “looked after the O’Dea brothers”. He said he found it offensive and the “greatest load of rubbish”.219 He adamantly denied it.220 Jim McInerney also gave evidence as follows:221 Q Did you say that the gifts to him and his brother had been protected. A I did say that. Q And why did you say that Mr McInerney. 218 T169-170. 219 T172. 220 Ibid. 221 T250-251. -- 68 of 99 -- [2024] SASC 110 McIntyre J 67 A Because he'd made this ridiculous statement that somewhere along the line that I'd looked after the O'Dea brothers and I couldn't see how he could say that when nothing in the will had changed regarding he or his brother. Q So forgive me, the statement, when did you first know about the statement, looking after the O'Dea brothers. A In Jack's first affidavit, dated some time in June - Q 2021. A - '21. Q But we are talking about a conversation that occurred on 5 July 2020. A Yes. Q So I re-put the question: why did you say to Jack that the gifts of farmlands to him and his brother had not changed. A Because I knew they hadn't. Q And how did you know. A Because Shirley told me what changes she was making to the will. Q But in that conversation, the purpose of which you're saying because you want Jack to know what's happened, why did you specifically tell Jack that his, the gifts of land to him and his brother had not changed, what was the purpose of that. A Because that was the case. Game, set and match. There was significant changes being made to Shirley's will, none of them involving Jack or his brother. 265 Jim McInerney continued to emphatically deny that he followed his comments to Jack O’Dea about he and his brother’s gifts not changing with “I’ve looked after the O’Dea brothers”.222 Even if he did not make that statement, I consider that Jim McInerney’s assumption that it was his role to tell Jack O’Dea about the contents of Shirley O’Dea’s will and whether or not the changes she had made to the will had any impact on Jack O’Dea and his brother demonstrates Jim McInerney’s willingness to become actively involved in the will making process. 266 It is clear that Jim McInerney made some attempts to speak to Jack O’Dea about Shirley O’Dea’s will. Whilst Jack O’Dea does not recall Jim McInerney contacting him after the June 2018 meeting, I consider that it is likely that there was such a call in view of Gregory Anderson’s file note. However, it is clear from both the file note, and Jim McInerney’s evidence, that little of substance was discussed. 267 Jim McInerney is very critical of Jack O’Dea for not wishing to discuss these matters with him. In my view it was entirely proper that he declined to discuss 222 T253. -- 69 of 99 -- [2024] SASC 110 McIntyre J 68 Shirley O’Dea’s financial and testamentary matters with Jim McInerney. On his evidence, Jim McInerney persisted with his efforts to speak to Jack O’Dea even though Jack O’Dea resisted these efforts and in the face of his evidence that Shirley O’Dea told him that her will was none of Jack O’Dea’s business. There was no obvious reason for Jim McInerney to do this other than that he was attempting to avoid a suggestion that he had influenced Shirley O’Dea in relation to the gifts to him. The fact that Jim McInerney made calls of this type to both Shirley O’Dea’s solicitor and the executor of her will is troubling. 23 August 2018 meeting 268 Gregory Anderson’s file note dated 10 August 2018 concluded with the words “I undertook to contact [Shirley O’Dea] to arrange a meeting for 23 August 2018”. This was the date for Gregory Anderson’s next regular visit to Balaklava. Either he or someone from his office arranged a meeting with Shirley O’Dea on that date. It does not appear that Shirley O’Dea prompted the meeting.223 I find that it was instigated by Jim McInerney’s phone call and then arranged by Gregory Anderson or his office. 269 Gregory Anderson said that before the meeting he did a property location search with the Lands Titles Office as he wanted to see where the lots of land are, and he wanted Shirley O’Dea to identify them for him.224 270 Gregory Anderson’s typed note of the meeting on 23 August 2018,225 is very sparse referring only to a discussion about “changes to her existing will”. It does not say what occurred at the meeting nor is there any indication as to what changes were discussed. There is no handwritten note. Mr McInerney was not present at this meeting. 271 In Gregory Anderson’s affidavit dated 3 February 2022, he said Shirley O’Dea provided extensive instructions at the meeting on 23 August 2018. In his oral evidence-in-chief, he summarised those instructions as including the topic of the gift to the Lanes, concerns about the farming land going to the Church and it being be sold, concerns about the reputation of the Church following the Royal Commission in Child Sexual Abuse and her apparent confidence that Jim McInerney would not sell the land.226 None of this was recorded in his file note of that meeting. 272 Gregory Anderson said in his evidence-in-chief that he thought the meeting went for about 45 minutes. There is no note of the time taken on his file note. Gregory Anderson recorded two units, or 12 minutes, on his time recording ledger for that appointment. Even accepting Gregory Anderson’s evidence about his conservative approach to time recording, this is a significant discrepancy between his evidence and his records. I consider it likely that Gregory Anderson does not 223 T811. 224 T539 225 Exhibit R2 15 at 421. 226 T538-541. -- 70 of 99 -- [2024] SASC 110 McIntyre J 69 know how long the meeting took but appreciated that 12 minutes is a very short time in which to take detailed instructions from an elderly person and to follow the approach that he outlined in his affidavit. 273 In cross examination, Gregory Anderson ultimately conceded that he did not recall what he was told on that day. He also agreed that no extensive instructions were given to him at that meeting, and that his earlier evidence to that effect was incorrect.227 Gregory Anderson was unable to explain what changes were discussed other than to say he believed Shirley O’Dea gave him some changes to pecuniary legacies. He was unable to identify what they were or indeed point to any record of those changes.228 He said that he did not get any specific instructions to change the will on that occasion.229 274 Gregory Anderson took the Land Titles Office search to the meeting because he wanted Shirley O’Dea to be able to identify where the land that was the subject of the will was located.230 His evidence-in-chief was that Shirley O’Dea was able to identify her land. He marked the plan in a highlighter and wrote some road names on it, given to him by Shirley O’Dea. Gregory Anderson said that the fact that Shirley O’Dea was able to identify the land and name the roads on which the land was located, was a clear indication to him that she was “aware of the discussion and clear in her intentions”.231 In cross-examination however Gregory Anderson conceded that Shirley O’Dea did not identify the entirety of her land. She only identified one block of land when she owned three.232 His explanation of why this occurred was unconvincing. It certainly does not suggest that Shirley O’Dea was alert to the extent of her property as he indicated in his affidavit and evidence-in-chief. 275 Gregory Anderson also said that there was some discussion about Dr Lane and that Shirley O’Dea was also considering making some changes to that gift. The highlighter delineation on exhibit R2 15 does not include allotment 407 which was the subject of the gift to the Lanes. Gregory Anderson conceded that he did not know where allotment 407 was.233 It appears that either Shirley O’Dea did not know or had not shown Gregory Anderson the location of allotment 407. Gregory Anderson accepted, in cross-examination,234 that he had not been told by Jim McInerney that Shirley O’Dea was considering changing the gift of lot 407 to the Lanes. To the contrary, he was told by Jim McInerney that Shirley O’Dea was thinking of enlarging that gift to the detriment of Jack and Anthony O’Dea. Gregory Anderson said that if he had been told by Shirley O’Dea that she was 227 T643. 228 T813. 229 T540. 230 T539. 231 T540-541. 232 T636-639. 233 T812. 234 T817. -- 71 of 99 -- [2024] SASC 110 McIntyre J 70 thinking of making a change of the gift to the Lanes he should have made a note. There is no note to that effect. 276 Gregory Anderson said it was possible that Shirley O’Dea gave him some notes of her own, but he did not have any particular memory of this. Gregory Anderson’s file, as it was tendered, was haphazard and disorganised. It seems from the content of the file, and the evidence of Laura Sullivan, that it is likely the only written instructions Gregory Anderson received at this meeting, if any, were some handwritten notes by Shirley O’Dea to change various cash legacies set out in the will. There is no note in that written list of any change to the gifts of the farmland. 