Beim v Alldritt [1998] QSC 124

IN THE SUPREME COURT OF QUEENSLAND No. 8238 of 1996 Brisbane BETWEEN: MARGARETE BEIM Plaintiff AND: MIM ALLDRITT Defendant REASONS FOR JUDGMENT - CHESTERMAN J. Judgment delivered 19 June, 1998 CATCHWORDS: Will - validity - testamentary capacity - undue influence Counsel: Solicitors: Hearing Dates: Mrs D Mullins for the plaintiff. Mr C Newton for the defendant. Deacons Graham & James for the plaintiff. Bradley & Co for the defendant. 2, 3 and 4 June, 1998 -- 1 of 23 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: MARGARETE BEIM AND: MIM ALLDRITT REASONS FOR JUDGMENT - CHESTERMAN J. Judgment delivered 19 June, 1998 No. 8238 of 1996 Plaintiff Defendant Richard Nathaniel Beim was born on 18 March, 1910 at Jarosiau in Poland. He died on 18 June, 1996 at the Princess Alexandra Hospital in Brisbane. He had been rendered tetraplegic in a motor car accident six months earlier, on 3 January, 1996. The plaintiff is his widow and was his third wife. His first marriage ended in bereavement and his second in the bitterness of divorce. The defendant is the late Mr Beim's only surviving child. Her mother was the second Mrs Beim. On 15 January, 1996 Mr Beim (whom I shall call "the testator") made what purports to be his last will. The plaintiff, who is named as sole executrix in the will, applied for, and was granted, probate in common form on 3 September 1996. On 26 September, 1996 the court ordered, on the defendant's application, that the grant be brought into the Registry and that the plaintiff commence an action to prove the will in solemn form. This action is brought in compliance with the order. The defendant disputes the validity of the will on the grounds that the testator lacked the requisite testamentary capacity and/or was induced to make the will by undue influence exerted on him by his wife. -- 2 of 23 -- 2 The testator was ethnically German. After an eventful early life he settled in Australia in about 1950. He prospered here. The testator and the plaintitfmet near Venice in 1972 where she was convalescing from an illness and he was seeking relief from the distress of his divorce. The plaintiff at the time was a widow resident in Frankfurt. She was born on 16 December, 1923. They became fiiendly on first meeting and spent much of their holiday together. Reluctant to part, the testator invited the plaintiff to Australia where he had substantial property and business interests. She accepted on the express understanding that she would come for six months to test whether she liked this country and if her friendship with the testator might deepen. She arrived on 16 December, 1972. She developed an attraction for the place and the man. They married on 14 July, 1975. The testator was a polyglot but his primary language was german. That is the language in which he and the plaintiff conversed. The plaintiff gave evidence in fluent english. The testator, she said, spoke english more fluently though with a slightly thicker accent than hers. Although few details were given in evidence, the testator appeared to have led a varied and interesting life and to have been an attractive character. He had owned cattle properties which were sold as part of the property settlement with his second wife. He was the author, or at least the producer, of horoscopes published in book form which brought him substantial royalties. He had been a man of very substantial wealth. The particulars of his estate were not put into evidence but he and the plaintiff led a comfortable, indeed, a lavish married life. They travelled extensively overseas and for extended periods. The testator built a very substantial house on a canal estate at Scarborough in which he and the plaintiff lived. It is still the plaintiffs home. He invested, unwisely as it turned out, very large sums of money in buying land near Childers on which he planted avocado and lychee trees.~ The testator's business affairs were not examined in detail but it does appear that the farms -- 3 of 23 -- 3 are burdened by a sizeable debt and the return from the fruit harvested is insufficient to nay the . . cost of production and interest on the loan. The testator had trieq, perhaps not very energetically, to sell the farms for a few years prior to his death. He had also investigated increasing the return by selling weather-damaged avocados for manufacture into an avocado paste. He travelled with his co-venturer in the farms, Mr Bruce Johnston, to Europe for two weeks in 1994 to investigate a possible market for the paste. There was considerable interest in the project which ultimately came.to nothing. The farm properties were owned by the testator but the farming operation was conducted by a company in which the testator and Mr Johnston were equal shareholders. Mr Johnston appears to have managed the properties on a day to day basis. The testator retained a keen interest in the operation of the farms. They represented his major asset and were a source of concern to him. On 3 January, 1996 the testator drove from his home in Scarborough to Childers to discuss questions of business with Mr Johnston. He intended then to drive onto Bargara where he owned a house in which he would stay the night. He had an appointment with a technician to discuss the installation of a facsimile machine and line in the house as he wanted to have office facilities there. The weather was bad and a storm broke as he drove from Childers to Bargara. He ignored suggestions from Mr Johnston and pleas from his wife (whom he had telephoned) that he should stay in a motel near Childers and drive to Bargara the next day. He was, the evidence suggests, a strong-willed and independently minded man. It was while driving to Bargara