ROGERS & ANOR v ROGERS [2026] SASC 115

First & Second Applicant: RACHELINE ROGERS, MAURICE ALADJEM Counsel: MR S OWER KC - Solicitor: WALLMANS LAWYERS Respondent: CATHERINE JANE ROGERS Counsel: MR A HARRIS KC WITH MR S POTTS - Solicitor: ILES SELLEY LAWYERS Interested Party: TAMARA SOLLY No Attendance Hearing Date/s: 17/03/2026 to 24/03/2026, 07/04/2026 to 10/04/2026, 09/05/2026, 29/05/2026 File No/s: CIV-23-004989 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. ROGERS & ANOR v ROGERS [2026] SASC 115 Judgment of the Honourable Justice B Doyle 14 August 2026 SUCCESSION - ADMINISTRATION OF ESTATE SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS The respondent, a long term friend of Paul Gerard Macdonald (‘the deceased’), propounds as his last will a document executed by him at the Royal Adelaide Hospital (‘RAH’) on the afternoon of 10 February 2021 (‘the will’). The deceased’s two cousins (‘the applicants’) were his closest living relatives at the time of his death. They oppose that relief and seek an order for a grant of letters of administration of the deceased’s estate to them because of an intestacy. At the time of his death, the deceased was aged 70 years. He had been sick with cancer for about five years. He had no spouse or children. His estate primarily comprised his home which he had inherited from his parents. By the will he divided his estate equally between the applicants and the respondent. The deceased was admitted to the RAH on 3 February 2021. By the time he made the will, he had been told that he had days or weeks to live, and he was receiving palliative care. On 12 February 2021, he was transferred to hospice care at the Queen Elizabeth Hospital, and there he died on 18 February 2021. There were times throughout his admission at the RAH where he suffered hallucinations, and other times when he suffered obviously impaired attention, or was obviously confused. There were other times where he interacted appropriately with friends, family, nurses and treating doctors. The solicitor who took instructions and prepared the will considered that he was responsive and lucid and did not appear to be delusional. She did not observe anything that caused her to doubt the deceased’s capacity. There was no contention of undue influence. The only disputed question is the deceased’s testamentary capacity and, in particular, the question whether, at relevant times, he lacked the ability -- 1 of 192 -- to evaluate and discriminate between the strength of the claims of persons upon his estate, with a view to making a deliberative choice between them. A question having been raised about capacity by, inter alia, the opinions expressed by two geriatricians who engaged in a retrospective assessment, it was accepted that the respondent bore the onus of establishing capacity. Held, pronouncing for the force and validity of the will: 1. there was no real dispute, and the Court finds in any event, that the deceased had an understanding of the nature and effect of a will and the nature of his estate, and that the deceased knew and approved the contents of the will; 2. on a consideration of the entirety of the evidence, the respondent has demonstrated, and the Court is comfortably satisfied, that the deceased was not at the time he gave instructions for and made the will suffering from a disorder of the mind so that he lacked the ability to evaluate and discriminate between the respective strengths of the claims of persons upon his estate, with a view to making a deliberative choice between them. Surveillance Devices Act 2016 (SA) ss 3, 4(1), 9, 10, 11, referred to. Banks v Goodfellow (1870) LR 5 QB 549; McInerney v D’Ortenzio (formerly O’Dea) [2026] SASCA 7; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007; Worth v Clasohm (1952) 86 CLR 439; Moloney v Hayward [2022] SASC 79; O’Dea v McInerney [2024] SASC 110; Tobin v Ezekial (2012) 83 NSWLR 757; Carr v Homersham (2018) 97 NSWLR 328; Bailey v Bailey (1924) 34 CLR 558; Thomas v Nash (2010) 107 SASR 309; Revie v Druitt [2005] NSWSC 902; Briginshaw v Briginshaw (1938) 60 CLR 336; Roche v Roche [2017] SASC 8; Chronis v Karan [2021] SASC 87; Re Estate of Griffith (1995) 217 ALR 284; Gibbons v Wright (1954) 91 CLR 423; Re Estate of Budniak [2015] NSWSC 934; Robertson v Barker [2021] NSWSC 1682; Chalik v Chalik [2025] NSWCA 136; Wild v Meduri [2024] NSWCA 230; Attwell v Morgan [2019] WASC 182; Guthrie v Spence (2009) 78 NSWLR 225; Nicholson v Knaggs [2009] VSC 64; Foster v Meller [2008] VSC 350; Hawes v Burgess [2013] EWCA Civ 74; McInerney v O’Dea [2024] SASC 110; Chant v Curcuruto [2021] NSWSC 751; Plunkett v Bull (1915) 19 CLR 544; Potter (A Pseudonym) v The King [2026] HCA 25; Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; In the matter of Greyhound Racing SA Ltd [2023] SASC 63; R v Kolaj [2026] SADC 9; O'Sullivan v Farrer (1989) 168 CLR 210; In the matter of Hyde [2023] SASC 146; Osland v Secretary of the Department of Justice (2008) 234 CLR 275; Nobarani v Mariconte (No 2) [2017] NSWCA 124; Re Estate Capelin (deceased) (2022) 107 NSWLR 461; Re Estate Barzacca [2025] NSWSC 1252; Fuda v Dawes [2026] NSWSC 360; Re Estates Brooker-Pain and Soulos [2019] NSWSC 671; Groom v Police [2015] SASC 101; Nominal Defendant v Rooskov (2012) 60 MVR 350, [2012] NSWCA 43, discussed. -- 2 of 192 -- ROGERS & ANOR v ROGERS [2026] SASC 115 Civil 1 B DOYLE J: The respondent, Catherine Jane Rogers (‘Cate’),1 propounds as the last will of Paul Gerard Macdonald (‘the deceased’ or ‘Paul’) a document executed by him at the Royal Adelaide Hospital (‘RAH’) on the afternoon of Wednesday, 10 February 2021 (‘the will’).2 2 The deceased’s cousins, Racheline Rogers (‘Lynn’) and Maurice Aladjem (‘Maurice’) (collectively ‘the applicants’) oppose that relief and seek an order for a grant of letters of administration of the deceased’s estate to them because of an intestacy.3 A OVERVIEW 3 The deceased had been admitted to the RAH on the afternoon of 3 February 2021, the day of his 70th birthday. As will be explained, he had first been diagnosed with cancer of the colon in 2016 and, despite surgical intervention and chemotherapy, the disease progressed. 4 It was quickly determined following a CT scan of the deceased’s abdomen and pelvis that there was extensive progressive metastatic disease. He was informed on Thursday 4 February 2021 that there were no further treatment options available for his cancer and that his care should focus on symptom management with palliative care. The following day, Friday 5 February 2021, a consultant oncologist discussed with the deceased that he may only have days or weeks left to live. 5 On Saturday 6 February 2021, the deceased was visited in hospital by Cate, who had travelled from Queensland, as well as Lynn. There was a discussion about the deceased’s affairs. 6 A document relating to his affairs was prepared, partly by Lynn and partly by Cate, and signed by the deceased (the ‘note’). It identified Cate and Lynn as the ‘trustees’ of the deceased’s residence in Firle to be held equally between Lynn, Maurice, Nicole and Natasha Rogers and Cate. Nicole and Natasha Rogers are Lynn’s daughters. No party contends that the note is a will. 7 On Tuesday 9 February 2021, a social worker contacted Adelta Legal and spoke with Ms Cortazzo, a solicitor. Ms Cortazzo agreed to attend at the RAH the following morning. 1 The respondent and the first applicant are not related. To avoid confusion, first names will be used to describe the parties. 2 Alternatively, Cate propounds a temporary pro forma style will (‘the pro forma will’) which the deceased executed earlier that day. 3 There is no suggestion that the deceased had ever made a will before he was admitted to the RAH. -- 3 of 192 -- [2026] SASC 115 B Doyle J 2 8 Ms Cortazzo visited the deceased on the morning of Wednesday 10 February 2021, and took instructions for the preparation of a will. She prepared, and the deceased executed, a temporary will (the ‘pro forma will’). Ms Cortazzo returned to the office to prepare a more formal and complete document. 9 Ms Cortazzo and a colleague, Ms Johns, returned to the RAH at about 5.30 pm and met again with the deceased. The deceased executed a will, witnessed by the solicitors. Under the will made on 10 February 2021, the deceased: • appointed Cate and Lynn as his executors; • gave his residuary estate to Cate, Lynn and Maurice in equal shares; and • recorded his wish to be cremated and that his ashes be stored in an urn and given to Cate. 10 The deceased was transferred to the Queen Elizabeth Hospital (‘QEH’) on 12 February 2021. He died there on Thursday 18 February 2021. 11 It is not in dispute that at times whilst he was at the RAH, the deceased suffered from hallucinations and that, at other times, he appeared generally lucid. Whilst at the RAH, he interacted on numerous occasions with a number of nursing medical staff as well as Cate, Lynn, Maurice and a neighbour, Ms Sofie Ikon. 12 There was evidence at trial directed to the question whether, in view of his medical history (which included hypertension, diabetes and hypercholesterolaemia), he was, at the time of his admission, suffering from a progressive cognitive impairment. Different views were expressed about what could be inferred from a CT scan of his brain, although all experts accepted that a diagnosis of cognitive impairment could not be made from a scan alone. The deceased’s medical history, and critically, his observed behaviour and cognitive function, were important to any such diagnosis. 13 The will is rational on its face and was duly executed. There is no assertion of undue influence. However, because there was evidence that raised an issue about testamentary capacity, it is accepted that the outcome of this case turns on whether Cate has discharged her onus of demonstrating that the deceased had capacity to make a will on 10 February 2021.4 Reflecting the agreed location of that onus, Cate was dux litis. 14 As will be explained, the Court received a significant body of evidence in the form of witness testimony, documents, photographs and audio recordings, directed to a range of issues including the relationships between the deceased and the parties 4 Carr v Homersham (2018) 97 NSWLR 328 at [46]-[47] (Basten JA, Leeming JA agreeing), referred to in Moloney v Hayward [2022] SASC 79 at [275] (McMillan AJ). -- 4 of 192 -- [2026] SASC 115 B Doyle J 3 to this litigation, observations made of the deceased, and the deceased’s mental and physical health. The dispositive issue 15 Whilst the evidence adduced by both parties was rigorously tested during the course of the trial, and whilst, in a general sense, all of the evidence assists in providing an evidentiary context in which to resolve the dispositive issues, there is, in the end, one dispositive issue. 16 It concerns the third limb of the Banks v Goodfellow5 test of testamentary capacity, as understood in modern Australian law. By the conclusion of the trial it was not in real dispute, and I find, that the deceased had an understanding of the nature and effect of a will and the nature of his estate. 17 The question is whether it has been shown that the deceased was not suffering a disorder of the mind so that he lacked the ability to evaluate, and discriminate between, the respective strengths of the claims of persons upon his estate, with a view to making a deliberative choice between them. The applicants’ main contentions 18 The applicants characterise this as a question involving the deceased’s executive function. They contend that executive function is conceptually distinct from other domains such as memory or orientation. It is a higher-order domain encompassing a range of interrelated mental processes enabling an individual to plan, organise, initiate, sequence and regulate goal-directed behaviour. It includes the capacity to assess information, weigh competing considerations, make decisions and monitor and adapt behaviour in light of changing circumstances. 19 In the course of closing submissions, the applicants made clear that: • whilst there may be a dispute about the precise nature and extent of the deceased’s relationship with Cate, it is accepted there was a longstanding friendly relationship between the two. Cate could not be said to be a surprising object of the deceased’s will, but nor, submitted the applicants, could she be said to be an obvious object; and • whilst there was evidence that the deceased experienced episodes of hallucination whilst he was in hospital, it is not suggested that he was hallucinating, or was otherwise delusional, when, on 10 February 2021, he 5 (1870) LR 5 QB 549. An understanding of the claims and a capacity to make an assessment of them, together with the absence of a mental illness, disorder or delusion that would poison the person’s attention, pervert their sense of right, or prevent the exercise of their natural faculties in a way that alters how they distributed their assets are sometimes described as comprising the third and fourth limbs of the Banks v Goodfellow test, but in these reasons I consider them together. -- 5 of 192 -- [2026] SASC 115 B Doyle J 4 provided instructions to solicitors about the pro forma will or the will, and executed those documents.6 20 These acknowledgments render it less critical than it might have been to engage in an exhaustive analysis of the significant volume of evidence about the deceased’s relationship over many years with Cate, or of the detail of the hospital notes and other medical evidence insofar as it might inform an hour-by-hour analysis of the deceased’s condition whilst in hospital. That said, a chronological survey of the deceased’s time in hospital is helpful in order to place the issues in a proper context, and to give a sense of the deceased’s demeanour and disposition over the days surrounding the creation of the will. It also assists in determining, where relevant, which evidence as to the parties’ interactions with the deceased is more likely to be reliable. 21 On the applicants’ case, the observations made of the deceased in hospital are in part a manifestation of a cognitive impairment from which the deceased was suffering prior to his admission. In closing submissions, the applicants made clear that their case was not based upon a deterioration or adverse fluctuation in the deceased’s cognitive state during his time at the RAH. It was not their case, for instance, that the deceased may have had capacity for periods when first admitted but became progressively incapacitated over the ensuing days.7 22 Rather, their case was that the evidence, including most relevantly the opinions of two consultant geriatricians, Dr Alicia Innis and Dr Jane Hecker, supported a finding that at the time of his admission the deceased was suffering from a cognitive impairment, or that there was at least a risk that he was suffering from a cognitive impairment. The applicants submitted that as relates to the third limb of Banks v Goodfellow, the respondent has not discharged her onus of showing that the deceased possessed the executive function necessary to weigh the competing demands on his estate and make a deliberative choice about them. 23 The applicants submitted that: • the evidence of the medical professionals who treated the deceased was not directed towards an assessment of testamentary capacity; • the observations made by lay witnesses to the effect that the deceased was of sound mind and was conversing responsively and rationally do not demonstrate executive function of the requisite kind; • the audio recordings of conversations between Cate and the deceased in hospital are not demonstrative of executive function; 6 Tr 1001.3-10, Tr 1006.23-32, Tr 1010-1011. 7 Tr 1030.1-16. -- 6 of 192 -- [2026] SASC 115 B Doyle J 5 • the fact that the deceased was able, unprompted, to identify or describe his estate is not demonstrative of an ability to engage in reflective deliberation; and • the solicitor who took instructions and prepared the will (Ms Cortazzo) did not ask questions designed to expose the deceased’s capacity to weigh the competing demands on his estate. 24 The applicants accepted that in some cases, the terms of a will may self- evidently demonstrate the capacity to weigh competing demands. However, they emphasised that in the present case: • when the note was prepared, the deceased appeared to want to benefit Natasha and Nicole. They were then omitted from the pro forma will and the will; and • when Ms Cortazzo first took instructions from the deceased, he did not mention Maurice as a family member or beneficiary. It was only when asked a question about other family that he mentioned Maurice and expressed a desire to include him. 25 The applicants submit that in circumstances where the reasons for these changes are not self-evident, and where there was no probing by the solicitor of the rationale behind the final disposition settled upon, the Court cannot be satisfied that the deceased had the executive function necessary for the third limb of testamentary capacity. 