277 Gregory Anderson did not have a clear recollection of the meeting with Shirley O’Dea on 23 August 2018. I reject Gregory Anderson’s evidence that the meeting took 45 minutes as reconstruction. I do not know how long the meeting lasted. Further, I do not accept that Gregory Anderson undertook the process that he outlined in his first affidavit.235 If he did it is remarkable that he made no notes. It does not appear that Gregory Anderson took any steps following the meeting to prepare a new will. This would be a significant oversight if he had been given firm instructions in view of the fact Shirley O’Dea was then aged 93. Accordingly, I infer that Shirley O’Dea did not provide any instructions at that meeting that she wished to make any change to her will relating to the farmland. Indeed, the state of the evidence is such that I cannot be satisfied as to what was discussed at that August 2018 meeting. In particular, there is no cogent evidence that there was any instruction given by Shirley O’Dea about gifting land to Jim McInerney on that occasion because of concerns about the Church selling the land or concerns about child abuse scandals. Nor is there any evidence of any instructions being given in relation to the gift of land to the Lanes, either to enlarge it at the expense of the O’Dea brothers as the note of the phone discussion with Jim McInerney suggested or to alter it in the manner that occurred subsequently. Jim McInerney’s November call to Gregory Anderson 278 Nothing further occurred in connection with Shirley O’Dea’s matter until Jim McInerney telephoned Gregory Anderson on 26 November 2018. Jim McInerney explained his telephone call on the basis that Shirley O’Dea asked him to attend a meeting with Gregory Anderson at her unit on 6 December 2018. He wished to ask Gregory Anderson whether it was appropriate that he should do so.236 279 It is not at all clear how or when the 6 December meeting was arranged. There is no evidence that Shirley O’Dea or Gregory Anderson had arranged to meet on 6 December 2018 prior to Jim McInerney’s telephone call. Gregory Anderson’s file does not contain any record of a telephone attendance on Shirley O’Dea nor any correspondence with her following the meeting on 235 Exhibit R1 50. 236 T69. -- 72 of 99 -- [2024] SASC 110 McIntyre J 71 23 August 2018. The next item on Gregory Anderson’s time recording ledger is a telephone attendance on Jim McInerney on 26 November 2018. 280 Gregory Anderson’s second affidavit states that he had a telephone conversation with Mr McInerney on 26 November 2018.237 The only notes he made were to record details of Jim McInerney’s name, physical and postal address, and telephone number. The note of those items is undated and written on the brief typed file note of Gregory Anderson’s attendance on Shirley O’Dea on 23 August 2018. Gregory Anderson could not recall any other details of that call. He did not recall if Jim McInerney asked his permission to attend a meeting with Shirley O’Dea.238 281 On the same day as the call from Jim McInerney, Gregory Anderson undertook some land title searches in relation to sections 407, 405, 431 and 480. The ledger card for this file sets out that the telephone attendance was recorded first followed by the title searches. I consider it likely that these land title searches were prompted by Jim McInerney’s call. I further consider it likely that the appointment for meeting on 6 December 2018 was either made during that call by Jim McInerney or alternatively prompted by the call by Jim McInerney on 26 November 2018. I reject Jim McInerney’s evidence that the appointment had already been made. It is far from clear why Gregory Anderson spoke to Jim McInerney about Shirley O’Dea’s affairs and why this call prompted both the Land Titles Office searches and the appointment. Jim McInerney had no obvious claim to be acting on Shirley O’Dea’s behalf. Again, Jim McInerney’s telephone call shows a concerning level of involvement in Shirley O’Dea’s testamentary affairs. Gregory Anderson, Shirley O’Dea and Jim McInerney’s 6 December 2018 meeting 282 Jim McInerney says that he was present at a meeting on 6 December 2018 between Shirley O’Dea and Gregory Anderson at Shirley O’Dea’s unit. Jim McInerney said that he was there at Shirley O’Dea’s insistence and that Gregory Anderson had consented to him being present on condition that he did not “participate in any way, shape or form.”239 He says that he did not participate in any discussions about her will at the meeting.240 283 Gregory Anderson stated in his first affidavit that he saw Shirley O’Dea alone at all times.241 In his evidence, Gregory Anderson said that he could not recall Jim McInerney being present at the meeting. Gregory Anderson said his usual practice is that he would not allow other parties to be involved in the will making process particularly if they may be interested in the terms of the will. He agreed that it would have been wrong and inappropriate for him to have seen 237 Exhibit R1 51. 238 T555-556. 239 T214. 240 T98 and T555. 241 Exhibit R1 50. -- 73 of 99 -- [2024] SASC 110 McIntyre J 72 Shirley O’Dea with Jim McInerney present.242 Despite this, Gregory Anderson said he had a vague recollection of Jim McInerney being present at some stage,243 and that it is possible Jim McInerney was present, albeit he made no note of that fact. 284 Jim McInerney says that he was present on this occasion and Gregory Anderson cannot exclude the possibility. Accordingly, I find that, irregular though it was to have a potential beneficiary present at a meeting to discuss significant changes to a will in his favour, this is what occurred. 285 Gregory Anderson said that the meeting lasted 18 minutes and that he did not make any contemporaneous record of that meeting. The time recording made in Gregory Anderson’s ledger suggests that the meeting was for 15 minutes. Gregory Anderson’s recollection of the meeting was vague and he cannot now remember what had occurred other than what is in file notes he dictated the following day; 7 December 2018.244 There are two logged file notes; a shorter version and a longer version.245 Gregory Anderson was asked why this was. He said he did not know why other than to say he “must have read my initial file note and decided that it wasn’t a complete enough description of the events of the meeting.”246 Gregory Anderson’s evidence as to his reasons for preparing two notes and the content of each note was unsatisfactory. The notes do not reflect the level of detail that one would expect in the circumstances. Neither file note sets out that Jim McInerney was present at the meeting, nor do they record the time Gregory Anderson spent with Shirley O’Dea. This is an extraordinary oversight in the circumstances. The notes did not assist Gregory Anderson to give evidence about what occurred in the meeting either as to the precise instructions he was given nor the steps he took, if any, to comply with the Banks tests for testamentary capacity that his first affidavit suggested he did “at all times”. 286 The first file note recorded that Jim McInerney was “a distant relative” who carried on a primary production business near Riverton. Gregory Anderson said that Shirley O’Dea may not have said Jim McInerney was a distant relative and that he might have assumed that.247 Gregory Anderson was asked in cross- examination whether this was the first occasion that Shirley O’Dea told him she wished to leave land to Jim McInerney.248 He replied, “that would appear to be so”.249 Of, course Jim McInerney, who was not present at that meeting, contends that he understood this topic was discussed on 23 August 2018. This can only be speculation on his part. 242 T820. 243 T553. 244 T544; T181. 245 Exhibit R2 15. 246 T826. 247 T649. 248 T650. 249 T606. -- 74 of 99 -- [2024] SASC 110 McIntyre J 73 287 The first file note does not set out any reason for changes to the disposition of farming land whereas in the second it says:250 She now wishes to leave the land previously gifted to the Catholic Church to James Vincent McInerney. Jim 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 spend in places other than Riverton. She also indicated that she is very keen for the land not to be sold and to remain farming land and knows that if she gifts some of the land to Jim it will certainly remain within the McInerney family on a long term basis. 288 Gregory Anderson’s second file note, but not the first, then goes on to say:251 Jim 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. 289 I assume that this is a reference to the telephone conversation between Jim McInerney and Gregory Anderson on 10 August 2018 as opposed to the 26 November 2018 call. This is a curious note for Shirley O’Dea’s solicitor to make. One would have thought that Jim McInerney’s prior call would have been grounds for Gregory Anderson to have been particularly alert to the possibility of undue influence. Rather than causing him to consider this issue, it appears Gregory Anderson took the phone call as confirming that Shirley O’Dea had this significant change in mind for some time notwithstanding there was no suggestion of this when he took her instructions in May 2018 or apparently on 23 August 2018. 290 Both notes indicated that “we’ also discussed the gift of section 407 to the Lanes and the value of that gift. Jim McInerney’s involvement in any discussion is far from clear. Gregory Anderson said that he offered Shirley O’Dea an alternative to an outright gift to the Lanes.252 He was unable to explain why he provided that alternative. He said that he was surprised that she was making a gift to her former professional adviser and that it struck him as “being extraordinarily generous”.253 Gregory Anderson does not appear to have taken into account, or even been aware of, the longstanding friendship between the Lanes and Shirley O’Dea. He appeared to regard them as acquaintances notwithstanding the terminology of the prior wills including those drafted by him. Gregory Anderson says that he also told Shirley O’Dea that his estimate of the value of the land was in the order of $650,000. This was a considerable underestimate in the light of the 250 Exhibit R2 15. 251 Ibid. 252 T823. 