that his car crashed and he suffered the terrible injury I have mentioned. After being cared for overnight in the Bundaberg Base Hospital the testator was flown to Brisbane and admitted to the spinal unit of the Princess Alexandra Hospital where he was cared -- 4 of 23 -- 4 for by Dr Vernon Hill ana his staff On admission the testator was critically ill. The plaintiff had, naturally, contacted the defendant who lived with her husband in Sydney. They came immediately to Brisbane where they joined the Vigil at the testator's bedside. Unhappily, relations between the plaintiff and her step-daughter, ~the defendant, had been tense for some years and they developed into outright hostility at the hospital. The plaintiff was cross-examined vigorously and at some length about episodes in which the hostility was manifested but nothing relevant for the disposition of the litigation emerges from this part of the evidence. One event is worth mentioning. 'On 6 January, 1996 the defendant contacted a local synagogue and arranged for a rabbi to visit her father. The testator had not been religiously inclined but he and his family were nominally Jewish. The defendant said that it was the testator who requested her to ask a rabbi to come because, she thought, he realised that he might die. The testator joined (parily) in the recitation of a prayer or hymn in Hebrew. When the rabbi left the testator remarked to the defendant that he was a "nice man". On 8 January, 1996 the defendant and her husband returned to Sydney. On 10 January, 1996 the testator gave an enduring power of attorney to the plaintiff. He could not sign but made his mark, a pen being placed in his hand for the purpose. The granting of the power of attorney seems to have been Dr Hill's idea. He recalled the testator well and said that he was a business man who was anxious about many of the things that he "had in motion". He was unable, by reason of his paralysis, to write or sign his name. The power was given for convenience in transacting day-to-day activities such as writing cheques and paying bills. The execution of the power of attorney was witnessed by Dr Van de Hoef, a psychiatrist who practised at the Princess Alexandra Hospital and who was also a Justice of the Peace. She was, fortuitously, present when the plaintiff asked the nursing staff if there was a Justice of the -- 5 of 23 -- 5 Peace in the vicinity of the ward who could witness the testator's signature. Dr Van de Hoeftook her role as subscribing witness conscientiously. She explained to the testator that she was a psychiatrist who worked in the hospital but was present on that occasion as a Justice of the Peace to witness his signature. The testator had the power of attorney beside him. Dr Van de Hoef asked him if he understood what the document was and explained that its effect would be to "hand over his business dealings to his wife who could then conduct his business affairs for him.:' She read the document verbatim and.asked the testator if he understood it. He replied affirmatively and said, of his own volition, that he wanted his wife to conduct his business affairs and that he trusted her. He then made a mark on the document and Dr Van de Hoefwitnessed it. Also on 10 January, 1996 Mr Johnston visited the testator. Mr Johnston could see that the testator was "certainly sick" but he had not then been told that he was paralysed. The two men talked about the accident and the accident scene. The testator said that he was not sure what had happened. They then talked about the testator's condition. He said that he was very sore. The testator then turned the conversation to the fiuit farms. On their trip overseas in 1994 they had met Dierk Cordes, who expressed interest in marketing avocado paste and in buying an interest in the farms themselves. Negotiations for the sale of an interest in the farm and the manufacture and sale of avocado paste had continued from 1994 and were still in progress. Mr Cordes' decision depended upon a response from a German company that manufactured vegetarian sausage and which had expressed interest in utilizing avocado paste in its product. The testator asked Mr Johnston to inform him of the latest developments in the negotiations. He questioned Mr Johnston specifically about Mr Cordes and his interest in buying into the farms. They then spoke about the finances of the farming venture and the testator asked Mr Johnston "how were things at the bank?". Mr Johnston was able to allay his concerns because a lychee crop was being harvested which would alleviate their cash flow problems. The testator then asked -- 6 of 23 -- 6 what the avocado season "was going to look like". The testator spoke very slowly.' According to Mr Johnston "he was obviously seriously ill". This conversation has'a significance which will emerge later. Shortly after Dr Van de Hoefleft on 10 January, 1996 the testator spoke to the plaintiff. According to her evidence, he said: , "... I could have changed my will now, but I'll tell how I want it and please would you approach the lawyer about the changes I want. You get the copy out of the old one (his previous will kept in a safe at their home) and take that to the lawyer. Mimi (the defendant) doesn't need to be in my will anymore". He gave reasons for making no provision for his daughter. According to the plaintiff, the reasons were:- • his and the plaintiffs financial situation was not as secure as it had been when he made his previous will in 1985; • he had made substantial gifts of money and property to the defendant; and • the defendant stood to inherit her mother's substantial wealth when she died and part of that wealth had come from the divorce settlement. The plaintiff said that the