26 In view of this framing of the ultimate issue, the applicants ultimately submitted that there were only a handful of disputed factual questions the resolution of which would materially bear on the Court’s decision. They included: • whether, as Cate said in her evidence, the deceased had given her various instructions about the payment of bills and accounts on his behalf; and • whether, as Cate said in her evidence, the deceased had expressed a concern about directly providing in his will for Lynn’s children on the basis that one of them may be experiencing a relationship issue. 27 The applicants submit that Cate’s credibility and reliability as a witness is important because it bears on those issues. Whilst a consideration of the credit of Lynn and Maurice may be part of an overall assessment of Cate’s credibility, the applicants’ case (to the effect that the respondent has not established testamentary capacity) is not founded upon the Court’s acceptance of any particular observations made by either of them about the deceased’s capacity.8 8 Tr 1000.19-31. -- 7 of 192 -- [2026] SASC 115 B Doyle J 6 28 The applicants contend that if the underlying pathology did not disclose a risk of impairment of the deceased’s executive domain, the process by which the deceased gave instructions to Ms Cortazzo might have been sufficient for the respondent to discharge her burden as to capacity. They contend, however, that the Court can find that there was an underlying risk of impairment, and that because the questioning by Ms Cortazzo did not probe the rationale for the deceased’s instructions, it provides an insufficient evidentiary foundation for a conclusion that the deceased was capable of weighing the demands on his estate.9 29 The applicants acknowledged a difference in the evidence of Dr Hecker and Dr Innis. Dr Hecker’s evidence was to the effect that the CT scan coupled with some other matters of history and nursing observations supported a potential diagnosis of small vessel ischaemia; whereas Dr Innis was more inclined to identify a number of alternative pathologies that might produce cognitive impairment. The applicants submitted in closing that they preferred the approach of Dr Innis, acknowledging that the Court was probably not in a position to make a categorical finding about an underlying pathology.10 30 The applicants’ essential submission is that once it is accepted there was a risk of impairment of the executive domain, none of the observational evidence of the lay witnesses or the treating professionals was sufficient to negate it. They contended that, at its highest, the observational evidence amounted to an absence of evidence of compromised cognition, as distinct from positive evidence of executive function. The respondent’s main contentions 31 The respondent, by contrast, submits that no bright line between the cognitive function relevant to particular limbs of Banks v Goodfellow, or between executive and other aspects of cognitive function can usefully be drawn, at least in this case. 32 The respondent submits that until the applicants’ position was refined in closing submissions, the applicants had relied upon opinions of Dr Hecker and Dr Innis that threw doubt more generally upon the deceased’s cognitive state. The respondent submitted that the foundation for those opinions had been so damaged by other evidence in the case, and concessions made in cross-examination, that their opinions and evidence should be generally rejected, and could not reliably be deployed in favour of the more nuanced position finally advanced by the applicants. 33 The respondent emphasised the contemporaneous observations made by treating doctors and by the deceased’s neighbour, Ms Ikon, to the effect that the deceased was rational, responsive and of sound mind. The respondent submits there is nothing surprising about the testamentary instructions given. That they may have been refined between 6 and 10 February 2021 was neither surprising, 9 Tr 1004. 10 Tr 1005. -- 8 of 192 -- [2026] SASC 115 B Doyle J 7 nor irrational. In view of the fact that Maurice was not as close to the deceased as was Lynn, the fact that he was not referred to by the deceased on the morning of 10 February was not a ‘red flag’. The non-inclusion of Lynn’s daughters was not inherently surprising, and the evidence disclosed that the deceased may have had a specific reason for it. 34 The respondent also emphasised, as illustrative of executive function: • the assistance the deceased provided to Cate in editing documents in late 2020; • the deceased’s request that Cate attend to various bills that were shortly to fall due for payment; and • the process by which the deceased decided that he would like to be transferred to the QEH for his end of life care, as distinct from hospice care at Modbury or Flinders. 35 In the respondent’s submission, whilst the deceased suffered hallucinations and periods of confusion during his admission at the RAH, these were episodic and likely related to his underlying metastatic condition and pain. Importantly, he had insight into the hallucinations he experienced. Whilst at times he may have been drowsy, particularly after receiving medication, he was often observed to be alert, responsive and oriented as to time and place. 36 The respondent submits that the CT scan about which Dr Hecker and Dr Innis expressed opinions was inconclusive. First, the radiologists who had assessed the scan had not identified all of the matters commented on at trial by the geriatricians. Secondly, Dr Takhar and Dr Cursaro, both of whom had treated the deceased, did not see signs in the CT scan that were unexpected having regard to the deceased’s age. Thirdly, and most importantly, the geriatricians accepted that a diagnosis of cognitive impairment could not be based on scans alone. 37 The respondent contended that the Court could comfortably conclude that the deceased’s cognitive and executive function was intact prior to his admission, and that, whilst each witness’ observations might only take the matter so far, there was, in aggregate, a compelling body of observational evidence which supported the proposition that, save for periods in which he was obviously drowsy, disoriented or affected by hallucinations (which he recognised as such), the deceased was capable of coherent, rational and analytical thought and communication up to and including the day on which he executed the will. Overview of conclusions 38 The evidence about the deceased and the content of the will are not to be considered in the abstract, or by reference to the circumstances of a hypothetical testator. The lay and expert observations about or concerning his behaviour, -- 9 of 192 -- [2026] SASC 115 B Doyle J 8 including his approach to his personal affairs, need to be considered in the context of his personality, medical history and interpersonal relationships. 39 The deceased lived alone. He had no siblings or children and his parents pre- deceased him. Meaning him no disrespect, the deceased could be described as eccentric, and certainly idiosyncratic. He was obviously an intelligent man, and was versed in Latin, Ancient Greek and history. He had a quirky sense of humour. He described himself as ‘shy’ and as having ‘Aspergers’, making it hard for him to make friends. His cousin Lynn considered him to be autistic. She recounted that he had a habit of opening cupboards and drawers when visiting friends and asking embarrassing questions. 40 His estate was not vast and it was not at all complicated. It mainly comprised the residential property at Firle, which he had inherited from his parents, and where he had lived for many years. He was not much interested in assets or investments, though he cherished his collection of books. The house was in a squalid state by the time he died, and probably for some time before that. He had for some time been a hoarder. He rebuffed offers of assistance in the cleaning or de-cluttering of his home. He said he did not like strangers ‘messing about’ with his private life. 41 He had meaningful personal relationships with people, but for some years he had been reluctant to allow anyone to enter his Firle home. The deceased’s closest living relatives were his two cousins, the applicants. Lynn was in reasonably regular contact with him; Maurice less so. Maurice lived away from Adelaide until 2010, and, after 2017, saw Paul infrequently. The respondent, Cate, was a long- term friend of the deceased, and she and her son Raj had a close relationship with the deceased. Yet the applicants had not met or heard of her before they first met at hospital on 6 February 2021. The deceased had a group of male friends he called ‘the lads’, but Cate had not met them. Lynn had met Mike Brennan, Mike’s brother and Stephen Cramond when Paul was sick in 2016. 42 These unconventional features need to be borne in mind when deciding whether the deceased’s conduct was consistent with that of a person with the requisite capacity. They are also relevant to an assessment of the evidence of the party witnesses. Because of the deceased’s compartmentalisation of his family and his friends, it is perhaps not surprising that a sense of distrust developed between the applicants and the respondent in the final days of the deceased’s life, and which pervaded the litigation. They did not have a shared experience of the deceased. The applicants became suspicious of the respondent. Perhaps sensing this, the respondent became resentful and critical of the applicants. 43 My perception is that this distrust coloured the evidence the protagonists gave about events involving each other, and some of their conduct towards or in respect of one another after Paul’s death. -- 10 of 192 -- [2026] SASC 115 B Doyle J 9 44 For instance: • in text messages between Lynn and Maurice in the days following the making of the will, they discussed and coordinated what they would say to Cate, who, by 14 February 2021, Lynn had come to describe as a ‘gold digger’;11 and • in correspondence provided to a Coroner in late February 2021, Cate made criticisms of Lynn’s conduct particularly towards the end of Paul’s life whilst he was at the QEH. The criticisms, which lack a basis in the evidence before me, are consistent with the relationship having become hostile by this time.12 45 Whilst the distrust that quickly developed between the applicants and the respondent causes me to place little weight on their evidence where it relates to the conduct of each other, the parties’ evidence about each other is somewhat peripheral to the important issues and, as will be seen, I have accepted that, in other respects, each of the parties was generally endeavouring to give accurate and honest evidence. 46 As I will explain in more detail, I have generally found that Cate had and has retained a more accurate and reliable memory of events than has Lynn or Maurice. Save for some identified aspects of Cate’s evidence which I have found to be unreliable, I have generally found her to be a witness of truth, and to have been a reliable witness. 47 In particular, I have accepted her evidence regarding Paul’s instructions to her to pay various outstanding accounts, and I have accepted that she had a discussion with Paul in which he expressed a reservation about including Lynn’s daughters in his will. 48 Whilst I accept there is a distinction between basic cognitive function and the executive functioning required in order to prepare a will, I consider that in assessing the third limb of testamentary capacity in the circumstances of this case, I should have regard to all the evidence about the deceased’s cognition and behaviour, even where it may relate to what might be described as lesser-order interactions. That is because: • Paul’s estate and the limited potential claims on it were, in the scheme of things, relatively straightforward, so that the sharpness of any distinction between executive function and other cognitive functions is less pronounced or significant than might be the case; • if (as I find to be the case) the deceased had a reasonably intact executive function in the months or at least years preceding his admission to hospital, evidence from those familiar with the deceased to the effect that whilst in hospital he was able to interact in a similar way to the way he had interacted 11 Exhibit R37. 12 Exhibit A4, Exhibit A5. -- 11 of 192 -- [2026] SASC 115 B Doyle J 10 previously tends to contraindicate any major change in his executive function; and • professionals such as treating oncologists and palliative care specialists, and estate practitioners, may be expected to bring a level of objectivity and experience to an assessment of a person who is approaching the end of their life such that, even if they do not engage in questioning specifically directed to the issue of testamentary capacity, the absence of any circumstances sufficient to cause them to undertake more specific inquiries about capacity is entitled to some weight. These professionals are unlikely to have been oblivious to positive indications of a material deficit in executive function if such indications were to manifest. My survey of the evidence suggests that there was more than a fleeting opportunity for such indications to manifest; there was a reasonably ample opportunity for such signs to manifest if there were a serious underlying deficit. 49 I accept that a brief interaction which requires of a person little more than answers to questions about their immediate feelings and needs would shed little light on their executive function, particularly if the person making the observations is neither trained to be alert for cognitive impairment, nor able to draw on a history of interactions with the testator against which to calibrate the relative lucidity, sophistication or insight of the responses. 50 In the case of the lay witnesses, I consider that their evidence is broadly supportive of the deceased having retained testamentary capacity. In particular, Ms Ikon, who had no interest in the matter that could subconsciously affect her assessment of the issue, had more than brief interactions with the deceased and was able to compare those interactions with interactions she had with him over several years, including in the context of testamentary wishes. I place considerably less weight on the observational evidence of the party witnesses, but as I will explain, it is not without significance that the applicants did not express a contemporaneous concern about the deceased’s capacity in the period up to and including 10 February 2021. 51 In the case of the treating doctors, whilst they did not undertake a specific assessment of Paul’s capacity to execute a will, they formed contemporaneous views as to his capacity in a more general sense with the benefit of experience and medical training. Their evidence, to the effect that they did not experience concerns about the deceased’s capacity, carries more weight than would such evidence if given by a medical practitioner who has seen a testator for a simple check up or to deal with a discrete medical issue, and with no knowledge that the preparation of a will was in contemplation.13 13 cf. McInerney v D’Ortenzio (formerly O’Dea) [2026] SASCA 7 at [215], [224] (Livesey P and David JA). -- 12 of 192 -- [2026] SASC 115 B Doyle J 11 52 In the case of Ms Cortazzo, whilst I accept that she did not ask questions designed to probe the deceased’s rationale for his testamentary decisions, the fact that he engaged appropriately in the process and, between the two appointments over the course of 10 February 2021, retained a recall of his intentions, is consistent with the existence of a rationale, and thus with the capacity to assess the claims on his estate. 53 I consider that in the context of discussions about his hospice care, the deceased exhibited the capacity to weigh conflicting considerations in a manner that, whilst by no means conclusive, is consistent with having retained executive function. He was undoubtedly aware that the decision where to go was one primarily about what he wanted, but in relation to which it was desirable, if he could, to accommodate the convenience of others who might want to visit him (and to avoid being seen to meet the request or preference of one person to the exclusion of another). In that way, it was not entirely dissimilar to the decision to be made about who should receive his estate. 54 Having considered the entirety of the evidence, the testamentary dispositions upon which he settled are not at all surprising. Paul and Cate shared a long and close relationship and Paul’s inclusion of Cate in his will was consistent with his previous preparedness to assist her both financially and otherwise. Lynn and Maurice were Paul’s closest living relatives. In recent times he had spent more time with Lynn and, as well, she had children who were his godchildren. That Paul entertained omitting Maurice, before deciding it would be better that he be included, does not, in the final analysis, trouble me. There is no reason to think that either Lynn or Maurice would be financially dependent on a distribution from Paul’s estate and Paul was not a particularly materialistic person. A preparedness to waver about Maurice’s inclusion or exclusion does not, in all the circumstances, stand in the way of my being comfortably satisfied that Paul had the capacity to make a deliberative choice about the distribution of his estate. 