253 T822. -- 75 of 99 -- [2024] SASC 110 McIntyre J 74 valuation evidence. The value at the time was in fact around $1,205,000. Shirley O’Dea did not apparently pick this up. He then said:254 A Well part of the discussion was I offered her an alternative to an outright gift to the Lanes. Q With great respect, why was that relevant. A Well because she obviously wanted to make a gift to the Lanes, so I gave her an alternative - Q Sorry, I'm not making myself clear. Why was any alternative at all under consideration. A I was offering her an alternative which in my opinion was less problematic than the outright gift of farming land. Q Mr Anderson, with great respect, you have never previously given - A No. Q - said that that was a problematic gift. A No, I know, I didn't, no. Q And at this meeting on 6 December, where there is a controversy about who was present, you say it was appropriate at that time, for the first time, to make some observations about this gift. A Well because she was considering making changes to the gifts of her farming land. Q And didn't you think that it was an extraordinarily generous gift to be giving the land that was otherwise going to the Church to Mr McInerney. A Not really because he was a farmer, he was a longstanding family friend, and she was disillusioned with the Catholic Church. Q And you also recorded that the Lanes were 'both financially well off'. A Look, that was cheeky. I don't know what their financial position was. I had driven past their very nice house in Balaklava and I guess I assumed most retired medical practitioners are comfortably off. 291 Gregory Anderson agreed there was no discussion about the value of the life interest and that Shirley O’Dea would not have had any idea of what the gift was worth either. Both notes say: 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 Jim McInerney. 254 T823-825. -- 76 of 99 -- [2024] SASC 110 McIntyre J 75 292 Gregory Anderson agreed that he had not turned his mind to whether Jim McInerney was financially well off. It also appears from Gregory Anderson’s evidence and the file notes that he did not discuss with Shirley O’Dea the value of the land that she had previously been gifting to the Church. The valuation evidence suggests it was valued at around $2,960,000 at the time making this a very substantial gift to make to Jim McInerney particularly in view of the fact the will also gifted him the reversion of the life interest. 293 Gregory Anderson was asked whether he spoke to Shirley O’Dea about the previously recorded concern about the Church selling land. In particular the fact that her previous wills had included conditions regarding the use of the proceeds of sale if the Church sold the land to build the “O’Dea Home”. His evidence on that topic was vague and unsatisfactory.255 I conclude that he did not discuss this topic with Shirley O’Dea. 294 Jim McInerney was at odds with Gregory Anderson. Jim McInerney said that the only thing that occurred at this meeting was that Shirley O’Dea confirmed instructions she had previously given to Gregory Anderson. He said that Gregory Anderson asked Shirley O’Dea whether she wanted to change anything in the will that he had drafted. Shirley O’Dea said that she was happy with everything and that it should go ahead to be finalised. Jim McInerney could not recall precisely what Gregory Anderson said and what Shirley O’Dea said. Much of his evidence was to the effect of what Gregory Anderson “would have” said certain things and that Shirley O’Dea merely agreed with what Gregory Anderson said. Jim McInerney suggested that Gregory Anderson was referring to notes or a copy of a draft will point-by-point.256 295 Jim McInerney said that Gregory Anderson did not go through the list of minor beneficiaries because very little, if anything had changed there. Rather Jim McInerney said Gregory Anderson went through the involvement of himself, the Church, Dr Lane, and the O’Dea brothers. In terms of what he said about the Church, Gregory Anderson had been given reasons why Shirley O’Dea was changing her will, but that topic was not specifically brought up on 6 December 2018 in front of Jim McInerney. Shirley O’Dea just said yes except when it got to the change relating to the Lanes, she said she was very pleased because it was getting her “out of a very sticky situation”.257 296 Jim McInerney conceded that there was never any doubt that Shirley O’Dea said that the Lanes were her friends.258 Jim McInerney said he recalled that on 6 December 2018 Gregory Anderson said in his presence that the Lanes are financially well off. He was asked as follows:259 255 T651-652. 256 T191. 257 T192. 258 T222. 259 T228. -- 77 of 99 -- [2024] SASC 110 McIntyre J 76 Q Was that an unprompted remark that Mr Anderson made. A It was in relation to the discussion taking place between he and Shirley regarding the land that had previously been left to Dr Lane outright. Q That answer is not clear. You simply said it was in relation to discussion I had been having with Shirley. But you've given evidence you had no discussions with Ms O'Dea between 22 June and this meeting on 6 December. That's the case isn't it. A I have said that all along. I had no indication whatsoever of any changing of land from Dr Lane outright to he having a life interest. I had no input or knew nothing about that until 6 December. Q The evidence that you gave yesterday was at the commencement of the meeting on 6 December Ms O'Dea said 'More than happy with everything for it to go ahead and be finalised.' A Yes, and that would have been in relation to what had taken place on 23 August. Q I'm not asking you to talk about what happened on 23 August because you weren't present on 23 August were you. A No, I wasn't. Q So how do you know what happened on 23 August. A I don't. 297 Jim McInerney said that Gregory Anderson did not say anything about the value of a life interest being left to the Lanes. 260 298 Jim McInerney’s evidence about the meeting on 6 December 2018 is unreliable. There were no notes prepared for the meeting on Gregory Anderson’s files nor was there a draft will. Moreover, Gregory Anderson gave evidence that he did not receive any specific instructions to change Shirley O’Dea’s will at the August meeting; rather his evidence was that the instructions were provided at the meeting on 6 December 2018. I reject Jim McInerney’s evidence that Gregory Anderson was going through notes or a will point-by-point, as reconstruction. 299 Gregory Anderson’s evidence as to what if any instructions were provided to him by Shirley O’Dea, and in what circumstances, at the meeting on 6 December 2018 was also unreliable and unsatisfactory. It is noteworthy that at the time this meeting occurred Shirley O’Dea was 94 and was suffering from a number of physical ailments. She was receiving regular visits from community nurses to deal with her leg ulcers. Those nurses had reported concerns about Shirley O’Dea to her general practitioner. Dr Nyoni considered her to be suffering mild cognitive impairment following an assessment on 29 October 2018. Dr Nyoni had discussed the possibility of respite care in the nursing home with 260 T232. -- 78 of 99 -- [2024] SASC 110 McIntyre J 77 Shirley O’Dea and Jack O’Dea. He had arranged for an ACAT assessment on 3 December 2018. Gregory Anderson’s notes contain no reference to Shirley O’Dea’s presentation nor to any steps he took to assess her testamentary capacity. This is a remarkable oversight for an experienced legal practitioner particularly in circumstances where it appears that Shirley O’Dea was providing instructions to change longstanding testamentary gifts of significant value. Gregory Anderson did not apparently undertake any assessment of the type he described in his affidavit of 31 January 2022.261 It is of particular concern that Gregory Anderson permitted Jim McInerney to be present at this meeting despite his acknowledgment that this was inappropriate and did not apparently consider the issue of whether any undue influence was being brought to bear on Shirley O’Dea. Follow up to the 6 December 2018 meeting 300 Following the meeting on 6 December 2018 Gregory Anderson drafted a new will for Shirley O’Dea. Jim McInerney gave evidence that Gregory Anderson delivered two wills that he had drawn up and read to Shirley O’Dea on 10 December 2018. He was not present when this occurred, but he contends that Shirley O’Dea told him that:262 Mr Anderson had delivered two wills to her and he had gone through those wills with her again and left. … left them with her. 301 Jim McInerney could not explain why Gregory Anderson delivered two wills. He contended that one was a draft and that is the one that was signed first by mistake. I will deal with this evidence in the context of the 26 December 2018 will but, for present purposes, I indicate that I do not accept this evidence. I consider it likely that Jim McInerney’s evidence is a reconstruction and an effort to explain what happened in relation to the 26 December 2018 will. Gregory Anderson’s file does not record a personal attendance, rather it indicates that he posted a draft will to Shirley O’Dea under cover of a letter dated 10 December 2018. This is consistent with his usual practice of sending a draft prior to his personal attendance. There is no copy of the draft will on Gregory Anderson’s file. He gave evidence that he assumes that it is the same will as that signed on 26 December 2018 with the draft stamp on it.263 Further, when shown the original wills dated 26 December 2018264 and 25 January 2019265 Jim McInerney conceded that the 26 December 2018 will had fold marks consistent with being posted in an envelope whereas the January will did not.266 261 Exhibit R1 50 at [4] – [8]. 262 T175. 263 T799. 264 Exhibit A 3. 265 Exhibit A 2. 266 T177-178. -- 79 of 99 -- [2024] SASC 110 McIntyre J 78 302 The covering letter dated 10 December 2018 on Gregory Anderson’s file states inter alia: 267 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. 