testator had disliked the friction between his wife and his daughter evident at the hospital, though he did not give this as a reason for the change to the provisions of his will. He did, however, say that he did not like the disagreeableness and he did say "Mim can't be an executrix together with you because you would be in trouble with my son- in-law. I don't trust him". According to her account, the plaintiff said: "Don't you want to give anything to your daughter? You should give her something because you always promised her something when she was a young girl". The testator then decided to give her a third of the farming properties. That day or the next they spoke again about the proposed changes to his will and it -- 7 of 23 -- 7 occurred to the plaintiff that if the farms were sold in his lifetime then the will would make no provision at all for the defendant. She drew this to the testator's attention. His response was that if the farm sold "I can still make a new will". The plaintiff contacted the testator's solicitors and gave instructions for the preparation of the new will in accordance with what the testator had told her. She provided the solicitors with a copy of the testator's previous will made on 3 May, 1985. . What the law requires by way of testamentary capacity is well settled. "Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. " Per Hood J In the Will ofMary Wilson (1897) 23 VLR 197 at 199. Whether the testator possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined from all of the facts established in the case. See Boughton v Knight (1873) LR3P&D 64 at 67. If the testator spoke to the plaintiff in the terms related by her in evidence, the testator's testamentary capacity is demonstrated. He gave clear instructions for a new will. He understood the nature of the act he was instigating and the effect of what he proposed. He made an intellectual judgment between the claims of the two people who were the only members of his family: If I may anticipate, the defendant accepts that, if what the plaintiff said is true, then her entitlement to a grant of probate is made out. The defendant hotly disputes the veracity of the plaintiffs testimony. The will for which the plaintiff had given instructions was prepared by a solicitor ~mployed by Peter Wallace & Company, Ms Suzanne Pengelly (who had married and become Mrs Munt -- 8 of 23 -- 8 by the time of the trial). Mrs Munt has no recollection, apart from a diary memorandum she prepared, of receiving instructions· to prepare the will or of drafting it. She does recall being directed by Mr Wallace to attend the Princess Alexandra Hospital and have the testator sign his will. She recalls meeting the plaintiff in the ward and of the plaintiffs obtaining another witness, a nurse, to attend while the testator signed. Mrs Munt "went through" the terms of the will while holding the document in front of the testator. She explained in summary the identity of the execqtor and how the estate was to be distributed. The testator then spoke but Mrs Munt could not understand what he had said. The plaintiff explained that the testator had asked that the will be read in full. Mrs Munt complied. While she read the testator looked. at the will. Mrs Munt believes, but cannot remember, that she asked the testator if he understood the terms of the will. Mrs Munt's recollection is that the testator made his mark on the will by means of a pen placed in his mouth. Mrs Munt's opinion was that the testator had understood the will. The basis for her opinion was that nothing occurred to her to suggest that he did not. The other witness was an enrolled nurse, Mr Raymond Dwyer. He had been at the nurse's station when the plaintiff asked for someone to witness the execution of the will. When he went into the ward, the testator had been propped upright in bed and a woman, whom he understood to be a lawyer, "went bit by bit through what was written on the will and explained that to (the testator)". Mr Dwyer thought that the testator had made his mark by a pen placed in his hand which the plaintiff assisted to move. Mr Dwyer can recall the will being read in full. He watched the testator while this happened and thought that he "understood what was explained to him and he seemed attentive to what they were saying". The basis for his opinion was that he watched Mrs Munt as she read the will and, when she finished, he realised that the will was to be signed and "when they went to -- 9 of 23 -- 9 place the pen in his hand he ... went to accept the pen ... ". Mr Dwyer cannot recall anything said on the occasion but his recollection is that the testator "seemed to realise that they were talking to him and his eyes were on the people as they spoke and also at t~e notes that they were holding in front ofhim and, as I say, when they went to hand the pen to him he realised that he had to sign something" . The will was short and straightforward inits terms. It said: . "THIS IS THE LAST WILL AND TESTAMENT of me RICHARD NATHANIEL BEIM of 53 Australia Court, Scarborough in the State of Queensland. 1. I REVOKE all former Wills and Testamentary Dispositions at any time heretofore made by me AND DECLARE this to be my last Will and Testament. 2. I APPOINT my wife MARGARETE BEIM of 53 Australia Court, Scarborough in the said State as sole Executrix and Trustee of this my last Will and Testament and the said MARGARETE BEIM is hereinafter referred to as my Trustee. 