55 I have borne in mind the fact that Lynn’s children were included as part of a five-way provision in the note, but were not provided for in the same way in the will. As has been noted, Cate gave evidence, which I have accepted, as to a reason that Paul may have entertained for that decision. Even putting that to one side, the note was prepared at a time when Paul had had a relatively short time to consider his intentions. It is clear that Paul subsequently had the opportunity to reflect on whether a five-way division (with Lynn’s family effectively receiving three-fifths of his estate) was really what he wanted. Indeed, as will be explained, in one of the recordings tendered in evidence, Cate is heard encouraging Paul to consider whether he wished to divide his estate between five or three. That was following an exchange in which he was inclined against separately providing for Cate’s son Raj.14 The possibility that an element of self-interest may, consciously or subconsciously, have infused Cate’s encouragement to reflect on that question 14 Exhibit A19, ‘02. Will’ and ‘08. Jewellery & divide bt 3 or 5’. -- 13 of 192 -- [2026] SASC 115 B Doyle J 12 does not detract from the significance of the opportunity for reflection that the deceased had, nor cause me to generally reject the honesty of Cate’s evidence. 56 It is not inherently surprising, given the closeness of his relationship with Cate, and his historical preparedness to assist her, that he ultimately decided against a five-way distribution. 57 Weighing all the evidence I am satisfied that the deceased had testamentary capacity. My more detailed reasons follow. The structure of the balance of these reasons is as follows. B TESTAMENTARY CAPACITY 15 C THE NOTE, THE PRO FORMA WILL AND THE WILL 20 The note 20 The pro forma will 21 The will 23 D THE EVIDENCE 24 The course of evidence 24 The witnesses 25 The respondent’s witnesses 26 Ms Catherine Rogers ............................................................................................................... 26 Ms Jennifer Rogers .................................................................................................................. 27 Ms Chantel Cortazzo ................................................................................................................ 27 Ms Jacqueline Johns ................................................................................................................ 28 Dr Daniel Sansome .................................................................................................................. 29 Dr Miriam Cursaro .................................................................................................................. 30 Dr Harminder Takhar .............................................................................................................. 31 Mr Richard Solomon ................................................................................................................ 33 Dr Michelle Short..................................................................................................................... 36 Mr Jean-Pierre du Plessis........................................................................................................ 36 The applicants’ witnesses 37 Ms Sofie Ikon ............................................................................................................................ 37 Ms Racheline (Lynn) Rogers .................................................................................................... 39 Mr Maurice Aladjem ................................................................................................................ 42 Mr Stephen Cramond ............................................................................................................... 46 Dr Jane Hecker ........................................................................................................................ 46 Dr Alicia Innis .......................................................................................................................... 48 Witnesses not called 49 Documentary and other evidence 50 Solicitors’ files and records ..................................................................................................... 50 Medical records ....................................................................................................................... 51 Bank statements and bills ......................................................................................................... 53 Text message and email exchanges between Paul and Cate ................................................... 53 Text message exchanges shortly prior to Paul’s admission to the RAH .................................. 54 Text message and email exchanges involving between Cate and the applicants..................... 57 Text messages and email correspondence sent by Ms Ikon ..................................................... 58 Photographs and videos ........................................................................................................... 59 -- 14 of 192 -- [2026] SASC 115 B Doyle J 13 Recorded conversations ........................................................................................................... 60 Basis for receipt of recordings 60 Significance of recordings 63 E PRIMARY FINDINGS 64 The deceased’s background 64 The deceased’s physical health 64 The deceased’s relationships 65 Relationship with Cate ............................................................................................................. 65 Relationship with Lynn............................................................................................................. 68 Relationship with Maurice ....................................................................................................... 69 Summary................................................................................................................................... 70 The deceased’s interactions with friends and family around Christmas 2020 71 The deceased’s admission to the RAH on 3 February 2021 72 Events of 4 February 2021 73 Events of 5 February 2021 75 Events of 6 February 2021 77 Initial interactions .................................................................................................................... 78 Cate’s evidence 78 Jenny’s evidence 78 Lynn’s evidence 78 Findings 80 Preparation of the note ............................................................................................................ 81 Cate’s evidence 81 Jenny’s evidence 83 Lynn’s evidence 83 Ms Ikon’s interactions on 6 February 2021 86 Findings 87 Cate’s attendance at the Firle property ................................................................................... 89 Events of 7 February 2021 89 Hospital observations .............................................................................................................. 91 Instructions to pay bills ............................................................................................................ 92 Events of 8 February 2021 99 Hospital observations ............................................................................................................ 100 Oncology observations 100 Palliative care observations 100 Paul’s interactions with Cate and her subsequent communications ..................................... 102 Events of 9 February 2021 106 Hospital observations ............................................................................................................ 107 Oncology observations 107 Social worker’s observations 108 Palliative care observations 108 Interactions involving social worker and Cate, Maurice, Lynn and Ms Ikon ....................... 110 Cate’s evidence 110 Ms Ikon’s evidence 113 Lynn’s evidence 115 Maurice’s evidence 115 Ms Khambatta makes contact with Ms Cortazzo ................................................................... 116 -- 15 of 192 -- [2026] SASC 115 B Doyle J 14 Findings ................................................................................................................................. 116 Events of 10 February 2021 117 Hospital observations ............................................................................................................ 118 Medications 118 Nursing observations 118 Oncology observations 119 Social worker observations 120 Palliative care observations 121 Interactions with Cate and Ms Ikon ....................................................................................... 124 Cate’s evidence 124 Ms Ikon’s evidence 127 Ms Cortazzo takes instructions and Paul executes pro forma will ........................................ 128 Ms Cortazzo returns with Ms Johns and the will is executed ................................................ 136 Ms Cortazzo’s evidence 136 Ms Johns’ evidence 137 Findings ................................................................................................................................. 138 Events of 11 February 2021 139 Hospital observations ............................................................................................................ 139 Interactions with Maurice and Cate ...................................................................................... 139 Findings ................................................................................................................................. 140 Events of 12 February 2021 141 Subsequent events and Paul’s death 142 Events following Paul’s death 145 F ANALYSIS AND ULTIMATE FINDINGS 146 Dr Hecker’s evidence 146 Initial instructions and preliminary views ............................................................................. 146 Request for written opinion .................................................................................................... 146 Dr Hecker’s first report ......................................................................................................... 149 Dr Hecker’s second report ..................................................................................................... 158 Dr Hecker’s oral evidence in chief ........................................................................................ 160 Cross-examination and criticisms of evidence....................................................................... 161 Observations .......................................................................................................................... 170 Dr Innis’ evidence 172 Dr Innis’ first report .............................................................................................................. 172 Dr Innis’ second report .......................................................................................................... 173 Dr Innis’ oral evidence .......................................................................................................... 174 Observations .......................................................................................................................... 180 Criticisms of Ms Cortazzo’s approach 181 Conclusions 185 G DISPOSITION 190 -- 16 of 192 -- [2026] SASC 115 B Doyle J 15 B TESTAMENTARY CAPACITY 58 The applicable principles are as summarised by Livesey P and David JA in McInerney v D’Ortenzio (formerly O’Dea):15 [17] As to testamentary capacity, the traditionally accepted formula is that stated by Cockburn CJ in Banks v Goodfellow (‘Banks’):16 It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. [18] This formulation of the test for mental capacity has routinely been applied in Australia.17 [19] It is important to emphasise that the test is one of capacity.18 It need not be established that a testator or testatrix in fact turned his or her mind to, for example, the extent of their property, or the moral claims of potential beneficiaries. [20] It is also well established that for a will to be valid, a testator or testatrix must also have known and approved of the contents of the will. [21] The burden of proving the formal and substantive validity of the will lies with the party propounding it. That is, the party propounding the will bears the legal onus with respect to proof of the formal legal requirements, testamentary capacity and knowledge and approval of the contents of the will. [22] As to testamentary capacity, a rebuttable presumption exists in circumstances where a will is rational on its face and duly executed. If there is evidence to the contrary adduced by the party challenging the will, this may reduce the force of the presumption and shift the evidentiary burden to the party propounding the will. In such a case, the issue will ultimately be determined by reference to the entirety of the evidence on the balance of probabilities. As the majority judgment of the High Court stated in Worth v Clasohm:19 A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent…. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document 15 [2026] SASCA 7 at [12]-[22]. 16 (1870) LR 5 QB 549 at 565. 17 See, for e.g. Bailey v Bailey (1924) 34 CLR 558 at 566–7 (Knox CJ and Starke J); Worth v Clasohm (1952) 86 CLR 439 at 453 (Dixon CJ, Webb and Kitto JJ). 18 Thomas v Nash (2010) 107 SASR 309 at [71]. 19 (1952) 86 CLR 439 at 453 (Dixon CJ, Webb and Kitto JJ). -- 17 of 192 -- [2026] SASC 115 B Doyle J 16 propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of execution… [23] Once a doubt is raised by the party challenging the will, the evidentiary burden shifts to the party propounding the will to lead evidence that either directly proves, or gives rise to an inference, of testamentary capacity. [24] More recently in Tobin v Ezekiel,20 Meagher JA explained: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of ‘sound disposing mind’. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity. (citations omitted) [25] However, as Basten JA said in Carr v Homersham,21 ‘a doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity’. [26] In relation to knowledge and approval, in circumstances where there are no ‘suspicious circumstances’ that the testator or testatrix may not have fully known and approved the document, proof of testamentary capacity and due execution of the will gives rise to a presumption that he or she knew of and approved of the contents of the will. However, where ‘suspicious circumstances’ do exist, the presumption does not arise and again, the proponents of the will bear the burden of establishing that the testator or testatrix knew of and approved its contents. [27] The issues of testamentary capacity, and knowledge and approval of the contents of the will, fall to be determined on the civil standard, on the balance of probabilities.22 59 In Roche v Roche,23 Kourakis CJ observed that rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.24 He referred with approval to Kirby P’s statement that in people of advanced years:25 slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: see Banks, above, at 560. 20 (2012) 83 NSWLR 757 at [45] (Meagher JA). 21 [2018] NSWCA 65 at [47] (Basten JA). 22 Briginshaw v Briginshaw (1938) 60 CLR 336. 23 [2017] SASC 8. 24 [2017] SASC 8 at [17]. Indeed, despite finding that the testator suffered a behavioural variant frontotemporal dementia and that the executive functioning capacity of his mind was diminished to some extent (at [531]), his Honour found the testator had the capacity to appreciate the relative weight of the competing claims on his estate and make a deliberative choice between them (at [535]). See also Chronis v Karan [2021] SASC 87 at [232], where Parker J found the testator suffered from cerebrovascular impairment but nevertheless made a finding of capacity. 