303 The covering letter does not contain any explanation of the will. Clause 4.1 is the clause which gifts the land previously left to the Church to Jim McInerney. Clause 4.2 is the amended gift to the Lanes. Clause 4.2 directs that upon the death of the survivor the land is to “pass to Jim 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. 304 Gregory Anderson did not give any evidence of receiving further instructions from Shirley O’Dea after the provision of the draft will. There is nothing on his file to suggest that she requested any amendments or provided further instructions. 20 December 2018 305 Gregory Anderson attended on Shirley O’Dea in Balaklava on 20 December 2018. 306 Gregory Anderson gave evidence that he went through the changes to the gifts of farming land with Shirley O’Dea on 20 December 2018 but not the minor gifts as there were no changes relating to her pecuniary beneficiaries from the February 2018 will.268 It is apparent, however, that there are significant changes to the pecuniary beneficiaries. It is unclear on the state of Gregory Anderson’s evidence when and where instructions for those changes came from. In his evidence-in-chief Gregory Anderson said: Q Do you know how long that meeting went on for. A That day was a particularly stressful day. I had a lot of meetings, I must admit. It was the last business day I think before Christmas closure, all bar one, perhaps, and I would be surprised if the meeting went for more than half an hour. But the topic was limited, really, to the specific gifts that we had previously discussed. Q How did she appear on this day. A Once again, I was satisfied that she was alert. She understood exactly what the purpose of the meeting was. She knew exactly what the magnitude of her estate was. So all of the - I guess all of the questions that I would normally ask myself I was satisfied that she was able to comply with. I mean this was a relationship, as I have said, that had been going on for a long time. It wasn't like I had seen her once, taken instructions, turned up with a new will and we had gone through it. This had been an ongoing event and, of course, in relation to the land, that had been ongoing for at least six months. I don't know. I - I brought with me an unsigned will to the meeting 267 Exhibit R2 15. 268 T544. -- 80 of 99 -- [2024] SASC 110 McIntyre J 79 with the intention that that would be executed. She already had a draft because I posted that to her, and she had a draft with her at that meeting and I think it was the draft that we used to go through the changes. Because I was fairly busy that day and because it was difficult to find another witness that could qualify to witness the will, I told Shirley that I would leave the original unsigned will with her and that she should find some witnesses and get the will signed. And I left the original unsigned will with her and I left a stamped addressed envelope for the return of the will. Because I expected that that's probably what would happen. 307 Gregory Anderson’s evidence about this being an “ongoing event” might be seen in the light of the evidence as it emerged. There is no evidence that Shirley O’Dea gave instructions to Gregory Anderson about the gifts for land prior to the meeting on 6 December 2018. The first suggestion of a change to the gifts of farming land came from Jim McInerney in his call to Gregory Anderson on 10 August 2018. I cannot be satisfied that Shirley O’Dea provided any instructions about the farmland until 6 December 2018. 308 In cross-examination however Gregory Anderson’s evidence on the topic of whether he read the will to Shirley O’Dea became less clear. Gregory Anderson’s file note does not record that he read over the changes with Shirley O’Dea. Rather, it records that he left the will with her on 20 December 2018 for her to read herself.269 Even were I to accept Gregory Anderson’s evidence, he did not read the will to Shirley O’Dea, rather he said that he paraphrased the changes to the gifts of farming land but did not need to read the portion relating to the minor legatees as there was no change. Paraphrasing is not sufficient in the light of the significant changes to the farming land clauses, and Shirley O’Dea’s advanced age combined with her cognitive and eyesight issues. Further Gregory Anderson conceded that there were significant changes to the pecuniary legacies and that he did not take Shirley O’Dea through those.270 309 Gregory Anderson ultimately conceded that he did not know if Shirley O’Dea had read the will.271 When asked in cross-examination about the time he spent with Shirley O’Dea on this occasion:272 Q So how long did you attend Shirley for on 20 December. A I can't recall, but it would probably have been 20 minutes. Q Well, looking at your time entry at p.390, you've recorded one unit, six minutes. A It was certainly longer than that. Q Well, even taking into account your evidence about your conservative billing practices, why would you only record one unit for a very important conversation such as this. 269 T647; T827-828. 270 T646. 271 T647. 272 T654-655. -- 81 of 99 -- [2024] SASC 110 McIntyre J 80 A I don't see any connection between the time and the importance because I discussed the changes with Shirley, one paragraph of the will, and I was satisfied that she understood the changes. Q How were you so satisfied. A She acknowledged that she wanted to make the changes. Q How. A She told me she did. Q What did she say. A I can't remember the words. Q Did she say any words. A She indicated that she was happy with the changes. Q How. A I don't know. Q No, you don't know. You don't remember, do you. A No. Q No, there's no notes, you don't actually remember what happened on the day at all. A I do remember what happened on the day, yes. 310 I have difficulty with Gregory Anderson’s evidence on this issue. On the one hand he cannot answer specific questions about what happened but on the other he says he does remember the meeting. I consider it likely that he remembers in general terms that he met with Shirley O’Dea but not the specifics of that meeting. This is hardly surprising in view of the effluxion of time and his lack of contemporaneous notes. It is clear from his evidence that he had a busy schedule that day, being his last working day in Balaklava before the Christmas closure. I infer from his evidence that he had limited time available to spend with Shirley O’Dea. His time ledger suggests he spent 6 minutes with Shirley O’Dea. This is not long enough to do the things that Gregory Anderson suggested he did. Gregory Anderson acknowledged this and estimated that he spent approximately 20 minutes with Shirley O’Dea. I reject that evidence as unreliable reconstruction. I do not accept Gregory Anderson’s evidence that he went through the changes to the farming land clauses or that he made any assessment of Shirley O’Dea’s testamentary capacity on that occasion. The will contains a significant error in the drafting of clause 4.2 with an erroneous reference to trusts detailed in clause 4.1. Clause 4.1 contains no trusts. Gregory Anderson agreed in cross-examination that at no time did he explain to Shirley O’Dea what was meant by that clause. I am not satisfied that Gregory Anderson took the time and care to go through the will -- 82 of 99 -- [2024] SASC 110 McIntyre J 81 with Shirley O’Dea and to satisfy himself that it recorded her intentions and that she understood the contents. 311 Gregory Anderson then left the will with Shirley O’Dea for her to arrange for execution together with an express post return envelope to his office. The second respondent contends that this is such a bizarre way to deal with an aged testator that it either cannot be true, or if it is, it demonstrates a gross lack of professionalism on the part of Gregory Anderson. I accept that submission, Gregory Anderson ought to have arranged formal execution with independent witnesses taking care to ensure that Shirley O’Dea knew and understood the contents of her will. In the absence of his doing that Jim McInerney stepped in to arrange execution. 26 December 2018 meeting 312 Three witnesses gave evidence on this topic. Jim McInerney, Maureen Pisano and Molly Smallacombe. 313 Maureen Pisano identified her signature on the 26 December 2018 will but said that she had no independent recollection of witnessing a will only a “legal document”. Her memory was that Shirley O’Dea asked her to do this and that she had the document in her walker. Maureen Pisano’s recollection was that she and Molly Smallacombe signed the document at the nurses’ station and not in another room. She had a vague recollection of a man being there but was not certain. She had no memory of a man being present and flicking the pages. She did not know why Shirley O’Dea used a different pen to sign compared to the pen used by the witnesses. Maureen Pisano denied that this was because Shirley O’Dea had signed the will at a different time. She did not recall seeing the “draft” stamp on the will. Shirley O’Dea did not apparently read the document nor was it read to her in Maureen Pisano’s presence. Maureen Pisano could not recall whether the will had been dated when she signed it. She did not date it. There was no discussion of this document after the date she signed it. 314 Molly Smallacombe was the other person who signed the December 2018 will. In her affidavit sworn on 17 June 2023273 she said that she signed it on 28 December 2018 and confirmed this under cross-examination.274 She was recalled to give further evidence to say that the reference to witnessing it on 28 December 2018 was a typographical error in her affidavit that she had failed to notice because she did not have access to the will which showed that the date was 26 December 2018. The will was signed on the date that appeared on the face of the will. Her explanation for the mistake in her affidavit is somewhat confusing since the relevant portion of her affidavit reads:275 On 28 December 2018 I signed as witness to Shirley’s will dated 26 December 2018. 