3. I GIVE DEVISE AND BEQUEATH the whole of my said estate both real and personal whatsoever and wheresoever situate or over which I may have any power of appointment disposition or control unto and to the use of my Trustee upon trust with power to sell call in and convert into money such part thereof as shall not consist of money and with power to my Trustee to postpone such calling in and conversion of any part thereof for as long as my Trustee shall think fit, and my Trustee will hold my estate upon the following Trusts:- ' (i) To pay all my just debts funeral and testamentary expenses and all probate succession federal estate and other duties arising by reason of my death; (ii) I give to my daughter MARGARET HENRIETTE CHAMPION BEIM a one third share of my property situated at Childers in the said State and known as the Childers Farm Complex for her own use and benefit absolutely; (iii) As to my personal effects and possessions I give to my wife the said MARGARETE BEIM which she shall distribute in her absolute discretion; (iv) I give my real property situated at 53 Australia Court, Scarborough in the said State and the contents situated therein to my wife the said MARGARETE BEIM for her own use and benefit absolutely; (v) As to the rest and residue of my estate both real and personal for my wife the said MARGARETE BEIM for her own use and benefit absolutely; 4. I EMPOWER my Trustee:- (a) sell, mortgage lease or otherwise dispose of any portion of my estate whether as a whole or in parts on terms or for cash or to postpone such sale,mortgage or lease and to invest and re-invest the proceeds of such sale, mortgage or lease as my Trustee in his or her absolute discretion think fit; (b) to apply the whole or any part of the income or capital of the share of which any infant beneficiary may be entitled in expectancy contingency or otherwise in or towards his or her maintenance education support benefit or advancement in life and to pay the same directly or to his or her guardian or person or institution on -- 10 of 23 -- 10 his or her behalf without being liable to see to the application thereof or being responsible for the loss or mis-application thereof and credit shall be allowed to my Trustee for payments so made by whomsoever shall ultimately become entitled to share in my estate; (c) to distribute my estate in kind. IN WITNESS WHEREOF... " The challenge to the testator's capacity to make a will is based entirely upon the expert opinion of Dr Glenys Berry, a highly qualified physician in geriatric medicine. Dr Berry examined the testator on one occasion, on 14 March, 1996, but her opinion was predicated upon entries made by medical siaffin the hospital records of the testator's stay in the spinal unit. Entries in those notes record that, on occasions, the testator was confused and/or agitated. Dr Berry explained that confusion, when used in this context, is a term to describe poor attention, poor concentration and an impaired ability to understand present life circumstances and to make appropriate judgments regarding subsequent behaviour. When" confusion" or "confused" appears in a hospital record, it normally indicates that a nurse has observed behavioural manifestations in the patient such as "making inappropriate motor responses, like they are picking at the intravenous drug delivery, or they may be pulling at the oxygen mask or thrashing or resisting nurses' attentions or saying things that would indicate that they don't know where they are, or repetitively asking something that they have just asked before", which indicate the underlying confused state. An entry in the hospital records for 13 January, 1996 notes that the testator was restless, talking to himself and not aware of place or time. Dr Berry thought that the entry indicated an acute confusional state or an impairment of cognition, attention and concentration. This is, of course, two days before the will was signed. On 17 January, 1996 a note records that the testator was "asking where he was and why and whose fault it was". Dr Berry thought the note indicated that the testator was still disorientated and had a deficit in his short term memory so that he could -- 11 of 23 -- 11 not recall what lead to his hospitalisation. The note indicates to Dr Berry that the testator "is still as confused as he was on the 13th". I mention these two entries in particular because they respectively pre-date and post-date the execution of the will. There are other entries to similar effect on which the defendant and Dr Berry rely. The effect of her evidence is that the testator suffered a chronic state of intellectual impairment which was precipitated by the accident. The. hospital records indicate that on occasions the testator's cognitive functioning was impaired. There is nothing in those records to suggest a reason why his mental state might fluctuate. The impairment to the testator's cognitive functioning must therefore have been permanent after the accident. Dr Berry said: "With regard to his biochemistry and haematology there are no changes that would indicate the cause for the ongoing confusion... therefore you would have to have another explanation as to the level of confusion other than something outside of the brain... ". Dr Berry answered affirmatively when asked: "But the haematology and chemistry excludes factors external to the brain as explaining the confusion?" .. Dr Berry thought that, prior to his accident,' the testator was showing early signs of dementia or was approaching the point where he would exhibit such signs. People of his kind who suffer a "significant medical situation", such as tetraplegia, exhibit acute confusion from which they do not recover. For example, a person who has mild dementia and suffers a heart attack may become acutely confused because "a stress outside the brain makes the brain function less well". The closer the person is to the point of "teetering on the balance of a dementing illness, the more likely they are to not come