25 Re Estate of Griffith (1995) 217 ALR 284 at 295, referred to at [2017] SASC 8 at [18]. -- 18 of 192 -- [2026] SASC 115 B Doyle J 17 Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed. 60 The Chief Justice went on to refer to authorities that acknowledge that the nature of the disposition, in fact made, and its underlying reasonableness may have some evidentiary effect, and that the mental capacity required by the law in respect of an instrument is relative to the particular transaction which is being effected by means of the instrument.26 61 Of course, some care must be taken in this; a very simple will might, in the case of a testator upon whose estate there are wide and varied claims, contraindicate capacity. A simple will replacing a much more complex or nuanced earlier will might give particular cause for vigilance, as might a simple will containing a radically different testamentary disposition to a previous will.27 However, a simple will that deals, apparently fairly, with a small number of relatively simple claims (or ‘social expectations’28), may be such as to invite or require less vigilance than would otherwise be the case. 62 As Parker J said in Chronis v Karan:29 A determination that a person lacked, or has not been proven to have possessed a sound disposing mind, memory and understanding is a grave matter. The degree of vigilance to be exercised by the Court in assessing testamentary capacity must vary with the circumstances. The circumstances of relevance will include the simplicity or complexity of the will, the rationality or irrationality of its provisions, the exclusion or non-exclusion of beneficiaries, the exclusion of persons naturally having a claim upon the testator and extreme age or sickness. To displace a prima facie case of capacity by due execution, mere proof of serious illness will not suffice. There must be clear evidence that the illness of the testator so affected their mental faculties as to make them unequal to the task of disposing of their property. Kirby P made clear in Griffith that slowness, illness, feebleness and eccentricity will not ordinarily be sufficient to establish testamentary incapacity. 63 The variable and circumstantial nature of the exercise was also emphasised by McMillan AJ in Moloney v Hayward:30 [w]hile medical evidence can be of assistance in certain circumstances, ultimately it is not necessarily essential or determinative as the test for testamentary capacity is a legal test. Determining testamentary capacity is a practical question that does not depend solely on medical or legal definition. It is a question of degree to be solved as a whole on the facts 26 [2017] SASC 8 at [30], referring, inter alia, to Estate of Stanley William Church [2012] NSWSC 1489 at [53] (White J), Bailey v Bailey (1924) 34 CLR 558 at 570-571 (Isaacs J) and Gibbons v Wright (1954) 91 CLR 423 at 438 (Dixon CJ, Kitto and Taylor JJ). 27 cf. McInerney v D’Ortenzio (formerly O’Dea) [2026] SASCA 7 at [202] (Livesey P and David JA), referring, inter alia, to Re Estate of Budniak [2015] NSWSC 934 at [372]-[377] (Hallen J). See also at [314] (S Doyle JA). 28 Roche v Roche [2017] SASC 8 at [10] (Kourakis CJ). 29 [2021] SASC 87 at [231] (citations omitted). 30 [2022] SASC 79 at [270]. -- 19 of 192 -- [2026] SASC 115 B Doyle J 18 disclosed by the entire body of evidence, which may include medical evidence, as well as lay witnesses, and depends on the circumstances of each case. 64 When resolving evaluative questions of fact, generalisations are of limited value. So it is that there is ‘no hierarchy in the sources of evidence in Probate suits’.31 That said, there have been many capacity cases in which the court has found contemporaneous observations to be of greater assistance than retrospective expert opinion. 65 In a passage that has frequently been referred to with approval,32 in Revie v Druitt,33 Windeyer J said:34 As I have pointed out quite recently in Kerr v Badran, lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased. 66 In a similar vein, Mummery LJ (with whom Patten LJ and Sir Scott Barker agreed) said:35 My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property. 67 In considering expert evidence relating to capacity, as with any evidence of opinion, the assumptions upon which the opinion is based need to be made good before the opinion may be acted upon. In cases where an expert opines as to the ultimate issue, the court is obviously not bound to accept that opinion, and it may even be that the opinion ought not be received. 68 Rather than engage in prolonged debate about the ultimate issue rule or engage in an exercise of dissecting the opinions expressed, the parties were content for me to receive the expert reports de bene esse with a view to resolving, in the 31 Robertson v Barker [2021] NSWSC 1682 at [77] (Hallen J). 32 See, eg, Chalik v Chalik [2025] NSWCA 136 at [88] (Bell CJ, Payne and Free JJA), Wild v Meduri [2024] NSWCA 230 at [213] (Bell CJ, White and Kirk JJA agreeing), Robertson v Barker [2021] NSWSC 1682 at [155]-[158] (Hallen J), Chronis v Karan [2021] SASC 87 at [250] (Parker J), Attwell v Morgan [2019] WASC 182 at [75]-[76] (Curthoys J), Guthrie v Spence (2009) 78 NSWLR 225 at [196] (Campbell JA, Basten JA and Handley AJA agreeing), Nicholson v Knaggs [2009] VSC 64 at [40] (Vickery J), Foster v Meller [2008] VSC 350 at [145] (Judd J). 33 [2005] NSWSC 902. 34 [2005] NSWSC 902 at [34]. 35 Hawes v Burgess [2013] EWCA Civ 74 at [60], referred to with approval in Chronis v Karan [2021] SASC 87 at [249] (Parker J). -- 20 of 192 -- [2026] SASC 115 B Doyle J 19 course of my reasons, whether I would admit (or give any weight to) any opinions that could be described as addressing the ultimate issue. 69 Insofar as the experts have addressed the ultimate issue, I will not have regard to the ultimate expression of the opinion separately from, or as having any significance that adds to, the reasoning leading to such an opinion.36 It is the cogency or otherwise of the reasoning implicit in their opinions, rather than the outcome suggested by or dictated by that reasoning, which must be the focus of my consideration. 70 Further, and in any event, those experts did not enjoy the advantage that the Court has had of surveying all the available evidence relevant to an assessment of capacity.37 In particular, they did not have available to them a knowledge of the deceased’s circumstances and personality or the interactions described by the lay witnesses in the days and months preceding the execution of the will. 71 In considering whether to accept, and if so, the weight to be given to observations of lay witnesses about things said and done by the deceased, I have borne in mind the caution called for by the fact that the deceased is unavailable to confirm or contradict such interactions,38 and by the fact that party witnesses have an interest in the outcome of the proceedings. 72 Whilst my findings about the credibility and reliability of lay witnesses are informed by the impressions I formed of them whilst giving evidence, they have been reviewed in the light of a more detailed analysis of the evidence including its consistency with objective contemporaneous communications and records. 36 cf. McInerney v O’Dea [2024] SASC 110 at [190] (McIntyre J). 37 See, eg, Roche v Roche [2017] SASC 8 at [9] (Kourakis CJ), Chronis v Karan [2021] SASC 87 at [103] (Parker J). 38 See, eg, the decisions summarised by Hallen J in Chant v Curcuruto [2021] NSWSC 751 at [262]-[270]. I also bear in mind the observations in Plunkett v Bull (1915) 19 CLR 544. -- 21 of 192 -- [2026] SASC 115 B Doyle J 20 C THE NOTE, THE PRO FORMA WILL AND THE WILL 73 Before canvassing the evidence critical to an understanding of the relevant context, I set out the essential terms of the note, the pro forma will and the will. The note 74 As has been noted, the note was prepared in Paul’s presence on Saturday 6 February 2021 at the RAH.39 It is reproduced below. 39 Exhibit R27. -- 22 of 192 -- [2026] SASC 115 B Doyle J 21 75 It is common ground that only Paul, Lynn and Cate were present whilst the document was prepared. It is common ground that Lynn had a pen in her bag and got some paper. The words from ‘Last will’ through to ‘Catherine Rogers of’ were written by Lynn. The words ‘& Testament’, the address ‘13 Forsyth Street’ and the remaining words down to but not including Paul’s signature were written by Cate. After the document was complete a nurse passed by and was asked to witness the document. She said she could not. Apart from these details, Cate and Lynn differ as to their evidence about precisely how the note came to be prepared. 76 Broadly, Cate’s evidence was that Paul was coherent throughout, and that Lynn was anxious to have a record of Paul’s testamentary intentions made. Lynn’s evidence is that Cate suggested the preparation of the document, and that Paul dozed off during the preparation of the note and was ‘not coherent’. 77 Cate’s evidence was that Paul referred to Lynn’s sick husband George but that Lynn said there was no need to worry about him because Lynn would look after him. Lynn also said there was no need to include Maurice’s wife Louise. Lynn suggested including Lynn’s two daughters Natasha and Nicole. Raj had been mentioned at the start but Paul said he would fall under Cate, just like George and Louise. 78 Lynn’s evidence was that whilst Raj’s name was mentioned during the discussion, the people that Paul wanted included were those listed in the note. The pro forma will 79 At the request of a social worker, Ms Pramila Khambatta, Ms Cortazzo attended the RAH on the morning of 10 February 2021. She took handwritten instructions from Paul whilst meeting with him alone. The notes are reproduced later in these reasons. 80 The instructions and notes were taken in phases. When Ms Cortazzo first took instructions as to who should be included in the will, Paul did not mention Maurice. Having taken the instructions, Ms Cortazzo left Paul’s room and spoke with Cate outside the room. Cate informed Ms Cortazzo that Paul had two cousins, Lynn and Maurice. When Ms Cortazzo re-entered the room, she asked Paul if Lynn was his only family. He said ‘no’ and told her that he had another cousin named Maurice. She asked him if he wanted to include Maurice in his will. He thought about this for a few seconds and said words to the effect that it would be best to include him in the division with Cate and Lynn. Ms Cortazzo said he did not need to include Maurice if he did not want to. Paul said ‘no’, he was happy to include him. Ms Cortazzo asked Paul for Maurice’s full name, which he was able to provide without prompting. It follows that the three references to Maurice in the instructions were written during the second phase of the discussion. -- 23 of 192 -- [2026] SASC 115 B Doyle J 22 81 Ms Cortazzo then prepared the pro forma will based on these instructions. Its terms were as follows (with the italics denoting the parts that were handwritten):40 WILL I ………………………….PAUL GERARD MACDONALD ……………….. of …………..…………… 86 Luhrs Road, Firle in the State of South Australia 1. Revoke all my existing Wills (if any). 2. Appoint as my executor/s and trustee/s:- My friend Catherine Jane Rogers and my cousin Racheline Rogers 3. Direct that all my debts and funeral and testamentary expenses be paid. 4. Direct my estate be administered as follows:- 4.1 My trustee is to hold the residue of my estate upon trust to be divided equally between such of them my friend Catherine Jane Rogers and my cousins Racheline Rogers and Maurice Aladjem. 4.2 … 4.3 … 4.4 … 5. Grant my trustee/s all powers under rules of equity or legislation to the extent not necessarily inconsistent with any of the above terms. 6. Grant my trustee/s power to sell assets and have unrestricted maintenance for any infant beneficiaries. Dated this 10th day of February 2021 82 The document was executed by Paul in the presence of Ms Cortazzo and an independent witness. As will be explained further, Ms Cortazzo did not hold a doubt about Paul’s capacity but considered it was prudent to request a letter from one of his treating doctors certifying that he had capacity given his medical condition and that he was approaching the end of his life. That was the origin of a letter in these terms:41 10/02/21 To whom it may concern, Re Paul Macdonald (DOB 3/2/1951) 40 Exhibit R28. 41 The letter was tendered as an exhibit to the affidavits of Ms Cortazzo (Exhibit R8, CAC-3). -- 24 of 192 -- [2026] SASC 115 B Doyle J 23 On the 10/02/21 we believe that Mr Macdonald is currently competent to give legal directions. He has insight as to why he is [in] hospital and that he has terminal cancer with limited prognosis and he understand future plans to transfer to hospice for EOLC. Sincerely Dr Daniel Sansome Medical Oncology Intern On behalf of Dr Harminder Takhar Medical Oncologist The will 83 Ms Cortazzo returned to her office and made arrangements to return to the RAH at 5.30 pm for a formal will to be executed. She attended with Ms Johns. Neither the social worker nor Cate was present. I return to their evidence in more detail later. The will provided:42 THIS IS THE LAST WILL of me PAUL MACDONALD of 86 Luhrs Road, Firle in the State of South Australia. 1. I REVOKE all of my previous Wills and testamentary dispositions. 2. I APPOINT my friend CATHERINE JANE ROGERS of 13 Forsyth Street, Gin Gin in the State of Queensland and my cousin RACHELINE ROGERS of 1 Gandys Gully Road, Stoneyfell in the State of South Australia to be my executors and trustees (‘my trustee’). 3. I GIVE the whole of my estate to my trustee to:- 3.1 sell and call in the same subject to clause 6; 3.2 pay my debts, funeral, memorial and testamentary expenses and all duties and taxes payable (if any) in consequence of my death; and 3.3 distribute the residue of my estate in accordance with the subsequent clauses of this will. 4. I DIRECT my trustee to hold the residue of my estate UPON TRUST to be divided (subject to clause 5) equally between such of them my said friend CATHERINE JANE ROGERS, my said cousin RACHELINE ROGERS and my cousin MAURICE ALADJEM as survive me for their own use and benefit absolutely. 5. IF ANY of the said beneficiaries named in clause 4 do not live to attain a vested interest in my estate but leaves a child or children who survive me, then that child solely or those children equally between them, shall receive the share of my estate which their parent would otherwise have received. 6. MY TRUSTEE may in addition to any powers given by law, at my trustee’s absolute discretion:- 42 Exhibit R29. -- 25 of 192 -- [2026] SASC 115 B Doyle J 24 6.1 retain any part of my estate in its existing form at the date of my death and distribute it towards the satisfaction of any share in my estate; 6.2 determine the value of any part of my estate in any manner my trustee thinks fit; 6.3 postpone the sale and calling in of any part of my estate even if it is of a wasting or speculative nature for as long as my trustee considers appropriate; 6.4 have the power to buy any portion of my estate whether real or personal and either by private treaty or by public auction including the right to bid at any public auction notwithstanding that they are a trustee of this my will and in the event of sale by private treaty the price shall be determined by the valuation of an independent expert valuer (licensed where necessary) appointed by my trustee. 7. I WISH to be cremated and my ashes to be stored in an urn which is to be given to my said friend CATHERINE JANE ROGERS. DATED 10th February 2021 84 The will was witnessed by Ms Cortazzo and Mr Johns. It is more detailed, but it is to the same essential effect as the pro forma will, save that cl 5 preserved the entitlement of a beneficiary’s children in the unlikely event that one of the three named beneficiaries pre-deceased Paul. D THE EVIDENCE 85 The evidence in the trial comprised documentary evidence, including photographs and audio recordings, as well as lay and expert evidence. 86 The evidence of the witnesses was, to a large extent, contained in affidavits made before the trial which, subject to some exclusions and rulings as to limits upon the use of evidence, were received into evidence. The important witnesses supplemented their affidavits with brief evidence in chief. Most of the witnesses were cross-examined and, in the case of the party witnesses, extensively. In this part of my reasons I identify the witnesses and outline the nature of the documentary evidence, together with some high level observations about the evidence. The course of evidence 87 Although Cate was dux litis, in the end, some of the applicants’ witnesses gave evidence before Cate closed her case. I will briefly explain why. 88 Prior to trial, the applicants sought and obtained an expert report from Dr Jane Hecker. In her report of 22 November 2022,43 she said, amongst other things: 43 Exhibit A14 (Hecker-1). -- 26 of 192 -- [2026] SASC 115 B Doyle J 25 His confusion and impaired attention in hospital could be associated with several possible underlying brain pathologies. He could have had a simple delirium due to the significance of his other physical pathology. This could explain the fluctuation and the clinical picture. I think it is more likely, however, that there was an additional background chronic brain pathology. 