273 Exhibit R1 23. 274 T164. 275 Exhibit R1 23 at [3]. -- 83 of 99 -- [2024] SASC 110 McIntyre J 82 315 Accordingly, the issue with the dates was made abundantly clear in that affidavit and it is not clear why Molly Smallacombe did not notice this. Efforts to clarify this issue were not successful as Molly Smallacombe was defensive, evasive, and argumentative on the topic of the will. Overall, it was clear to me from her cross-examination that she simply did not recall witnessing Shirley O’Dea’s signature whenever that occurred. At best her evidence confirmed that the signature on the document was hers. The date was not written in her handwriting. Molly Smallacombe cannot say who wrote the date in the document.276 She did not give evidence about the location in which the will was signed. 316 Jim McInerney said that Shirley O’Dea came to his house on Boxing Day, 26 December 2018. Jim McInerney said that he collected Shirley O’Dea from her unit and drove her the 45-minute trip to his family home where they had lunch.277 Mark McInerney confirmed that this was the only occasion that Shirley O’Dea had been invited for a Christmas lunch.278 Jim McInerney then drove Shirley O’Dea back to the nursing home. Shirley O’Dea told him that she had met with Gregory Anderson again and that he had prepared a will for her, and she wanted to get it signed as soon as possible. She told him she had read it over with Gregory Anderson and was satisfied as to its terms. She asked if he would assist her to arrange witnesses that day. Jim McInerney did not read over the will with Shirley at the time as he did not consider it was his place or appropriate to do so. This is somewhat curious evidence, given Mr McInerney’s previous evidence that he was present at the 6 December 2018 meeting between Gregory Anderson and Shirley O’Dea regarding the terms of her will, and his attempts to disclose the terms of the will to Jack O’Dea. 317 At Shirley O’Dea’s request, Jim McInerney said that he arranged for two witnesses from the staff at Mill Court Nursing Home to witness the will on 26 December 2018. He picked up the will from Shirley’s unit not noticing that it had a “draft” stamp on it. Jim McInerney said that he carried it because Shirley O’Dea was using two hands on her walker. In examination-in-chief Jim McInerney said that the signing took place in a little common room or a lounge with a couple of chairs and a sofa and a solid round table in the middle. Jim McInerney made sure that each page was signed appropriately where it needed to be signed and flipped the pages.279 In cross-examination, after hearing the evidence of Maureen Pisano, Jim McInerney said that he could not definitely say the will was signed in a common room or lounge. They definitely signed the last will in that room, but the signing on 26 December 2018 may have taken place in a common area as opposed to a common room. He denied changing his evidence to 276 T973. 277 T53. 278 T312. 279 T54-55. -- 84 of 99 -- [2024] SASC 110 McIntyre J 83 fit the evidence given by Maureen Pisano that the signing occurred at the Nurses Station.280 318 Jim McInerney initially denied dating the will saying that the date was not in his writing but then changed his evidence as follows:281 Q That's not Shirley's handwriting either, is it, the date. A No, it's not Shirley's. Q Thank you, I have no further questions. A On reflection, it may well be my - Q It may be your writing, gosh. A Yes. It's very interesting to note that Shirley's signature's pretty much identical from many previous wills to this one as well. Q So, I asked you whether it was your writing and you said no, and then we were all about to sit down and you say it might be. A Well, I think it probably is, yes. Q It is in fact your writing. Why haven't you told the court before now that it's your writing. A Boxing day is usually the 26th of December. Q Yes. A Shirley was at my place for lunch that day, and interestingly, many people have said that they can't recall, or it's hard to recall five years before. On that day, which hasn't been stated before, it was only, came about about a week ago, my own daughter was present for lunch on that day, and neither myself nor my wife actually remembered until she pointed it out to us. So, I'm just illustrating how difficult it is, your Honour, to remember events that took place five years ago. Q Well, let's start again. Is that your handwriting on the page. A Yes, it is. Q When did you put it on the page. A On the 26th of December, obviously. Q When on the 26 of December. A At the time Shirley was about to sign the will, because it was late in the day, she'd been at our place for lunch, I took her home. She expressed, as I have said before, that she was concerned that the will hadn't been signed; could I do something about it. And I said 'Are you talking about now?' And she said 'Yes'. It was my fault that I 280 T997-998. 281 T994-997. -- 85 of 99 -- [2024] SASC 110 McIntyre J 84 picked up a draft instead of the copy, both of which were present in her unit, and we proceeded to go to the nurses' home via a back entrance, where the signing of the will took place. Q Now, my question was, when, you say on the 26th, did you write the 26th on it. A I couldn't say exactly, but I would think some time after 4 o'clock, 4.30. Something like that. I cannot say for sure - it's five years ago. Q So you say sometime at 4 o'clock you wrote on the will '26 December'. A I didn't say 'Sometime at 4 o'clock' at all. Q I said 'Around 4 o'clock'. A You didn't say 'Around 4 o'clock', you said '4 o'clock'. Q Please tell us, Mr McInerney, your memories of this - A I have just said - Q Yes. A I have just said sometime, I would assume, after 4 o'clock. Q Why do you assume that. A Because we had lunch that took a considerable length of time, which was very pleasant. I then took the 40-odd minutes to drive back to Balaklava. Shirley informed me, shortly before getting back, that not having the will signed was concerning her, could we do something about it. So sometime, after a very enjoyable afternoon with Shirley, and a pleasant trip back in the car, she expressed the wish that she would like to have her will signed - whether it was 4, 4.30, quarter to 5, I could not tell you. Q So, at some point that afternoon, you wrote the date on the will. A I did write it on the date of the will, because, normally, if you're signing, if someone's signing a will, there needs to be a date on it - Q Yes. A And, as I said, Boxing Day, to my knowledge, is always 26 December. Q So, at some time, in that afternoon, you wrote the date on the will, you now say. A Obviously, I did, yes. Q Yes, you say obviously you did. Your sworn evidence is that you did. A I'm saying that I did. Looking more closely at the writing, I can see that it is my - Q It's your writing on 26 December. A It is my writing. Q And you've done it in the blue pen. -- 86 of 99 -- [2024] SASC 110 McIntyre J 85 A I've done it in the blue pen and Shirley signed in the blue pen. Q So the date's been written on it at the same time Shirley has signed it, you'd agree. A Not necessarily. I would have thought that I put the date on there before Shirley signed it. Q So you put the date on there before Shirley signed it. A I would have thought so. Q Well, I'm not asking you to speculate, Mr McInerney, I'm asking what your memory is. A Well, I would have, because that was - it would be an illegal document. Q So you put the date on it before they signed. A Yes. 319 Jim McInerney said that this was five years ago and that it was hard to recall details. I accept that this is so, however, he gave positive evidence about a number of issues but then revised his position when other evidence suggested he was incorrect. For example, in relation to the dating of this will both, Molly Smallacombe and Maureen Pisano said that the date was not in their handwriting. The date is written in blue ink when their signatures are in black ink. Jim McInerney said it was not in Shirley O’Dea’s writing albeit her signature was in blue ink. It became apparent to him that he would have to admit it was his writing. Despite claiming not to have a memory of this due to the effluxion of time, he then went on to give quite specific and definite evidence about the time at which he wrote the date. This evidence, at best, was reconstruction. 