out of that acute confusion". A relatively simple test to determine basic levels of consciousness was administered to the testator during his hospitalisation. The test is named Mental Status Questionnaire or MSQ for -- 12 of 23 -- 12 short. It isa measure of the subject's content of consciousness. Questions are directed to the patient about his orientatiori in time arid place; his knowledge of current events; and his knowledge of past events in his life. A score of n out of ten is given. The result documents the patient's cognitive function at the time the test is administered. It says nothing about the cause of any cognitive impairment arid nothing about what the mental state of the patient was prior to the administration of the test or subsequent to it. • The testator was first tested by a MSQ on 27 February, 1996. He scored lout of 10. Subsequent scores on the same test were uniformly low. His highest score was 4 or 5 out of 10. Dr Beny herself examined the testator on ·14 March, 1996. On that occasion he appeared awake and alert with no obvious manifestations of confusion. Nevertheless he scored only lout of 10 on the MSQ. Dr Berry thought that this indicated an impairment in his cognitive functioning which was not apparent from any behavioural manifestation or even from casual conversation. Although Dr Berry would not equate a low score on the MSQ to lack of testamentary capacity, she thought that such a score raised grave doubts about the existence of such capacity which would have to be verified by specific questioning designed to elicit responses other than "yes" or "no" which would indicate that the testator truly understood what he was doing and the reasons for his dispositions. As I have said, the essence of Dr Beny's evidence is that, given clear indications in the hospital records of confusion and low scores on tests of cognitive functioning and the absence of any biochemical explanation for that mental state, one must conclude that it was caused by an impairment in cerebration and was permanent. There was no external cause such as infection or the ingestion of drugs which might have caused the recorded mental state. There is therefore no reason to suppose that the mental state might fluctuate with the existence or removal of the external cause. -- 13 of 23 -- 13 Dr Berry's thesis precludes the testator being at any time after 3 January, 1996 capable of normal intellectual functioning. If Dr Berry is right, the testator must, throughout the time he was in hospital, have suffered from short term memory impairment, concentration deficit; an impaired ability to comprehend his personal situation and its effect on his interpersonal relationships, and an impaired ability to make rational judgments about his future. As well, he would have had an impaired ability to comprehend what was going on around him. • If, therefore, the evidence credibly establishes that on occasions the testator did exhibit signs of normal intellectual functioning, Dr Berry's thesis is wrong. She candidly accepted this and frankly conceded that the description of the testator's behaviour when signing the power of attorney and when discussing with the plaintiff his instructions for a new will is quite inconsistent with her depiction of the testator's capacity. She also accepts that if the testator had, in fact, conversed with the plaintiff in the terms which I have earlier set out then the testator did in fact know and understand what he was doing. The defendant's case is that the evidence of the plaintiff is dishonest and is t,o be disregarded. The plaintiff was subjected to a vigorous cross-examination as to credit. I am invited to disbelieve her because, if the testator's condition was as Dr Berry constructs it from the hospital records, he was not capable of the conversations which the plaintiff asserts she had with her late husband in which she received instructions for his will. This is the crux of the case. If the conversations occurred as the plaintiff recounted there can be no doubt that the testator had the requisite capacity. The respective arguments are that Dr Berry is wrong because the testator's capacity is demonstrated by his conversation with the plaintiff; and that the conversations cannot have occurred because it is demonstrated from Dr Berry's interpretation of the hospital records that he was not capable of such intellectual functioning. -- 14 of 23 -- 14 I prefer not t6 resolve this contest by my subjective assessment of the plaintiffs testimony. Corroboration for the plaintiffs evidence is found in two events occurring on 10 January, 1996. These are the conversations I have rehearsed: (a) between Dr Van de Hoef and the testator and (b) between Mr Johnston and the testator. No challenge was directed to Dr Van de Hoefs evidence. She seemed to me a reliable witness. Dr Berry accepts that if the testator acknowledged his understanding of the power of attorney in the terms recounted by Dr Van de Hoef he clearly understood what he was doing. Mr Johnston's evidence points the same way. He spoke to the testator about his accident and ofbtisiness matters which were current. The testator demonstrated short term memory and a grasp' of current business and financial affairs. If Dr Berry's thesis were correct the testator might appear lucid but would lack short term memory, orientation and the capacity for rational thought processes. Yet he exhibited all these when he spoke to Mr Johnston. On 8 February, 1996 Dr Van de Hoef examined the testator professionally in her role as visiting psychiatrist. He had expressed thoughts of suicide and the hospital authorities requested an examination. She did not administer an MSQ but did subject the testator to an extensive