89 As will be seen, Dr Hecker favoured the view that the brain pathology in question was chronic subcortical vascular disease. That opinion was given by Dr Hecker at a time when she had reviewed a radiologist’s report of CT brain scan. 90 Early in the trial, the respondent foreshadowed through her counsel that she would seek to supplement the affidavit evidence of two witnesses that she was proposing to call, Dr Cursaro and Dr Takhar, so that they could respond to the opinion in question, as well as address the reliance placed by Dr Hecker on the fact that despite being sick for many years the deceased had not, prior to his admission, set about planning his affairs. By this time, a subpoena had been issued for the actual CT scan images.44 91 Over objection, I ruled that the respondent would be permitted to adduce this additional evidence. However, I considered it appropriate to allow time for the applicants’ counsel to consider how this might impact on the cross-examination of the respondent, which had commenced. The consequence of giving the respondent the opportunity to adduce the further evidence was also that Dr Hecker and Dr Innis should have the opportunity to respond, and with the benefit of the CT scan images. 92 The upshot was that two of the applicants’ lay witnesses (namely, Ms Ikon and Maurice) gave evidence before Dr Cursaro and Dr Takhar. Dr Innis and Dr Hecker gave evidence following them. The witnesses 93 I provide an overview below of the witnesses called, together with some of my observations about them. The observations reflect impressions formed during the course of their evidence, reviewed in light of the balance of the evidence. 94 Ultimately, in relation to contentious factual questions, I have not relied solely on my assessment of the demeanour of conflicting witnesses, but have also brought to bear the consistency of their evidence with surrounding evidence that is objective or less contentious. I have borne in mind in the case of the party witnesses that their interest in the outcome of hard-fought litigation may have coloured their memory of events, even if only subconsciously. 95 Where witnesses have differed in relation to the chronology of events and their interactions with the deceased at the RAH, I have been particularly assisted 44 These were ultimately received into evidence as Exhibit A18. -- 27 of 192 -- [2026] SASC 115 B Doyle J 26 by references in contemporaneous text messages and hospital records about visits by the deceased’s family and friends. The respondent’s witnesses Ms Catherine Rogers 96 Cate was born in 1967 and at the time of trial was aged 57 years. Her evidence in chief substantially comprised an affidavit affirmed on 6 December 2024 which, subject to a number of rulings, was received into evidence.45 The affidavit exhibited a significant volume of documents including communications over time with and about the deceased and photographs. 97 She gave evidence about her relationship with Paul from the early 1990s to the date of his death. She explained the communications she had with the deceased on 3 February 2021 and how her concerns led her to dial 000. 98 Cate gave evidence that she flew to Adelaide, arriving on 6 February 2021, and travelled directly to the RAH. Her evidence traversed her interactions with the deceased, the applicants and others over the following week or so. 99 Cate was cross-examined extensively. She was unsettled and defensive in the early stages of her cross-examination, and in relation to conversations the subject of audio recordings, but she otherwise appeared to give evidence in a relatively calm and considered fashion. The line of questioning that she could not initially answer was one for which, it ultimately emerged, there was a benign explanation. The fact that she was unsettled by it therefore did not detract from her credibility.46 100 As to the important events, Cate seemed able to give evidence without significant resort to or reliance upon documents, but in a way that was consistent with what was revealed by the documents. Yet I did not consider that her evidence had been constructed around the documents. I felt that she was drawing on authentic recollections. She was not overly dogmatic or argumentative. Her demeanour did not cause me to doubt her veracity. 101 A number of aspects of her evidence were challenged. Specific aspects of her evidence are considered in the course of these reasons. However, I record here my conclusion that, with relatively limited exceptions identified in these reasons, I have found her to be a reliable witness. I also accept that she was a credible and honest witness. It may be accepted that her perspective on some events has been subconsciously coloured by her interest as a party and the antipathy that seemingly developed between her and the applicants, but I did not conclude that she was prepared to engage in conscious falsehoods in her recounting of the facts. That is 45 Exhibit R3 (Cate). 46 See [400]–[418] below. -- 28 of 192 -- [2026] SASC 115 B Doyle J 27 to say, where I have not accepted her evidence, I have not found it to involve conscious by dishonest evidence. 102 I am inclined to think that upon it becoming apparent, on 6 February 2021, that Paul had in mind benefiting her in his will, she was motivated to see a will formalised and that, even if subconsciously, her self-interest fortified her desire to assist Paul in organising his affairs. It is apparent that she encouraged Paul to consider the content of his will in advance of him meeting with a solicitor. However, that does not cause me to doubt the genuineness of her underlying relationship with Paul. I did not suspect that she flew to Adelaide with the idea of procuring a testamentary disposition (and no suggestion to that effect was made). That she may have been proactive in assisting Paul to arrange his affairs once the making of a will from which she might benefit was on the cards has not caused me to discount her evidence for that reason. Ms Jennifer Rogers 103 Ms Jennifer Rogers (‘Jenny’) is Cate’s older sister. Before her retirement she was a registered nurse. In her affidavit,47 she recounted her knowledge of Cate and Paul’s relationship over the years. She picked Cate and Raj up from the airport on 6 February 2021 and attended at the RAH with them. She met Lynn on that occasion but initially stayed outside Paul’s room. She came in later and interacted with the deceased. Her evidence was she found Paul lucid and engaging. He greeted her by name and they discussed funeral arrangements. She also gave evidence about her interactions with Paul at the QEH on 16 February 2021. 104 I found Jenny to be an articulate, measured and attentive witness. At one stage during her cross-examination when questioned about the conversations she had had with Cate about any discussion between Paul and her about marriage, she was momentarily unsure of her evidence, but I formed the impression that she was ultimately drawing upon genuine recollections, and was giving honest evidence. 105 The evidence she gave about discussing funeral and other arrangements seemed consistent with the impression I gained of her which was that she had a familiarity, by reason of her employment experience, with end of life arrangements and was confident to deal proactively but sensitively with them. Ms Chantel Cortazzo 106 Ms Cortazzo is a solicitor who was admitted to practice in 2016 and has since 2018 practised exclusively in wills and estates. She has been employed at Adelta Legal since 2019 and about half of her time is spent taking instructions in relation to, and drafting, wills and associated documents. She gave evidence in the form of an affidavit sworn on 6 November 2024,48 supplemented by oral evidence, including with reference to her file as to the process by which she took instructions 47 Exhibit R11 (Jenny). 48 Exhibit R8 (Cortazzo). -- 29 of 192 -- [2026] SASC 115 B Doyle J 28 from the deceased, prepared and ultimately witnessed the pro forma will and later the will. She expressed the view that the deceased had testamentary capacity. 107 Whilst there was no challenge to the honesty of her evidence, the applicants submitted that aspects of it involved reconstruction, and that, ultimately, she did not satisfy the duties of a solicitor in the circumstances because she: made no immediate inquiry of any medical practitioner as to the deceased’s conditions at the time she took instructions; failed to interview the deceased in private; did not maintain a consistent, recorded line of questioning; failed to re-confirm capacity prior to execution of the formal will and failed to record or document the deceased’s reasoning for his disposition. 108 It will be necessary to return to the criticisms of the process that she followed, but I deal here with my assessment of her as a witness. I found her to be a diligent and honest witness. Whilst there were some aspects of her evidence that undoubtedly involved an element of reconstruction based upon her notes, I accept that in many respects she was drawing upon a genuine specific recollection of impressions she formed during her interactions with the deceased.49 Whilst it was difficult to delineate and articulate – in every case – the extent to which she was drawing on original memories, the extent to which she was interpreting her notes, and the extent to which she was drawing upon her practice, she was patently making an honest effort to assist the Court. Further, I accept that to a significant extent, she retained an independent memory of interactions with the deceased upon which she drew when giving her evidence. As she said in cross-examination:50 … I do quite vividly [remember] a lot of that day. Like I said yesterday, those sorts of matters have a way of sticking with you in your head, I actually do remember quite vividly sitting there in the hospital room with Paul. 109 Although she briefly acted for Cate after the deceased’s death, and at a time when it was clear that a dispute was brewing with Lynn, I do not consider this coloured her evidence. And although she may be said to have had a professional or reputational interest in the Court’s finding about the deceased’s capacity, I did not consider her evidence to be influenced by that. 110 Whether the process she followed in relation to the will had material shortcomings and, if so, the consequences for the value of her evidence about testamentary capacity, is a separate question to which I will return. Ms Jacqueline Johns 111 Ms Johns was admitted to practice in early 2019 and commenced employment at Adelta Legal in September that year. She has been taking will 49 See, eg, Tr 275.23-38, 279.11-14, 295.9-10, 295.27-28, 297.34, 302.36, 323.1-20, 333.13, 343.11-12. I place less weight on the answers given in re-examination at Tr 361.16-362.15 and 365.16-368.18, but I generally accept that to a significant extent, Ms Cortazzo maintained an authentic memory of aspects of her interactions with Paul. 50 Tr 370.17-30. -- 30 of 192 -- [2026] SASC 115 B Doyle J 29 instructions and drafting wills since that time. Her evidence, which was largely contained in her affidavit affirmed on 8 November 2024,51 addressed her attendance with Ms Cortazzo at the RAH on the late afternoon of 10 February 2021. She recalled Paul greeting Ms Cortazzo by name.52 Although she observed the deceased to be very weak and tired, based primarily on Paul’s general demeanour during the course of the interaction, she did not have any concerns about the deceased’s capacity at the time he signed his will. That was a view she had recorded in a file note made on the evening of 10 February 2021. In that note she described Paul as ‘very responsive’ given his physical condition, and as being able to convey his testamentary intentions without any assistance. The note was not made immediately following the attendance but I am satisfied that it was made whilst the events were fresh in her mind. 112 Ms Johns was an honest witness. Whilst she was unable during cross- examination to give an example of an observation in her affidavit that the deceased asked appropriate follow-up questions, this did not cause me to generally doubt the reliability of the evidence she gave, which was corroborative of that given by Ms Cortazzo. 113 Ms Johns played a lesser role than did Ms Cortazzo and, consistently with this, she appeared not to have retained an independent recollection of specific interactions to the same extent as had Ms Cortazzo. Dr Daniel Sansome 114 Dr Sansome obtained his Bachelor of Medicine, Bachelor of Surgery from the University of Adelaide in 2020 and was at relevant times a trainee of the Royal Australian College of Physicians employed as a Basic Physician Trainee (Resident Medical Officer) at the Central Adelaide Local Health Network. An affidavit he affirmed on 28 January 2025 was received into evidence.53 115 Dr Sansome was a careful and honest witness. However, he had no independent recollection of his encounters with the deceased at the RAH and his evidence effectively comprised a commentary on clinical notes involving him. 116 Amongst other things, he had observed, on 10 February 2021, that the deceased was oriented as to the year and the place, had insight into why he was in hospital, understood he had cancer with a limited prognosis and understood that the plan was for him to be transferred to hospice for end of life care. 117 Dr Sansome had been present whilst Dr Takhar assessed the deceased as competent to give legal instructions or directions, in that he had no discernible cognitive impairment. He completed a letter to that effect, the terms of which were set out earlier in Part C. He disagreed with the suggestion that this was intended 51 Exhibit R7 (Johns). 52 Tr 194.8-9. 53 Exhibit R10 (Sansome). -- 31 of 192 -- [2026] SASC 115 B Doyle J 30 to be limited to end of life care arrangements; he believed the words were intended to encompass legal documents such as an advanced care directive or a will.54 Dr Miriam Cursaro 118 Dr Miriam Cursaro obtained her Bachelor of Medicine, Bachelor of Surgery from Flinders University in 2010. After completing basic physician training she commenced advanced training in geriatric medicine and became a Fellow of the College of Physicians, specialising in geriatric medicine, in 2022. Since that time she has worked as a consultant geriatrician at the RAH. 119 At the time of her interactions with the deceased, she was in her final year of advanced training in geriatric medicine, completing a rotation in palliative care. She was job-sharing with a palliative care registrar, Dr Emma Brook. She also holds a Graduate Diploma in Palliative Care. 120 In Dr Cursaro’s first affidavit sworn 27 November 2024,55 she explained that having reviewed the relevant notes, she had a general recollection of the deceased and her interactions with him on 8, 9 and 10 February. Her evidence addressed, among other things, a discussion with the deceased about end of life care on 8 February 2021, during which he conveyed he was very keen to get his affairs in order before his death. The following day, she discussed with him the different hospice options available to him and she did not have any concern about his decision-making capacity at that time. He was able to participate in the conversation and understand the options available to him. She knew by that time he was planning on making a will and did not hold a doubt as to his capacity to do so. 121 Likewise on 10 December 2021, when she saw him twice, she did not have any concerns about his capacity. On that occasion he expressed his rationale for deciding that he wished to go to the QEH over Flinders Medical Centre. She observed the deceased to be initially drowsy the first time she spoke with him on 10 February 2021, but he improved over time. 122 In Dr Cursaro’s second affidavit,56 responding to the proposition in Dr Hecker’s first report (extracted earlier), she said she did not agree with the final sentence. In her opinion, the CT brain scan report was insufficient to make a diagnosis of cognitive impairment or delirium caused by underlying brain pathology. In her view: It is much more likely that the episodes of confusion and hallucinations documented in the hospital record were related to his underlying metastatic disease and the consequences of it. The fluctuation in Mr Macdonald’s clinical picture referred to by Dr Hecker is more consistent with the presence of ‘simple delirium due to the significance of his other physical 54 Tr 384.34-385.7. 55 Exhibit R15 (Cursaro-1). 56 Exhibit R16 (Cursaro-2). -- 32 of 192 -- [2026] SASC 115 B Doyle J 31 pathology’ (as Dr Hecker described it) than the presence of an underlying chronic brain pathology. 