320 On any view, the evidence is that Shirley O’Dea did not read the document at the time it was signed. The fact that it was stamped “draft”, which no one noticed, supports the conclusion that this was the case. Why was the will executed a second time? 321 The will signed on 25 January 2019 was identical in terms to the will signed on 26 December 2018. Jim McInerney was the only witness who gave evidence about the reasons for this. 322 In examination-in-chief, Jim McInerney said that Shirley O’Dea contacted him about a fortnight after the will was executed to advise him that she had been told by management that it was against the policy of the facility to have its staff witness documents. She told him that the will would need to be re-witnessed by alternate witnesses and she requested his assistance with that.282 He did not 282 T55. -- 87 of 99 -- [2024] SASC 110 McIntyre J 86 mention either in his oral evidence-in-chief or his affidavits that there was any concern about the draft stamp on the December will. 323 In cross-examination Jim McInerney said that the December will was “deemed to be invalid” because management of the nursing home were very upset about two members of the staff signing it and they said that it would have to be re- witnessed.283 324 Jim McInerney said that Shirley O’Dea had another copy of the will that Gregory Anderson had left with her. She asked Jim McInerney to help to get that executed. As indicated above, Jim McInerney gave evidence that he did not see that the December will had a draft stamp on it at the time it was executed. He then gave evidence as follows:284 Q When do you say you first saw it stamped with the word 'Draft'. A Because I was told that the will was invalid for two reasons. It was stamped 'Draft', and the witnesses were from the home which were deemed improper, that it was not - the home were very unhappy about people from the home witnessing the signature. That happened to be Boxing Day, 26 December. I thought Shirley wanted it signed that day. Where am I going to get witnesses on Boxing Day, a public holiday, and it's right adjacent to where she was living, so I immediately ... the nursing home. Q So you now say someone told you that the will was invalid because it was stamped 'Draft'. A That's the message that Shirley relayed to me. I did not know until somewhere - probably around the middle of January 2019. Q So you now say that Shirley told you that the will had to be signed again - A It did. Q - because it was stamped 'Draft', and management had told her that they didn't want to be witnesses. A Exactly. Q And you would accept that during the course of these proceedings, all your affidavits, all your evidence yesterday and all your evidence today, you have never said that Shirley told you the will needed to be re- executed because it was stamped 'Draft' - A I think you will find - Q - until one minute ago. A I think - sorry for interjecting - I think you will find that in an affidavit. 283 T175. 284 T179. -- 88 of 99 -- [2024] SASC 110 McIntyre J 87 Q And it's your case then that you didn't see it was stamped 'Draft' until Shirley told you that sometime in early January. A She told me that. And if I was so anxious for Shirley to have it signed, why would I have waited until 25 January? 325 I do not accept Jim McInerney’s evidence that Shirley O’Dea said that the nursing home raised an issue with the will being signed by nursing home staff. Gregory Anderson gave evidence that he arranged for a member of the nursing home staff, Rebecca Hudson, to sign an earlier will on 1 September 2016, without Rebecca Hudson raising any concerns on behalf of herself or the nursing home.285 Rebecca Hudson was a senior member of nursing staff who would not have allowed herself to be placed in a position by witnessing and signing a will which was contrary to the policy or practice of the nursing home. Further, neither Molly Smallacombe nor Maureen Pisano gave evidence of this being an issue. I consider it more likely that Jim McInerney noticed at some point that the December 2018 will had a draft stamp on it and that was the reason he arranged for the re-execution of the will. 25 January 2019 will 326 Jim McInerney said that he visited Shirley O’Dea on 25 January 2019 and that he arranged for Raymond McCracken and Rebecca Durdin to walk from the motor vehicle dealership to the nursing home to witness the signing of the will on 25 January 2019. 327 Raymond McCracken gave oral evidence and swore two affidavits286 related to the circumstances in which Jim McInerney arranged him to witness the signature of Shirley O’Dea on a will on 25 January 2019. I have no reason to doubt his evidence. Jim McInerney attended at his business McCracken Ford and asked if he could go to Mill Court Nursing Home to witness will. He suggested that his employee, Rebecca Durdin could be another witness. The three of them walked to the nursing home which was nearby. The signing took place in a common lounge room. Raymond McCracken had known Shirley O’Dea for about 15 years. He had a brief conversation with Shirley O’Dea who recognised him. She appeared the same as usual. 328 Rebecca Durdin gave oral evidence and provided two affidavits287 related to the circumstances in which Jim McInerney arranged for the signature of Shirley O’Dea’s will. Again, I have no reason to doubt her evidence. She did not know Shirley O’Dea but Shirley O’Dea knew her grandparents, so she chatted to Shirley O’Dea about her grandparents – she recounted that it appeared Shirley O’Dea knew what was happening. 285 Exhibit R2 30 at 275; T568. 286 Exhibit R1 16; Exhibit R1 17. 287 Exhibit R1 18; Exhibit R1 19. -- 89 of 99 -- [2024] SASC 110 McIntyre J 88 329 Both Raymond McCracken and Rebecca Durdin confirmed that Shirley O’Dea did not read the will in their presence nor was it read over to her. Neither could recall whether handwritten amendments to that will had been made at the time they witnessed it.288 330 Raymond McCracken described the will signing process as: 289 well Shirley signed it and then we – the will was put in front of us. The will was never read out to us, we just had to sign - Jim showed me how to sign – where to sign. And then we had to sign each page. 331 Rebecca Durdin said:290 we just sat down at a table, I think it was only like a small sort of coffee table type thing and signed the will. 332 Rebecca Durdin confirmed that the document was not read by or to Shirley O’Dea. She recalled the pages were just flipped.291 Rebecca Durdin said that after everybody signed it “we went back to work”.292 She could not remember anything about any writing in the will. 333 Jim McInerney said that he did not look at the document in any detail before it was signed, but merely turned the pages as it was being signed to make sure that each page was attended to as it should be. Jim McInerney said he presumed the writing was already on the will, however he just flipped through the pages quickly and was not taking notice of the contents of the will.293 Jim McInerney was however paying enough attention to point out that it should read 2019 not 2018 as the date was typed on the document. He suggested that the date be crossed out and changed to 2019 and the change initialled.294 Jim McInerney was taken through various other notations on the will.295 He said he did not know how those markings came to be on the will or when they were put there. He did not know whether it was Shirley O’Dea’s writing or not.296 334 Jim McInerney said that he put the will into a big envelope addressed to Mellor Olsson at Clare and that he sealed and posted it the same day. He described this as a self-addressed envelope that was in the room at the time the will was signed. Whilst Jim McInerney was challenged on this topic, I note that Gregory Anderson said he left a self-addressed envelope with Shirley O’Dea on 288 T142. 289 T130. 290 T139. 291 T144. 292 T139; T142. 293 T184. 294 T182; T184. 295 T183-184. 296 T994-997. -- 90 of 99 -- [2024] SASC 110 McIntyre J 89 20 December 2018. Laura Sullivan said it was not usual for Gregory Anderson to have a client post back a will. Her evidence was as follows:297 Q So you never gave a client a Will with an envelope saying 'Post it back' or anything like that. A He may have done it once or twice to people that couldn't get to him, so he would send it out and give them witness instructions but very, very rarely. He would actually take the Will ready to go and he would be there for execution and it would come back in the file for us to copy. Q So you don't recall a time when a client would be sent a copy of the Will in an envelope saying 'Please post it back to us'. A Probably twice. Q And so that was an unusual instance, occurrence. A Yeah, it wasn't normal process. 335 Whilst plainly Gregory Anderson did not leave self-addressed envelopes as a usual practice, I accept that he did that on this occasion. Presumably this is because he had limited time to spend with Shirley O’Dea on 20 December 2018 and did not consider that he would be able to arrange for the execution of the will. Summary – key factual findings concerning contested wills. March 2017 will 336 The March 2017 will was a copy of the September 2016 will signed in error. Gregory Anderson took the wrong will to his appointment with Shirley O’Dea. No one noticed that this was the case. I find that Gregory Anderson did not read through the will with Shirley O’Dea, nor did he undertake cognitive testing. He apparently relied on the fact that he had sent a draft will to Shirley O’Dea for her to consider prior to this appointment and assumed that she had read it. 337 The circumstances of the execution of the March 2017 will demonstrate that Gregory Anderson’s general approach to Shirley O’Dea’s wills was not in accordance with the careful approach he outlined in his affidavit.298 February 2018 will 338 On the face of the will there was due execution. The document appears rational and to accord with Shirley O’Dea’s instructions to Gregory Anderson. It is consistent with Shirley O’Dea’s long held testamentary intentions as to the gifts of land. It further appears that, at some point, Shirley O’Dea had read the will given the handwritten amendments that were initialled by Shirley O’Dea and the witnesses. There are however some concerns as to Shirley O’Dea’s capacity given the evidence of Dr Innis and given Gregory Anderson is not able to say what he 297 T1029. 298 Exhibit R1 50. -- 91 of 99 -- [2024] SASC 110 McIntyre J 90 did in relation to capacity testing either when he took Shirley O’Dea’s instructions or when he witnessed her executing the will. Change in gifts of farmland 339 In May 2018 Shirley O’Dea gave instructions given to Gregory Anderson in relation to her will that did not involve changes to gifts of the farmland. 340 I do not accept Jim McInerney’s evidence that Shirley O’Dea initiated discussions about changes to her will on 22 June 2018 nor do I accept his evidence about the content of those discussions. 