examination to determine his mental state. She questioned him about his expressed contemplations of suicide. He told her that he had recently been thinking that death was a "reasonable option". He felt worthless and a burden to his wife. He found his paralysis intolerable. He had been accustomed to leading an active life. As a result of her examination, Dr Van de Hoef concluded that the testator was not "deluded or demented or suffering from any sort of hallucinatory experience". He was not "psychotic or even clinically depressed". His thoughts of suicide were an intellectual response to his predicament and suicide was regarded by him as one of the options available to him. He was not "deluded, confused or depressed". This evidence seems to me to reveal a tough mind dealing realistically, if terribly, with a -- 15 of 23 -- 15 horrible reality. Dr Van de Hoefs description of the testator's thought processes is impossible to reconcile with the defendant's portrayal of the testator as a confused, forgetful and muddled old man. Dr Berry conceded that an examination of mental state by a competent psychiatrist should have revealed whether the patient was confused or whether he was orientated in time, place and person. Dr Vande Hoef conducted such an examination and found the plaintiff rational and clear thinking. There is no reason not to accept Dr Van de Hoefs evidence. It was not challenged. No basis for challenge is apparent. What I have said shows, in my opinion, that Dr Berry's thesis is wrong. There is cogent . evidence that the testator was for substantial periods of his hospitalisation of unimpaired intellect. There is equally no doubt that at times he was confused and disorientated but I cannot accept Dr Berry's evidence that he would have been so situated at all times. Dr Hill gave evidence that confusion of the type he noted in the testator might have a number of causes. In the testator's case, he thought that the cause was the strangeness of his environment, particularly as he drifted in and out of sleep, and some of the medication prescribed, such as morphine. The reason advanced by the defendant for disbelieving the plaintiff is without substance. In particular, the plaintiffs assertion that on 10 January, 1996 the testator was capable of the conversation she narrated is amply supported by Dr Van de Hoef and Mr Johnston. I did not think it right to decide the critical question by my subjective. assessment of the plaintiffs credibility, but having found objective support for her evidence, I express my view that the plaintiffs testimony was credible and reliable. I thought she emerged well from a vigorous and searching cross-examination which touched matters of sensitivity of peripheral relevance to the issues. I thought she displayed good sense, intelligence and dignity. I accept her account of the conversation with the testator when he gave instructions for his will. -- 16 of 23 -- 16 I should note that Dr Hill obserVed the testator's mental state to fluctuate. There were times both during the day and at night wh€m he was confused and was not aware of where he was. But, on "many, many occasions, he was absolutely lucid and had long and detailed conversations" with Dr Hill. At these times, Dr Hill thought, the testator was capable of understanding the nature of testamentary provision, recalled his property and was aware of his family. In fact, Dr Hill can recall that on a number of occasions the testator endeavoured to persuade him to buy the avocado farms. Counsel for the defendant argues that the lucidity which Dr Hill observed is not necessarily indicative of testamentary capacity. He relies upon Dr Berry's evidence that it is possible for people with dementia to conduct an apparently normal conversation relying upon long term memory. Such a conversation is repetitive and rooted in the past but nonetheless appears rational. If questioned about current circumstances affecting personal details for appreciation of place and time the speaker will show a defective intellect. It is true that Dr Hill's specialty is not psychiatry or geriatrics. It is also true that he did not examine the testator with a view to determining whether he had testamentary capacity. Nevertheless I find it difficult to believe that Dr Hill could have many detailed conversations with the testator and not realise that he was dementing. It was anxiety expressed by the testator to Dr Hill that he could not sign documents in connection with his business that prompted Dr Hill to suggest that the testator provide the plaintiff with power of attorney. If Dr Berry were right in her diagnosis the testator could not have had such a conversation nor, I suspect, would he have tried to interest Dr Hill in buying the farms: The testator's request for a rabbi when he thought he might die and his contemplation of suicide so as not to be a burden on his wife appear to me to show a degree of awareness of self and circumstance quite inconsistent with Dr Berry's portrayal. The defendant relies upon two other matters as indicating a lack of capacity. They are -- 17 of 23 -- 17 not sufficient to overcome the effect of the plaintiffs evidence. The first is that prior to his accident the testator was showing signs of forgetfulness indicative of early dementia. The defendant does not submit that prior to his accident the testator lacked testamentary capacity but argues that such pre-accident signs of cerebral malfunction support Dr Berry's opinion that the accident was enough to exacerbate his intellectual functioning and deprive him of a clear-thinking brain. • I have rejected Dr Berry's opinion. It is, therefore, of no consequence that there may have been signs of cerebral disorder prior to the