123 By the time she gave her evidence in chief, she had reviewed the CT scan images. This did not give her cause to change the opinion set out above.57 124 Dr Cursaro confirmed in her oral evidence that in the exchanges she had with Paul over several days, she was able to form a view about both his day-to-day functioning, as well as his executive functioning in the context of making decisions about where he wanted to have his end of life care. There were no red flags of the kind that would have caused her to ‘scale up’ her investigations of capacity. There was nothing in her exchanges with him that caused her to think that any changes in the small vessels of his brain were causing an issue for him.58 125 In cross-examination, she was asked questions about the impact of hydromorphone. She accepted hydromorphone could potentially make Paul drowsy and that it did, in fact, make him drowsy during her initial attendance on the deceased on 10 February 2021. Whilst hydromorphone could make it hard for people to remember things that occurred recently, or cause them to struggle to remember details, that was not something she detected based on her discussions with Paul.59 126 Dr Cursaro also accepted that in high doses hydromorphone could lead to impaired judgment and an inability to fully understand consequences of decisions, leading to an impairment in executive functioning.60 However, in re-examination, she said that she did not consider 1 mg to be a high dose, and that she considered 0.5 mg to be a very low dose.61 She confirmed that the effects of hydromorphone wear off relatively quickly, and that a dosage of 0.5 mg might wear off within an hour.62 127 I found Dr Cursaro to be a careful and thoughtful witness. She was clear that she retained an independent memory of some of the matters about which she gave evidence. I was impressed by, and I accept, her evidence as accurately describing her interactions with Paul. Dr Harminder Takhar 128 Dr Harminder Takhar obtained his Bachelor of Medicine, Bachelor of Surgery from Flinders University in 2007. He then undertook specialist training in Medical Oncology and became a Fellow of the Royal Australasian College of Physicians in 2015. Once he completed his specialist training he commenced work 57 Tr 650.21-24. 58 Tr 685.3-23. 59 Tr 676.25-677.2. 60 Tr 677.9-18. 61 Tr 682.34, 683.19-21. 62 Tr 684.13-23. -- 33 of 192 -- [2026] SASC 115 B Doyle J 32 as a consultant at the RAH. At the time of trial he was Interim Medical Director of Cancer Services at the Central Adelaide Local Health Network. 129 In his first affidavit affirmed on 8 November 2024,63 he described his interactions with the deceased on 5, 6, 7, 9, 10 and 11 February 2021. Amongst other things, Dr Takhar explained that during his discussion with the deceased on 6 February 2021 about hospice care, the deceased was alert and engaged and appeared to demonstrate both insight into his condition and prognosis as well as an ability to reason logically and coherently as it related to end of life planning. 130 He explained that when he saw the deceased on 7 February 2021 he was informed of a report from nursing staff that the deceased had been hallucinating. Dr Takhar explained that this was not uncommon among elderly patients nearing the end of life or in acute illness, typically at night. He said that factors that may contribute to these symptoms include illness, medication, altered sleep-wake cycles, being in an unfamiliar hospital environment, and the frequent presence of nurses and other staff coming in and out of the room. Dr Takhar explained that the deceased’s hallucinations were visual and not auditory, and primarily at nighttime. They were transitory, and the deceased had insight regarding them, meaning he was able to identify them as hallucinations and recount what they involved. He was not distressed by them. Dr Takhar’s view on 7 February 2021 was that they were at the lower end of severity and not consistent with the presence of delirium. 131 Similarly, in respect of his attendance upon the deceased on 9 February 2021, the deceased reported further hallucinations but that they had reduced in frequency. He had insight into them. Dr Takhar detected no significant deterioration in his cognition. There was a discussion in which the deceased conveyed that he wished to make a will, and that it was a priority for him. Dr Takhar’s evidence was that he did not have any doubts about the deceased’s capacity to make a will. The deceased was demonstrating an understanding about his condition and prognosis and an ability to reason in a logical and coherent way. 132 Dr Takhar explained that when he saw the deceased on 10 February 2021 it was again the case that the deceased reported some hallucinations overnight, but he was alert and engaged in his discussion with Dr Takhar. Dr Takhar was informed that the deceased was meeting with lawyers to make a will that day and did not have concerns about his capacity to execute a will. Dr Takhar was not aware of the letter signed by Dr Sansome on his behalf, but did in fact hold the view that the deceased was competent to make a will. Based on his interactions with the deceased, Dr Takhar considered the deceased demonstrated an ability to reason logically and coherently. The transitory hallucinations did not call into question the deceased’s level of cognition or ability to reason based upon Dr Takhar’s medical observations. Dr Takhar said that: 63 Exhibit R17 (Takhar-1). -- 34 of 192 -- [2026] SASC 115 B Doyle J 33 Although Mr Macdonald was acutely unwell upon his admission to hospital due to his anaemia and disease progression, his condition had stabilised by 10 February 2021 following treatment with blood transfusions. 133 Dr Takhar explained that on 11 February 2021, the deceased informed him he had completed a will the day prior and was alert and engaged during discussion. In re-examination, Dr Takhar indicated that the ability to retain and recall information was a key aspect of cognitive function.64 134 In his second affidavit affirmed on 19 March 2025,65 Dr Takhar, like Dr Cursaro, disagreed with Dr Hecker’s opinion as extracted earlier in these reasons. He said that a CT brain scan was not a sufficient basis for a diagnosis of cognitive impairment or delirium caused by underlying brain pathology. He thought it much more likely that the episodes of confusion and hallucination documented in the hospital record were related to his underlying metastatic disease and the consequences of it. 135 By the time he gave evidence in Court, Dr Takhar had seen the CT scan images. This did not cause him to alter the views expressed in his affidavits.66 In cross-examination, Dr Takhar said that the mild periventricular hypoattenuation shown on a CT scan did not by itself suggest cognitive impairment, and may not manifest in any symptoms of day-to-day or executive functioning.67 136 I considered that Dr Takhar was plainly a conscientious, balanced and objective witness. Some answers he gave under cross-examination were ambiguous and capable of being understood as concessions that the views in his affidavit were based solely on what was recorded in his notes, but I considered in context that the true effect of his evidence was that his views were based on the discussions described in understandably abridged form in the notes, but about which he maintained a general independent recollection. 137 The cross-examination established that Dr Takhar’s views about capacity were essentially forged in the context of discussions about end of life planning, rather than estate planning, but that did not render his views irrelevant to the ultimate issue. His evidence was that if he held concerns about testamentary capacity he would have directed inquiries to be made. Mr Richard Solomon 138 Mr Solomon is an experienced solicitor. His firm is Richard Solomon & Associates Pty Ltd. He gave evidence in answer to a subpoena. Documents that he produced in answer to a subpoena were also tendered.68 Essentially, the subpoena called for documents concerning: 64 Tr 712.33-36. 65 Exhibit R18 (Takhar-2). 66 Tr 687.21-27. 67 Tr 695.11-696.8 68 Exhibit R14. -- 35 of 192 -- [2026] SASC 115 B Doyle J 34 • communications between Mr Solomon and Dr Hecker in respect of a telephone attendance on 6 December 2021; and • the written retainer between Mr Solomon’s firm and the applicants in relation to the deceased or his estate and the first contact about such an engagement. 139 The forensic significance of the first matter mentioned above is that by letter dated 28 October 2021, on the applicants’ instructions, Mr Solomon had sought a preliminary opinion from Dr Hecker as to the deceased’s capacity. I will return to this topic in greater detail in the context of the respondent’s criticisms of Dr Hecker’s evidence. 140 Mr Solomon’s file note of the discussion was in these terms: TELEPHONE ATTENDANCE FROM DR JANE HECKER IN THE MATTER OF ROGERS v PAUL MCDONALD ESTATE ON EARLY AFTERNOON 6 DECEMBER 2021 [RS287] Paul no doubt at times was very confused and delusional. She asked about the next of kin and I explained that Lyn[n] and Maurice were his cousins and Kate was alleging that she was a close personal friend. She again said that the notes showed a great deal delirious and hallucinating and this was fluctuating. Jane noted the view of the medical team that Paul was able to make a will but also noted that there was no formal assessment. He had a brain scan which did not show anything. She noted that he was a hoarder and if she had to give a more formal opinion then she would need a lot more about how he lived and other factors such as the lawyers’ notes. Jane says she could make a case that he was possibly impaired but she has now spent about 2 hours reading the RAH notes and she does not have enough to say he was probably so impaired that he did not have testamentary capacity at the time of making his will. She has noted from the RAH records that he did not have a previous will and that Kate was very involved with the social worker in quickly arranging this will. There is no doubt that for the previous 3 days he was fluctuating and delirious and the medical opinion [without a proper assessment] says he was OK to a will. It is likely to be borderline as to whether he had testamentary capacity. She says the most concerning information is that the day before nurses say he was struggling to communicate his needs and that he was delirious and hallucinating. If cannot communicate his personal needs then Jane is concerned as to how he can communicate his will needs. Jane’s fee to date is about $400.00 per hour and she charges at $400.00 per hour. She has noted that Paul did not see his GP very often. The ongoing hoarding was very unusual. Janes has noted that Paul was receiving a range of drugs and some of those drugs will keep people more muddled which indicates that for a few days prior to making his will that his judgment was impaired. Jane notes that at 9:00 pm the night before he made his will that he was hallucinating and at 5:00 am on the day of making his will he was hallucinating and delirious and Koreans had shown up. She further noted at 9:00 am that it was noted by staff that he could give legal instructions. -- 36 of 192 -- [2026] SASC 115 B Doyle J 35 Jane says this matter is very tricky. The medical team has assessed him OK to make a will but have given no proper testing. She has also noted that he was not sure of his birthday and very confused as to the time and place at times. At 6.25 pm that night it was noted that he was slightly confused. In summary in at least the 3 days prior to his will making he was delirious and confused and his judgment may well have been impaired notwithstanding the views of the social worker and the medical team. Before giving a full written opinion, Jane will wish to see the will maker lawyer notes and any other relevant information we have. Jane says that she could make a case that Paul did not have testamentary capacity but she did not appear over confident. 141 Mr Solomon gave evidence that his invariable practice was either to dictate or handwrite the notes of an attendance such as this and have it typed up within a few hours of the attendance. He confirmed the record was prepared whilst the facts reported in it were fresh in his mind.69 On the question of accuracy he said that he was ‘probably too obsessed [with putting] things down accurately over the years’.70 He confirmed that the propositions about testamentary capacity being ‘borderline’ reflected statements he attributed to Dr Hecker, and were not his own views. 142 In respect of the second topic to which the documentary subpoena was directed, Mr Solomon explained, with reference to documents, that he was first approached about the matter by Nicole Rogers at 9.45 am on 19 February 2021. Neither she nor her sister, nor the Rogers family, were known to Mr Solomon before this.71 143 I accept Mr Solomon’s evidence about these two issues. In particular, I accept that his file note of his discussion with Dr Hecker, whilst not verbatim, is a substantially accurate record of the opinions expressed by Dr Hecker at that time, save that I would interpret the very last part of the note (‘but she did not appear over confident’) as comprising Mr Solomon’s impression of the way in which Dr Hecker expressed herself, rather than as comprising words she said. As I explain in more detail later, I am also prepared to accept that in respect of the CT scan report, Dr Hecker may have said words to the effect that it did not show anything ‘acute’ or perhaps ‘significant’.72 144 In making these findings I have borne in mind Dr Hecker’s evidence which was that her memory or impression was that she had conveyed to Mr Solomon that ‘this fellow didn’t have capacity’.73 However, there was no suggestion in cross- examination that Mr Solomon’s notes were not an accurate record of the discussion, and it is inherently improbable, given the nature of the task in which 69 Tr 566-567. 70 Tr 568.2-4. 71 Tr 570. 72 See [627] below. 73 Tr 807.35. -- 37 of 192 -- [2026] SASC 115 B Doyle J 36 he was engaged, that he would not have been astute to accurately capture the critical opinions expressed. 145 In relation to the evidence about when Mr Solomon was first retained, my acceptance of that evidence causes me not to accept two aspects of Cate’s evidence in which she said the applicants had disclosed his actual or potential involvement at an earlier stage. As elsewhere explained, my non-acceptance of that evidence has not caused me to find that Cate was not generally endeavouring to be truthful in her evidence.74 Dr Michelle Short 146 Dr Short was not required for cross-examination. Her evidence was contained in an affidavit affirmed on 23 January 2025 and is in a narrow compass.75 First, she confirmed that she had heard Cate speak of her friendship with the deceased (who she called ‘Paul Mac’) over the years since she met Cate in 2000. Secondly, she accompanied Cate to the deceased’s house after he died and made observations about the state of the home and the clutter in it. She expressed the view that the deceased’s hoarding must have been long-standing given the dust and multiple layers of items throughout rooms of the house. Mr Jean-Pierre du Plessis 147 Mr du Plessis undertook a forensic analysis of mobile telephones owned by the deceased and Cate. The purpose of his report,76 which was received on the basis that its admissibility and relevance would be the subject of submissions,77 is essentially to demonstrate the extent of the telephone contact (meaning either telephone calls or text messages) between Cate and the deceased, and between each of the applicants and the deceased. 148 The report shows that over the period between 5 November 2020 and 2 March 2021 there was a significant number of text messages (219) exchanged between Cate and Paul. During a shorter period of 25 January 2021 and 6 February 2021, there were 27 messages between Lynn and Paul, and one from Maurice to Paul. The messages are set out in an annexure. 149 I will receive the parts of the report pressed by the respondent as a convenient collection of information about patterns of communication capable of shedding some light on the underlying relationships between the parties and, in turn, placing the testamentary dispositions in context. Whilst I would not draw any particular inferences of significance from this information alone, the patterns of communication are broadly consistent with the impression I otherwise formed 74 See [597]–[603] below. 75 Exhibit R20. 76 MFI-A9 (du Plessis). 77 The respondent did not press for admission of sections [3.4], [4.4] or [5]. -- 38 of 192 -- [2026] SASC 115 B Doyle J 37 from the oral evidence and the messages that were tendered concerning the frequency of contact between the relevant parties. The applicants’ witnesses Ms Sofie Ikon 150 Ms Ikon lived next door to Paul from 2015, but had some knowledge of him before then whilst she was building on the property, and earlier still, when her great aunt and uncle lived in the property she purchased in 2010. Ms Ikon is a manager in a business that manages properties resumed by mortgagees. 151 Ms Ikon’s affidavit sworn on 9 January 2025 was received into evidence subject to several paragraphs being received for non-hearsay purposes only.78 152 Ms Ikon and Paul became friends and chatted regularly. She regarded him as an intelligent person who would often provide her with advice on work and relationships. They discussed a wide range of topics. She saw him as an introvert. She heard Paul speak about Lynn and her daughters, as well as the ‘lads’. She did not meet or know of Cate until they met on 6 February 2021. 