341 I find that Jim McInerney initiated the changes to the will by telephoning Gregory Anderson on 10 August 2018. There is no evidence that Shirley O’Dea had any prior contact with Gregory Anderson concerning changes to the gifts of farming land. Jim McInerney’s call was not expected by Gregory Anderson. His call prompted Gregory Anderson to make an appointment to see Shirley O’Dea on 23 August 2018. 342 The evidence about what was discussed at the appointment on 23 August 2018 is unclear owing to the lack of notes on Gregory Anderson’s file and his inability to recall what was discussed. I find that Gregory Anderson did not take instructions to change Shirley O’Dea’s will at the appointment on 23 August 2018. 343 Nothing further occurred in relation to Shirley O’Dea’s will until Jim McInerney initiated contact with Gregory Anderson by telephone on 26 November 2018. As a result of that call Gregory Anderson undertook Land Titles Office searches of Shirley O’Dea’s land and made an appointment to see Shirley O’Dea at her unit on 6 December 2018. 344 The appointment on 6 December 2018 was the first occasion Shirley O’Dea gave Gregory Anderson instructions that she wished to leave land to Jim McInerney. Gregory Anderson did not follow the Banks approach that he outlined in his affidavit of 31 January 2022.299 There is no evidence that he questioned Shirley O’Dea about the size and nature of her estate. What discussion there was on that topic related to Gregory Anderson’s assessment of the value of the land being left to the Lanes. Shirley O’Dea did not apparently appreciate that this was a significant underestimation. There is no evidence that Gregory Anderson sought to have Shirley O’Dea describe her reasons for the significant change to the disposition of the farmland in the manner he described in his affidavit.300 Accordingly, he did not assess whether her reasons were soundly based. Gregory Anderson did not discuss Shirley O’Dea’s cognitive capacity with Dr Nyoni. 299 Exhibit R1 50. 300 Ibid at [6]. -- 92 of 99 -- [2024] SASC 110 McIntyre J 91 345 Jim McInerney attended the appointment on 6 December 2018 at which substantial changes were contemplated in his favour. He instigated this appointment and the previous appointment. He had no obvious claim to represent Shirley O’Dea. These matters ought to have given Gregory Anderson pause yet he did not, as he says was his practice, take any steps to satisfy himself that Shirley O’Dea was not subject to any undue influence in changing her will in Jim McInerney’s favour. This is particularly concerning in view of the medical evidence. 346 Following the 6 December 2018 appointment Gregory Anderson prepared a new will for Shirley O’Dea. He sent a draft of the new will under cover of a letter dated 10 December 2018. The letter did not contain any advice about the content of the will. 347 Gregory Anderson attended at Shirley O’Dea’s home on 20 December 2018 to deliver a copy of the will sent in draft on 6 December 2018 for execution. Gregory Anderson was pressed for time and did not arrange for execution of the will in accordance with his usual practice. He instead left the will with a stamped self-addressed envelope with Shirley O’Dea. I find that Gregory Anderson did not go through the will with Shirley O’Dea and that he did not take any steps to ensure that it reflected her true intentions and wishes. He did not take any steps to ensure that no undue influence was brought to bear on Shirley O’Dea. I find that he simply left the will with her to sign and return. 26 December 2018 will 348 Jim McInerney arranged for the execution of the will on 26 December 2018 but mistakenly used the draft will posted on 10 December 2018, instead of the copy for execution delivered by Gregory Anderson on 20 December 2018. There is no evidence that the will was read to Shirley O’Dea, nor that she read or understood it prior to signing it. I find that Jim McInerney dated the will. Molly Smallacombe’s evidence on the topic of execution is not helpful but I accept Maureen Pisano’s evidence that the will was signed by Shirley O’Dea in her presence on 26 December 2018. 349 I reject Jim McInerney’s evidence concerning the reasons that the will was re-executed on 25 January 2019. In particular, I reject his evidence that it was at the behest of Shirley O’Dea, following concerns raised by the Nursing Home staff acting as witnesses, I find that Jim McInerney noted the “draft” stamp and was concerned about the validity of the will and hence organised the will to be re- executed. 25 January 2019 will 350 The execution copy of the will left by Gregory Anderson on 20 December 2018 was executed on 25 January 2019. There is no evidence that this will was read to Shirley O’Dea, nor that she read and understood it prior to signing it. -- 93 of 99 -- [2024] SASC 110 McIntyre J 92 351 Jim McInerney was present and flipped the pages ensuring that it was signed on each page and that the date was changed to reflect the fact it was 2019 not 2018 as typed on the will. 352 Jim McInerney took possession of the will after execution and sent it to Mellor Olsson in the envelope provided by Gregory Anderson during his meeting with Shirley O’Dea on 20 December 2018. I do not know who wrote the various notations on the will. I find that they were on the will at the time of execution given Jim McInerney took possession of the will immediately after execution. Conclusion - legal onus 353 I find that there is evidence of due execution of the February 2018, December 2018, and January 2019 wills notwithstanding some unsatisfactory aspects to this evidence in relation to the execution of the December 2018 will outlined above. 354 I put the March 2017 will to one side because no party contends that this will represents the testamentary intentions of Shirley O’Dea as communicated to Gregory Anderson. 355 The legal onus of proving a will lies with the party propounding it both as to testamentary capacity and knowledge and approval. Jack O’Dea, the executor, takes a neutral position and accordingly the burden falls on Jim McInerney in relation to the December 2018 and January 2019 wills and on the Church and Dr Lane in relation to the February 2018 will. Testamentary Capacity Is there a presumption as to testamentary capacity? 356 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,301 that the December 2018 and January 2019 wills are not given the substantial change to Shirley O’Dea’s longstanding testamentary intentions. 357 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, Jim McInerney, 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. 358 There is no similar issue with the February 2018 will. 301 Moloney at [289]. -- 94 of 99 -- [2024] SASC 110 McIntyre J 93 Has the presumption as to testamentary capacity been rebutted by doubt? 359 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. • 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. • Jim McInerney’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. 360 The situation is less clear in relation to the February 2018 will. Certainly, Shirley O’Dea was of advanced age and suffering various physical ailments together with mild brain disease and mild cognitive impairment. Dr Innis considered that Shirley O’Dea had dementia that had evolved over a number of years and that it was unlikely that her cognitive deficits arose suddenly after June 2018. There is also the evidence of Dr Lane and Jack O’Dea that Shirley was struggling to undertake her usual financial activities such as paying bills, recording cheques and the like from mid to late 2017. On the other hand, this will did not represent a significant change from her wills over a nearly 20 year period, the handwritten amendments are consistent with Shirley O’Dea having read it, and the -- 95 of 99 -- [2024] SASC 110 McIntyre J 94 will was executed in the presence of two witnesses. On balance, I do not consider that the presumption of testamentary capacity has been rebutted in relation to the February 2018 will. 361 In these circumstances therefore the burden of proving testamentary capacity falls on Jim McInerney in respect of the wills he propounds either the January 2019 will or the December 2018 will. The medical evidence 362 There is a dispute between Professor Rosenfeld and Dr Innis as to whether Shirley O’Dea had a diagnosis of subclinical delirium or dementia. Professor Rosenfeld accepted that Shirley O’Dea suffered from mild brain disease and mild cognitive impairment which not infrequently goes on to progress to dementia. He did not however consider that Shirley O’Dea was suffering dementia in late 2018 and early 2019 in the light of the medical records and the affidavit material from Gregory Anderson. Professor Rosenfeld considered that the observations of the community nurses were explicable on the grounds of subclinical delirium. 363 Dr Innis based her diagnosis of dementia on the basis of evidence of short term memory loss, impaired orientation to time, reduced judgment and lack of insight, lack of self-care in several respects. Dr Innis’ view was that there was no indication in the various medical notes that subclinical delirium was present. Dr Innis’ opinion is supported by that of Dr Lucas who, whilst not qualified to diagnose medical conditions, is able to express a view as to the effects of those conditions upon function. She said that the cognitive issues displayed by Shirley O’Dea were consistent with dementia symptoms and raised concern about Shirley O’Dea’s executive functioning. 