accident. It does not matter that there may be a foundation to establish Dr Berry's diagnosis when the diagnosis itself is shown to be wrong. Because of the findings I have made, it is not necessary to deal in detail with the evidence put forward to establish signs of early dementia in the testator and I do not wish to increase the tension that already exists between the defendant and her stepmother. I do, though, indicate that I do not accept most of what was said by the defendant and Mr Alldritt. The defendant was unable to provide any particulars of her observations that the testator was showing signs of dementia. One occasion on which she claimed to have observed such a phenomenon was her wedding when the testator was supposed not to understand what was required of him. If such an event occurred the defendant could scarcely have forgotten it. It was only four years ago. She could give no detail. The plaintiff was not cross-examined about the event. Much was made of an episode which occurred in June, 1995 when the testator met Mr Alldritt at Eagle Farm Airport to drive him to Redcliffe to discuss the sale or development of real estate with an agent there. The testator forgot where he had parked his car which was eventually found. The tale appears to have grown in the telling. That was certainly the plaintiffs reaction to the suggestions put in cross-examination. It was put to the plaintiff that, having found the car, the testator drove Mr Alldritt to -- 18 of 23 -- 18 Redcliffe but could not find the agent's office. He had forgotten its location. When Mr Alldritt gave evidence the event changed character somewhat. Mr Alldritt said that the testator found the agent's office but was unable to find his way home to Scarborough. It is a significant departure in a very short story. Mr Alldritt was in court when the plaintiff was cross-examined and the event put to her. There seems no doubt that the testator did, embarrassingly, misplace his car in the airport car park. I am not satisfied that the misdemeanour was as gross as has been described. Whatever its cause I do not doubt that the testator exhibited, after his accident, sufficient rationality and lucidity to make a will. The second matter relied upon comes from the terms of the will itself. The points are:- • the defendant is described by her maiden name, Margaret Henriette Champion Beim, when she had changed her given names by deed poll to Mim and had married so that her surname was altered; • the will devised the testator's real property situated at 53 Australia Court, Scarborough to the plaintiff when the property had been transferred to her previously; and • the provision made for the defendant was inexplicable given her status as an only child and the close and affectionate relationship they enjoyed. I will deal with these in tum: The description of the defendant in the willis undoubtedly taken from the previous will which had been given to Mrs Munt when she was instructed to prepare the new one. The testator did not ask the solicitor, when the will was read to him, why his daughter was not named "Mim Alldritt". I do not think that this indicates any lack of testamentary capacity. It is not entirely clear that eitherthe testator or the plaintiff knew that the defendant had changed her given names -- 19 of 23 -- 19 to "Mim". They both knew that she had married and become Mrs Alldritt. Neither the testator or the plaintiff queried Mrs Munt's description of the defendant in the will. There is no doubting that the plaintiff was of sound mind, memory and understanding when the will was read. I think that the lack of challenge to the solicitor's description shows no more than the client's reluctance to question the professional's manner of performing a retainer and, perhaps, a preoccupation with more important things. The defendant was adequately described in the will. Everyone knew who "Margaret Henriette Champion Beim" was. The house at 53 Australia Court had been owned by the plaintiff and the testator as joint tenants but he transferred his interest to the plaintiff in 1989. The point about the devise of the plaintiffs house loses force when it is realised that on 15 January, 1996, after he had executed the will, the testator realised that the house was already the plaintiffs. He discussed it with her and when she asked whether the will should be changed, he said "don't bother about it, it's good that it's in, this way we (are) really sure, 200% sure, that you get that house ... ". I accept the plaintiffs evidence of the conversation just recounted. It indicates an awareness of his property suggestive of testamentary capacity. A further point relied upon by counsel for the plaintiff is that previous wills had contained devises of the house at 53 Australia Court to the plaintiff though it was in fact jointly owned and would pass by survivorship. It is conceded that on the earlier occasions when he made a will the testator was of sound mind, memory and understanding. The presence of such a devise in the impugned will does not, in the circumstances, indicate a lack of capacity. The third point is answered by the evidence which establishes testamentary capacity. The reasons given for the new will explain the diminished provision for the defendant. The testator's financial position had deteriorated in the years prior to his accident. He had -- 20 of 23 -- 20 spent too much on building the house at Scarborough. He had invested more in the farms than he could hope to recover. By all accounts (save that of the defendant and Mr Alldritt) the marriage betWeen the testator and the plaintiff was a close and affectionate one. Dr Hill described him as being devoted to the plaintiff. He had been an active and