153 Ms Ikon discussed the topic of wills with him when she made one in 2018 and he said that he did not have a will because he only had the house and no one special to leave it to. He said at that time he wanted Lynn to take care of his arrangements when he died. As I will later explain, Cate returned to Gin Gin in Queensland in 2018. I did not consider Ms Ikon’s evidence on this topic to call into doubt the closeness, at various times, of Paul and Cate’s relationship. 154 Ms Ikon relayed that during COVID-19 the deceased did not go out as he was immunocompromised. She purchased groceries for him, including cans of food and long-life items he was used to buying. She said: Paul did not appear to me to be motivated by money. He always said that he was happy to have a home and save some money. As long as he had enough to support himself, [h]e did not need a lot in life, just enough to get by. Paul did not want to go on holidays on his own, and he didn’t like travelling with other people. He was never interested in investments either. 155 In her evidence, Ms Ikon recounted her memory of visiting the deceased at the RAH on 6 February 2021 and meeting Cate. 156 She also recounted visiting Paul in hospital on 9 February 2021 to say her ‘final goodbye’. That was when she first met Lynn and Maurice. She also spoke with Cate that day and ascertained that ‘the lads’ had not been informed of Paul’s condition. She rang Mike Brennan, with whom the deceased had been close from his university days. Ms Ikon recounted that Cate asked Paul to inform her whether he wanted Cate to be an executor with Lynn. He said that he did. After this Cate asked Ms Ikon if she could arrange an urgent drawing of a will because the one 78 Exhibit A7 (Ikon). -- 39 of 192 -- [2026] SASC 115 B Doyle J 38 written on 6 February 2021 may not ‘hold up’ as it was handwritten. Ms Ikon said she would recommend an independent solicitor, and she subsequently exchanged emails with solicitor she knew at Piper Alderman, Ms Benge.79 At 4.06 pm that day, Ms Ikon wrote, relevantly: My neighbour is terminally ill and is currently in the critical ward unit in RAH. He does not have a will, and I was hoping you may be able to assist. As he does not have any dependents, he would like to split the estate between his 2 cousins and his best friend (Cate, cc’d in email). To ensure his wishes are followed, he now realises that he needs to formalise this with a will. I saw him earlier, and whilst he is fragile and tired, he is still of sound mind. Are you able to assist with the will preparation or suggest someone who might be under short notice? 157 In cross-examination, Ms Ikon confirmed that based on her discussion with the deceased on 9 February 2021, the conversation flowed quite well and nothing he said or did gave her any reason to think he was not of sound mind. When giving that evidence she understood the expression ‘sound mind’ to mean there was no impairment of cognitive or intellectual functioning preventing a person from making a valid will.80 She also confirmed that the information about beneficiaries was information she gained from both of Paul and Cate in discussions on that day.81 158 Ms Benge indicated availability to attend on 11 February 2021, but Cate sent an email on the morning of 10 February 2021 conveying that Pramilla (Ms Khambatta) had arranged a lawyer to come in that morning. In her affidavit Ms Ikon said she had said to Cate that Paul was well enough to wait two days but that Cate was concerned he would not make it through the night and wanted to arrange a lawyer as soon as possible. 159 Ms Ikon stated in her affidavit that she wanted to visit Paul alone on the evening of 10 February 2021 and was concerned about Cate’s involvement. Ms Ikon said she asked Paul whether anyone was coercing him into making any decisions and he ‘sort of made a joke and asked if I wanted to be added in the will’. She thought it was a tongue in cheek response and was a little hurt. She changed the topic. They discussed a number of other things including, according to Ms Ikon, whether he had been ‘in relations’ with Cate, to which he answered ‘no’. When Ms Ikon said she would not be able to visit the next two days he said he did not think he would see her again. Paul was upset throughout the discussion. He seemed to be in pain. Ms Ikon did in fact see Paul again on 15 February 2021 at 79 Exhibit R44. 80 Tr 508.15-31, 532.6-21. 81 Tr 533.21-37. -- 40 of 192 -- [2026] SASC 115 B Doyle J 39 the QEH. She gave evidence of some interactions with Lynn and Cate on that occasion, and some subsequent communications. 160 In the course of her cross-examination, it emerged that some passages in her affidavit involved an element of overstatement or perhaps licence, influenced by the fact that at the time she made the affidavit, she had developed a somewhat unfavourable view about the respondent and the role she perceived Cate played in assisting with the preparation of a will from which she would benefit. 161 For instance, she had said in her affidavit that on the evening of 6 February 2021, when she visited Paul, ‘Cate stayed in the room and did not let me have a conversation with him without her present’. In cross-examination, she acknowledged Cate had said nothing to that effect, and that she had not asked for time alone with Paul.82 162 Likewise, despite the concern expressed in her affidavit about possible influence on Cate’s part in the deceased making arrangements for a will, Ms Ikon agreed that she had participated in trying to organise a lawyer because it was something that she herself believed needed to be done.83 She shared the concern about the will being prepared before Paul got any sicker or possibly passed away.84 163 Further, in cross-examination about the deceased’s response when Ms Ikon had raised with him the question whether he had felt under any pressure to make a will, Ms Ikon accepted that the joke that the deceased made was consistent with the personality she had come to know over many years. He had made a joke to the effect that Ms Ikon was overbearing his will when she asked him about whether someone had been overbearing his will. This was an example of how he would deploy a quirky sense of humour to avoid an otherwise uncomfortable topic.85 164 She accepted that the view she held of the deceased’s capacity on 10 February 2021 was as reflected in a text message she sent to Cate on the early afternoon of that day, namely: ‘His mind is sharp most of the time but his body is failing him’.86 165 Whilst Ms Ikon’s affidavit contained some statements that, upon further questioning or clarification in cross-examination, appeared not to be entirely balanced or fair, I was satisfied that her testimony in court was given conscientiously and that she made appropriate concessions that ultimately enabled me to form an accurate picture of the events to which she was witness. Ms Racheline (Lynn) Rogers 166 Lynn and Maurice were the children of Victor Aladjem. Paul’s mother Victoria was the older sister of Victor. Lynn was born in 1945 and is about six 82 Tr 514-515. 83 Tr 544.1-13. 84 Tr 545.1-3. 85 Tr 547. 86 Exhibit R41. -- 41 of 192 -- [2026] SASC 115 B Doyle J 40 years older than Maurice. Her husband was George Rogers. George died in November 2021. She and George had two daughters, Natasha and Nicole. Paul was their godfather. 167 Lynn was a lecturer in biochemistry at the University of Adelaide. She officially retired in 2020. George had been a professor in biochemistry at the same university. 168 In her affidavit affirmed on 9 January 2025 which, subject to a number of exclusions and qualifications, was received into evidence,87 she recounted her and Paul’s family history. She described the Paul she knew: eccentric, idiosyncratic and effeminate. 169 In her affidavit, Lynn described her observations of the deceased at the RAH from 6 February 2021. She was shocked at the weight he had lost over a short period of time. She described her interactions with Cate who she met for the first time that day. There are some discrepancies in their accounts of their interactions and the conversations with Paul on that day. The differences in accounts extend to the way in which the ‘note’ was prepared. 170 Lynn’s evidence was that she visited Paul on 6, 7 and 8 February 2021.88 She recalls Paul hallucinating whilst in the RAH on 6 and 7 February 2021. She cannot recall if she attended on 9 February 2021. On 10 February 2021, she did not attend the RAH, but she spoke to Paul by phone in the morning. She recounted the deceased asking her to contact his father (who had died many years earlier). Her evidence was she did not know that a will was signed that day, although, later in her affidavit, she said she had been told by Ms Ikon ‘a few days earlier’ (than 14 February 2021) that a will had been made. 171 Lynn described visiting Paul at the QEH on 12 February 2021 and observed him to be hallucinating on that occasion. She said that on 14 February 2021 she asked Cate about the will, and that Cate was defensive. Her evidence is that she first engaged Richard Solomon on 19 February 2021 and it was only after doing so that she realised that she and Maurice would have been entitled to the deceased’s estate if he had died intestate. 172 Lynn described Paul’s condition as worsening in his final days at the QEH and recounts him making disparaging or irrational remarks about people including nurses. 173 Lynn gave evidence that after Paul’s death she attended the Marden post office and was given a huge pile of mail relating to the deceased. 174 When it came to the deceased’s relationship with Cate, Lynn was defensive and argumentative in her evidence. Although she had read various written 87 Exhibit A17. 88 As I explain later, I find Lynn did not attend on 7 February 2021. -- 42 of 192 -- [2026] SASC 115 B Doyle J 41 communications between the deceased and Cate that suggested a friendly relationship, she held to the view that they did not in her opinion demonstrate a personal relationship.89 When asked about whether, as suggested by a file note, she had told Ms Cortazzo on 19 February 2021 that ‘Paul was still besotted by her’, she first said she could not remember saying that, but ultimately she said that maybe she did.90 Lynn then said that maybe she used the word but did not think it was the case, and then said Paul was not himself for a long time and when in hospital he was a completely different person.91 175 Lynn accepted in cross-examination that she had known since 6 February 2021 that the deceased was contemplating making a will and that the reason why it was not foremost in her mind was that it was the last thing she wanted to be talking about with someone who was facing the reality of having only days or weeks to live.92 She also made clear several times in her evidence that she regarded it as inappropriate that Cate was talking about organising Paul’s affairs while he was still alive.93 When pressed further that what she said reflected her observation that Paul and Cate had a relationship of affection and friendship she said:94 Maybe. Maybe I was just being nice to Cate. 176 Lynn’s evidence about her text message exchange with Maurice on 13 February 2021 was also somewhat defensive. It was clear that she had been contemplating falsely suggesting to Cate that she had spoken with a lawyer about the legalities of Cate having access to Paul’s property before his death. In cross- examination she initially proposed that maybe she did ask her son-in-law (a lawyer),95 before eventually saying, in answer to the suggestion that she was proposing to lie to Cate: ‘maybe’.96 177 A little later, it was put to her that she viewed Cate and the finalisation of the will through a prism of Cate being a ‘gold digger’ who stood to benefit from the will. She agreed.97 178 Whilst I considered that Lynn’s (genuinely felt) negative views about Cate (in particular, the fact that Cate was talking about and wanting to start discussing estate arrangements before Paul died) coloured her impressions of and recollections about Cate’s conduct, and that aspects of her evidence about Cate could not be accepted, I nevertheless felt that Lynn was doing her best when giving evidence to assist the Court. That said, I found that as to the detail of interactions with the deceased at hospital, her evidence was not as detailed or reliable as that 89 Tr 890-891. 90 Tr 913.34-914.17. 91 Tr 914.18-33. 92 Tr 898. 93 See, eg, Tr 913.13-16. 94 Tr 914.34-38. 95 Tr 922.32. 96 Tr 923.8-10. 97 Tr 923.35-924.1. -- 43 of 192 -- [2026] SASC 115 B Doyle J 42 of Cate. That may be in part a reflection of the fact that, at the time of the key events, she was also pre-occupied with caring for her husband. Mr Maurice Aladjem 179 Maurice was born only a few months after his cousin Paul, in 1951. He worked as an art educator before becoming an established artist in his own right. His evidence was contained in an affidavit affirmed on 10 January 2025 which, subject to exceptions and limitations, was received in evidence.98 Some parts of that affidavit were supplemented in a second affidavit affirmed on 28 March 2025.99 180 After his and Paul’s families moved to Adelaide in their early childhood, they spent time together over the years as children. Their families shared Christmas and caught up on birthdays. When they attended University they saw each other less often. 181 Maurice’s perception was that Paul was idiosyncratic from a young age. Even as an adult he would sometimes use overexaggerated gestures and facial expressions, speak in monologues and mimic John Cleese. He was articulate and effeminate, although the latter became less obvious over the years. He could appear awkward and socially inappropriate at times. 182 Over the years Paul spoke to Maurice about his negative experiences at school and also having attended gay bars in the 1970s, as well an incident when he was bashed outside a gay haunt.100 After that incident, Paul sometimes told offensive gay jokes. Maurice was aware that Paul had a group of friends (‘the lads’), including Mike, but he had not mentioned Cate to Maurice. Maurice did not meet Cate until Paul was admitted to hospital in February 2021. 183 In cross-examination, Maurice accepted the proposition that of the last 48 or so years of Paul’s life, he and Paul were living in different cities or were geographically remote for about 32 years of that period.101 He also agreed that even when they were in the same city, they did not actually see a lot of each other.102 184 Turning to the events of February 2021, Maurice gave evidence of his interactions with Paul and others including at the RAH and later the QEH. 185 Maurice was informed by Lynn that Paul was in hospital on 4 February 2021 but was not able to visit until 6 February 2021. He said that when he saw Paul for a short period early in the day on 6 February 2021 he was shocked at how thin and grey Paul was and that he seemed to be hallucinating. 98 Exhibit A10 (Maurice-1). 99 Exhibit A11 (Maurice-2). 100 Maurice’s evidence on this topic was received not for the truth of statements made by Paul but as some evidence of the closeness, at times, of their relationship. 101 Tr 605.13. 102 Tr 606.4. -- 44 of 192 -- [2026] SASC 115 B Doyle J 43 186 Maurice said that he visited again on 7 February 2021 and that Paul was focusing on a photograph of the outback hanging in front of his bed and was seeing things in the image moving in and out of the room, and was talking about money he had hidden in books in his home. Maurice could not recall whether he saw Lynn that day, but recalled this was the occasion he and Louise met Cate, outside Paul’s room. He thought Cate seemed friendly but had a memory of Cate referring to Paul’s ‘affairs’. 187 Maurice visited Paul again on the morning of 8 February 2021 and, although his evidence was not detailed, he thought Paul was acting as if he was hallucinating. 188 Maurice also visited Paul on the morning of 9 February 2021. On this occasion Maurice recalls Paul being upset because he had been told he only had a few days to live. Maurice recalled Paul asking who was behind him when there was no-one there. Maurice’s affidavit did not mention any discussion on that day with or involving the social worker about the making of a will, nor Paul saying he wanted to wait for Cate to arrive. 189 Maurice did not visit Paul on 10 February 2021, the day the will was made. He visited on 11 February 2021 and remembered that after he returned to Paul’s room after his fingernails had been washed by nurses, he said something incoherent about women being ‘whores’ and referring to his deceased parents as if they were alive. In his affidavit evidence, Maurice said he did not remember seeing Cate in Paul’s room that day, although he ‘may have seen her at the hospital generally, but [he could not] recall’.103 190 Maurice visited Paul at the QEH on 13 February 2021 and found Paul to be extremely weak, disoriented and hallucinating. He remembered a confrontation between Cate, Lynn and him, concerning Cate having the keys to Paul’s house. 