364 On balance I prefer the evidence of Dr Innis that Shirley O’Dea suffered from dementia which had been evolving for some years. This is congruent with Shirley O’Dea’s inability to properly deal with her financial affairs from at least September 2017. I further note that Professor Rosenfeld’s opinion was to a great extent influenced by Gregory Anderson’s affidavit evidence concerning Shirley O’Dea’s functioning and the approach he asserted that he followed with Shirley O’Dea when taking instructions and executing wills which I have largely rejected. For example, Professor Rosenfeld considered, on the basis of Gregory Anderson’s affidavits, that there was no evidence that at the time of providing instructions and the subsequent signing of her wills Shirley O’Dea was influenced in her decisions. However, the affidavit material says nothing about Jim McInerney’s extensive involvement in the will making process. 365 Even if I were wrong to prefer Dr Innis’ diagnosis, it is plain that a diagnosis of delirium makes little difference to an assessment of Shirley O’Dea’s testamentary capacity at the relevant times. The evidence of Professor Rosenfeld and Dr Innis establishes that both conditions cause periods of executive dysfunction. Likewise, the uncontroversial diagnoses of mild brain disease and mild cognitive impairment would, in the view of all three experts, have impacted -- 96 of 99 -- [2024] SASC 110 McIntyre J 95 Shirley O’Dea’s executive functioning. Executive functioning involves activities such as planning, decision-making, working memory, mental flexibility, judgment, and reasoning.302 These activities are all relevant to testamentary capacity. 366 All three experts accepted the general propositions in Professor Rosenfeld’s first report that I have outlined above. Even people with cognitive impairment can exercise testamentary capacity if properly supported to undertake the specific cognitive tasks required. Shirley O’Dea’s presentation would likely have fluctuated from day. She may well have been able to undertake a range of tasks and activities such as conversing with visitors about topics of interest to her, but I find that she lacked the capacity to undertake a number of specific cognitive tasks, such as those relating to her finances, without assistance. There is objective evidence of a lack of testamentary capacity. This includes Shirley O’Dea’s inability to deal with financial matters since late 2017 and short term memory issues noted by the community health nurses and some of the lay witnesses such as Annette Barker, Kirsty Ingram and Father Sexton. 367 David Evans met Shirley O’Dea at the nursing home on 18 January 2019. He formed the view that Shirley O’Dea knew and approved of the advance care directive and the power of attorney that he had prepared. Whilst these documents are not of the same level of complexity as a will and require less specific cognitive tasks it is nonetheless of importance that an experienced solicitor such as David Evans, who has had significant previous dealings with Shirley O’Dea, formed the view that he did. However, 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. 368 A will requires the “highest degree of mental soundness”. 303 This is the reason that a solicitor’s duties in relation to wills are so onerous. Gregory Anderson’s affidavit of 31 January 2022 sets out what he ought to have done.304 He signally failed to do any of these things on a number of occasions including at the meetings on 23 August 2018, 6 December 2018 and when he delivered the will on 20 December 2018. 369 Shirley O’Dea had variable function which required particular care to ensure that she understood the purpose and effect of her will, the nature and extent of her property, the nature of the claims to her property by those excluded by the will and to exclude the possibility of suggestibility raised by both Dr Innis and Dr Lucas. I 302 Exhibit R2 98 DBE at 4. 303 Crago v McIntyre [1976] 1 NSWLR 729. 304 Exhibit R1 51. -- 97 of 99 -- [2024] SASC 110 McIntyre J 96 cannot be satisfied that Shirley O’Dea had testamentary capacity at the time she provided instructions to Gregory Anderson on 6 December 2018 or when Gregory Anderson provided her with the draft copy of the will and the execution copy in December 2018. 370 I find that Gregory Anderson did not at any stage undertake a proper assessment of Shirley O’Dea’s testamentary capacity in relation to the December 2018 and January 2019 wills. The evidence indicates that Shirley O’Dea did not identify all of her property when asked to do so in August 2018. There is no evidence that Gregory Anderson asked Shirley O’Dea to do this in December 2018. It does not appear that Gregory Anderson asked the type of non-leading questions he identified as appropriate to ascertain what Shirley O’Dea’s assets were, who she wanted to leave those assets to and why she chose to do this. There is certainly no file note that records this. 371 The evidence of Gregory Anderson moreover indicates a degree of suggestibility consistent with the evidence of Dr Innis and Dr Lucas. The change to the gift to the Lanes appears to have occurred as a result of Gregory Anderson questioning the gift as “extraordinarily generous”. It is troubling that this commentary apparently prompted Shirley O’Dea to agree to a change to her long held testamentary intentions in circumstances where the beneficiary of that change was in the room at the time the instructions were given. Gregory Anderson suggested that the Lanes were well off, the same could be said of Jim McInerney. 372 Likewise, there is little, if any, explanation of the change of gift from the Church to Jim McInerney. Whilst I have accepted that Shirley O’Dea was concerned about sexual abuse issues within the Church in general terms over a long period of time, there is no evidence that this affected her view of the Church to the extent that she determined to exclude the Church from her will. No evidence was called to suggest that this issue was more topical or pressing for Shirley O’Dea at the time of these changes. No evidence was called about compensation payments nor was there evidence of the Church selling property to make such payment. 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. Gregory Anderson did not explore these issues with Shirley O’Dea, nor did he apparently provide her with any advice on this topic. Unlike with the gift to the Lanes, Shirley O’Dea was not given any advice concerning the generosity of the gift encompassed by the changes to Jim McInerney. Further it was entirely inappropriate that Gregory Anderson received these instructions in the presence of Jim McInerney. 373 Gregory Anderson visited Shirley O’Dea in her unit on 20 December 2018 to deliver her will. Shortly after this, Shirley O’Dea moved into the adjacent nursing home. There is no evidence that Gregory Anderson made any enquiries of Shirley O’Dea’s general practitioner Dr Nyoni or the nursing home staff about Shirley O’Dea’s capacity. Further, I have found that Gregory Anderson did not read the will to Shirley O’Dea. Even if I accepted his evidence that he paraphrased -- 98 of 99 -- [2024] SASC 110 McIntyre J 97 the changes and asked Shirley O’Dea if she agreed with them, this is insufficient in the circumstances.305 374 Likewise, there is no evidence that Shirley O’Dea had testamentary capacity at the time she executed the December 2018 and January 2019 wills. Indeed, the fact that the December will was marked “draft” strongly supports the proposition that she did not have such capacity. I am satisfied that the will was simply placed in front of Shirley O’Dea, and she signed it without reading. This is particularly concerning given the lack of clarity about the instructions that were provided to Gregory Anderson. Jim McInerney’s involvement in the execution of the wills is problematic to say the least. 375 Jim McInerney has not established that Shirley O’Dea had testamentary capacity to make the January 2019 will, or the December 2018 will. Knowledge and approval 376 Given my findings that Jim McInerney has not established that Shirley O’Dea had testamentary capacity at the time of the December 2018 and January 2019 wills, the presumption of knowledge and approval does not arise. Notwithstanding this I indicate my view that the presumption would have been rebutted for similar reasons to the presumption concerning testamentary capacity. In those circumstances Jim McInerney would have to provide affirmative evidence that Shirley O’Dea knew and approved of the contents of those wills. He has not done so. 377 Gregory Anderson did not go through the December 2018 and January 2019 wills with Shirley O’Dea as he says. Instead, a draft copy was posted to Shirley O’Dea. There was no advice provided as to the contents of the draft in the covering letter. There is no evidence that Shirley O’Dea read the draft. Unlike the February 2018 will, Shirley O’Dea did not provide further instructions following receipt of the draft. Gregory Anderson was, to use his expression, pressed for time when he delivered the execution copy of the will to Shirley O’Dea. I have found that he simply left the will with her to read and to be executed and returned to him at a later date. There is no evidence that Shirley O’Dea read and understood this copy. To the contrary, it appears that Shirley O’Dea did not note that the December 2018 will was marked with the word “draft”. Nor did an obvious drafting error in clause 4 of the December 2018 and January 2019 wills prompt any questions from Shirley O’Dea. Further it is apparent that Shirley O’Dea had a significant vision impairment casting a significant doubt as to her ability to read the will. In the absence of evidence that Shirley O’Dea read the will, or had it read to her, I could not be satisfied that she knew and approved the contents of these wills. 305 Ryan v Dalton at [107]. -- 99 of 99 --