energetic man who had not bowed to advancing years. When forced to confront the reality of his immobility and the distinct possibilitY of imminent death it is not unnatural that his thoughts should turn to providing for his wife who, though younger, was still elderly. It is not, I think, surprising that he should wish to ensure that the plaintiff was financially secure. It is not suggestive of irrationality that he should prefer the plaintiffs financial security to the defendant's. She is young, well educated and financially independent. She had recently married a successful management consultant who modestly described his work as "project-managing large multi-million dollar contracts for Esanda Finance as mortgagee in possession with respect to a number of properties and that involved completing development work gaining approvals selling down and the like". Mr Alldritt and the testator had met and spoken on a riumber of occasions prior to his accident. It is urilikely that the testator would have gained an impression other than that Mr Alldritt was able to provide handsomely for his daughter. The other reasons given by the testator for the changing bequests are not, on the evidence, shown to have been without basis. It is certairily true that the testator had made generous gifts of cash and property to· the defendant during his lifetime. Moreover, the provision made for the defendant in the will was, on the information available to the testator, substantial. There were negotiations on foot for the sale of an interest in the farm properties to Mr Cordes and the prospect of lucrative sales of avocado to make food paste. Events since his death suggest that the farms are worth much less than was earlier hoped, -- 21 of 23 -- 21 but this does not show irrationality in the testamentary disposition. The defendant was not told that her father had made a new will. She believed, she said, that she would share his estate equally with the plaintiff. This, she says, is what the testator had told her he intended. The fact that he did not tell her of the alteration is put forward as indicating that he cannot have known what he was doing when he made his latest will or that he quickly forgot about it. In either case a grave suspicion is raised that he lacked testamentary capacity. • I have already found, on evidence which seems to me sufficient, that the testator had the necessary capacity. One can think of reasons, other than the ones advanced by the defendant, why the testator, given his situation, may not have told his daughter about the change. The defendant sought to rely upon two letters written by the testator's solicitors after his accident. The first, dated 13 March, 1996, was to solicitors representing the driver of the other vehicle involved in the accident. The letter said that the plaintiff was "having difficulty obtaining full details" from the testator. The details requested were of the property insurance covering the testator's car. The second letter written on 15 May, 1996 was to insurance assessors. It said "we have been unable to obtain a full statement from our client because of the injuries sustained in the accident. We are in the process of obtaining same ... ". The defendant submits that the difficulty in obtaining information from the testator about insurance and the circumstances of the accident was occasioned by cerebral malfunction. The testator could not provide the information because of his confused mental state. This submission seems to me to draw the long bow beyond its breaking point. The most likely explanation for the testator's ignorance of the accident is the one advanced by Dr Hill: the testator suffered a degree of retrograde amnesia when hit on the head in the accident. The plaintiff explained that there was initial uncertainty about the question of insurance because of a misunderstanding about who should have effected cover. I conclude that the testator had the requisite capacity on 10 January, 1996 and 15 January, -- 22 of 23 -- 22 1996. With the benefit of hindsight, it would have been preferable for Mrs Munt to ask some questions of the testator to provide an unchallengeable record of his capacity. The evidence of events when the will was executed is not as comprehensive as it is for 10 January, 1996 when he gave instructions for the will. The opinions of the attesting witnesses that the testator was competent to make a will is admissible but not compelling evidence. The court must judge from the facts deposed to rather than their opinions. See Bailey v Bailey (1924) 34 CLR 560 at 572. The evidence does, though, point to the absence of any indication that the testator lacked comprehension so as to alert Mrs Munt or Mr Dwyer to incapacity. The latter's testimony does suggest that the testator knew what he was doing. The conversation between the testator and the plaintiff later that day about the disposition of the house is sufficient to establish that the testator understood what he had done. The defendant alleged that the will had been procured by the exertion of undue influence over the testator by the plaintiff. Mr Newton candidly conceded that if the plaintiff succeeded in proving that the testator had capacity to make his will the evidence which established that point would disprove its procuration by undue influence. I agree. The evidence which I have accepted as showing that the testator was of sound mind, memory and understanding establishes that he was not overborne. I therefore pronounce for the force and validity of the last will and testament of Richard Nathaniel Beim, deceased, dated 15 January, 1996, Exhibit 6 in these proceedings, and order that probate of the said will be granted to the plaintiff. -- 23 of 23 --