191 On 14 February 2021, Maurice visited early in the morning and observed Paul to be gaunt and worse than he had seemed the day before. There was a discussion about Cate using Paul’s car, to which he agreed. Cate got the will out of Paul’s bag and gave it to Maurice to read. He observed or understood that the will left Paul’s estate between Lynn, Cate and him. 192 Maurice spoke with Paul at the QEH on 16 February 2021 at which time he recalled Paul being lucid and referring to hallucinations with an awareness that they were not real. Maurice saw Cate and Raj, Cate’s sister Jennifer as well as Mike Brennan that day. 193 Maurice attended on 18 February 2021 when Paul died. He described a heated discussion between Cate and Lynn on that occasion. 103 Maurice-2 [13]. -- 45 of 192 -- [2026] SASC 115 B Doyle J 44 194 At the outset of Maurice’s cross-examination, when asked a question about his memory, he said that:104 A Well, what seems to have happened during the course of this time is many things have homogenised. And I’m not a computer, and there are times when I try to remember Paul, remember things, that I don’t remember exact times, exact dates, exact places. 195 In relation to the events of 9 February 2021, Maurice was confronted with Cate’s evidence to the effect that he and Lynn had told her that they had been discussing the preparation of a will earlier that morning with Paul and the social worker (Ms Khambatta), and that Paul had said he did not want to discuss that until Cate was present. He was also confronted with the file note of Ms Khambatta which, on one reading, was consistent with that.105 As to the conversation with Ms Khambatta, Maurice said ‘It may have happened. I don’t recall that at all’.106 As to the conversation with Cate, he could not recall relaying what was suggested, but when asked whether he allowed for the possibility that maybe he did and his memory was letting him down, he said ‘Maybe’.107 196 Maurice was cross-examined about text messages exchanged with Lynn in which Lynn was proposing that Cate be (falsely) informed that a lawyer had suggested she was required to return Paul’s keys. Maurice was taxed with the fact he did not discourage Lynn from being dishonest. It was put to him he was happy to go along with this. He said ‘I don’t see it like that’.108 197 My sense of Maurice as a witness and as a person is that whilst some of his answers may have involved a degree of prevarication, this was more a reflection of being a somewhat passive and non-confrontational character109 who was reluctant to give answers overtly critical of his sister and that, consistent with that, he was unlikely to disagree with this sister’s views about Cate at the time they were formed and expressed in February 2021.110 I do not consider he was a dishonest witness. He was prepared to accept that his own memories were not clear. My sense was that his affidavit evidence was somewhat selective, highlighting things he could recall that were generally supportive of the applicants’ case. This means that the fact he did not give evidence of a particular exchange cannot be assumed to convey that he is in a position to dispute it. As his answers under cross- examination showed, he was prepared to accept that some events recounted by others may have occurred. Whilst sometimes initially reluctant, he did make some appropriate concessions in cross-examination. An example concerned the extent 104 Tr 593.4-8. 105 Exhibit R22, p 1014. All references to pages of Exhibit R22 are to pages of the Joint Tender Book. 106 Tr 600.3. 107 Tr 601.28. 108 Tr 611.17. 109 Maurice’s text message to Cate and Lynn sent on 19 February 2021 (Cate, Exhibit CJR-21), is indicative. Maurice sought to diffuse tensions and encouraged Cate to be patient with Lynn and conveyed that Paul would have wanted them to look up to his ‘big sister’. 110 See, eg, the text messages the subject of cross-examination at Tr 632-633. -- 46 of 192 -- [2026] SASC 115 B Doyle J 45 to which, by 9 February 2021, he was aware that Paul was intending to make a will. The following exchange occurred:111 Q You were aware, weren’t you, by the time of this exchange, of the handwritten note that had been made on 6 February at the hospital where Paul indicated how he wanted to dispose of his estate. A No, not that I recall. Right now I can’t recall that. Q So you were in very regular contact by face to face and telephone contact with Lynn, as well as text messages, weren’t you. A Pretty much so. Q Do you allow for the possibility that you were told that a piece of paper had been prepared and that he had signed it in relation to what he wanted to do with his estate. A Could have. I can’t recall right now. Q So it’s possible that by the 9th - you allow for the possibility that by 9 February you knew that some steps had been taken to try and document how he wanted his estate disposed of. A I’d say so. Q And what I want to suggest to you is that by 9 February, in fact you were aware of the fact that the social worker, Pramila, was trying to organise a lawyer to make a formal will. A Yes. Q And can I suggest to you that as confronting and as tragic as the news that Paul had very little time left, it’s completely unsurprising that that’s what then would have happened, namely him trying to organise his affairs. A Of course. 198 Overall, my assessment of Maurice as a witness was that whilst he was not dishonest and was, in fact, generally doing his best as a witness, there was a need for caution as to the reliability of his evidence and a risk that it might not, read in isolation, present an entirely balanced picture of events. As the cross-examination revealed, in his contemporaneous communications around 10 February 2021, there was no discussion of the proposition that Paul lacked capacity to make a will, and he was focused upon the emotion of losing his cousin,112 whereas his affidavit tended to highlight interactions that might point against capacity. 199 I accepted Maurice’s statement in evidence that he had felt he had not properly grieved Paul’s death and that this was making the process of giving evidence difficult.113 Whilst that might have seemed a self-serving and unlikely 111 Tr 616.6-35. 112 Tr 617.18-618.8. See also Tr 629.3-9. 113 Tr 597.23-28, Tr 628.16-18. -- 47 of 192 -- [2026] SASC 115 B Doyle J 46 excuse for a witness of his age and experience in life, it struck me as genuine. To the extent that his evidence lacked balance, I accept that was largely as a result of the subconscious overlay of a negative perception of Cate and her case that he formed around and after Paul’s death, and which has continued since. Mr Stephen Cramond 200 Stephen Cramond is an old friend of Paul’s from teaching days and as part of a group of friends who met at and around the University of Adelaide. His evidence was tendered by way of affidavit114 and he was not cross-examined. 201 He spoke to Paul on the phone once while he was in hospital to offer support and condolences, although he accepted it may have been twice. The conversation ended when it became clear to him that Paul was getting tired and no longer following what was being said. They mainly spoke about how Paul was and whether Paul had seen Mike. Mr Cramond was not aware of Cate or of Paul ever having been in a relationship with her. That said, he did not address in his evidence whether Paul had spoken about the applicants, or Lynn’s daughters. Given the picture presented by other evidence about the deceased’s compartmentalisation of aspects of his life, I do not place much if any weight on Mr Cramond’s lack of knowledge of any relationship between Paul and Cate. Dr Jane Hecker 202 Dr Jane Hecker is a registered medical practitioner with specialist qualifications in internal medicine as a Specialist Physician in General Internal Medicine and Specialist in Geriatric Medicine with Fellowship of the Royal Australian College of Physicians and Fellowship of the Royal College of Physicians. 203 Dr Hecker is a part-time senior consultant physician / geriatrician at the RAH, Department of Internal Medicine. She has a private practice at Calvary Adelaide Hospital (inpatient rehabilitation and geriatric assessment). Dr Hecker established a Memory Disorder Study Unit at Repatriation General Hospital and a Memory Clinical Trials Unit at the RAH. She has extensive experience in the assessment and management of memory disorders, cognitive impairment and dementia and legal capacity in relation to those disorders. 204 Dr Hecker has extensive medico-legal assessment experience. 205 Dr Hecker’s evidence comprised an expert report dated 22 November 2022,115 supplemented by a further report dated 30 August 2024.116 She gave oral evidence and was cross-examined extensively. 114 Exhibit A8 (Cramond). 115 Exhibit A14 (Hecker-1). 116 Exhibit A15 (Hecker-2). -- 48 of 192 -- [2026] SASC 115 B Doyle J 47 206 In her first report, Dr Hecker: • recited in chronological fashion various matters she had noted from the RAH medical records, including various observations made by hospital staff about hallucinations; • described what was shown by ‘drug records’ and, after listing a number of medications and dosages, observed ‘All of these drugs have impacts on alertness and cognition’; and • referred to photographs of Paul’s house and environs. 207 Under the heading ‘Summary Opinion’, Dr Hecker said: In summary I believe Mr Macdonald suffered significant impairment in attention and cognition on the day (10th February) in which he provided instructions for his Will, and later in the day when he signed these. This impairment is likely to have been due to a combination of background brain pathology (most likely subcortical small vessel ischaemia) plus superimposed delirium due to his multiple acute medical issues and the drug treatments being provided. Based on the information in the medical notes, I feel it is more likely than not, that he did not retain the ability to recall all the relevant information on which to base a testamentary decision, nor did he retain the executive capacity to weigh up various options and reason regarding his differing options and effectively express these to his lawyer. It is very likely he was readily influenced by those around him. Although his treating oncology team provided a very brief statement that he retained capacity for ‘legal directions’ there is no evidence or documentation that they conducted an appropriate assessment of his capacity, no questions were asked to probe the relevant questions and no objective cognitive testing was conducted. 208 Dr Hecker’s supplementary report contained some responses to and comments on the report of Dr Innis, but her summary opinion was unchanged. 209 As will be explained in more detail, Dr Hecker’s oral evidence was given with the benefit of having reviewed the CT scan films, as distinct from the radiologist’s report. 210 Dr Hecker’s conclusions as expressed in her reports were challenged in the course of cross-examination, and a broader attack was made upon her approach. It will be necessary to return to this in more detail later. For present purposes it suffices to identify a key proposition put to her during cross-examination, namely, that many or all of the factors relied upon in Dr Hecker’s report had been available to her, if not reviewed by her, when she expressed to Mr Solomon an opinion that was far more equivocal than the opinion expressed in her report. It was put to her that it was only by presenting a selective (and in some respects incorrect) sub-set of the clinical observations, that she was able to justify the opinion in her written report. It was suggested she had tailored her report and evidence to make an argument against capacity, as Mr Solomon’s note suggested would be necessary in order to justify that conclusion. -- 49 of 192 -- [2026] SASC 115 B Doyle J 48 211 I return to the substance of her evidence later, but I indicate here that whilst I found aspects of her evidence to be unhelpful (because the evidence was argumentative or non-responsive), and whilst her reports presented the material that supported her opinions without always identifying material that might be thought to point in a different direction, I accept that she genuinely held the views she expressed. She may have been advocating for acceptance of those views, but she was not merely advocating for the clients of those instructing her. Dr Alicia Innis 212 Dr Alicia Innis is a geriatrician. She holds a Bachelor of Medicine, Bachelor of Surgery from James Cook University and Fellowship with the Royal Australian College of Physicians in geriatric medicine. 213 She prepared a report dated 2 July 2024.117 This was prepared for the respondent’s previous solicitors, but Dr Innis was called as a witness by the applicants. In that report, Dr Innis opined, inter alia, that: • it was probable that the deceased understood the nature of a will at times when he was alert and able to engage meaningfully; • it was possible he would have known what his estate included but more likely than not he did not understand the extent of his estate; • the deceased had not considered all potential beneficiaries and his subsequent inclusion of Maurice was concerning; • it was highly likely the deceased was vulnerable to suggestion. He appeared to be suffering from terminal delirium and was receiving multiple psychotropic medications known to alter cognitive ability; • there was evidence of him having small vessel disease which would have predisposed him to the delirium he appeared to be suffering at the end of life; • the threshold for choosing where you wish to receive end of life care is a lot lower than that required to execute a will. 214 In a supplementary report dated 4 July 2024,118 Dr Innis responded to further materials that had been provided by the solicitors retaining her. These included further materials from Adelta Legal’s file, the file note of Mr Solomon regarding his attendance on Dr Hecker, and Dr Hecker’s first report. In the course of her report, Dr Innis said that she felt ‘that the balance of probability based on the medical information provided leans quite clearly on the side that Mr Macdonald lacked testamentary capacity’. 117 Exhibit A12 (Innis-1). 118 Exhibit A13 (Innis-2). -- 50 of 192 -- [2026] SASC 115 B Doyle J 49 215 The reference to a finding on the balance of probability in respect of an ultimate issue exposes a question about the admissibility of opinions expressed by the experts. The reports were tendered at trial by the applicants, who acknowledged that there was a question whether opinions addressing the ultimate issue were admissible. I received the reports de bene esse noting the potential limits to the use or weight that could be made or given to expressions of ultimate opinion. The approach I have adopted is that whilst the expression of ultimate opinions is important context for my understanding of the opinions expressed by the witnesses, it is only the reasoning relating to any such opinion, rather than the ultimate opinion itself, that can be relied upon. Particularly is that so where, as is the case in the example under consideration, the opinion is expressed by reference to an evidential standard that is for me, and not the experts, to apply. This is not intended as a criticism of the experts per se. It is rather a recognition of the fact- finding responsibility of the Court, and the limits of the expertise of subject-matter experts. 216 In the course of cross-examination, Dr Innis was invited to consider how her views might differ based on different or additional facts about the deceased. I will return to the significance of that evidence. 217 For present purposes I indicate whilst my initial impression formed in the early stages of cross-examination was that Dr Innis had a confident, perhaps even faintly hubristic, manner of giving evidence, she ultimately showed a preparedness to consider alternative interpretations of events and I found her to be a conscientious and helpful witness. Witnesses not called 218 Dr Stephen Daniels saw the deceased as a patient at the Klemzig Medical Centre between March 2019 and September 2020. Medical records obtained from the centre were tendered.119 Dr Daniels was not called as he had no memory of his interactions with the deceased. 219 Dr Alex Liew is a qualified general practitioner as well as a Chinese medicine doctor. He was also a friend of the deceased. He saw the deceased between 26 January 2021 and 2 February 2021. Unsuccessful efforts were made in 2025 to secure evidence from him. There is no occasion to draw any inference from his absence. Text messages exchanged between Dr Liew and the deceased were tendered.120 I refer to these later. 220 Another witness whose evidence might have been significant but who was not called is the social worker, Ms Pramila Khambatta. Efforts were made to secure her attendance as a witness but she was not called. There is no occasion to draw any inference contrary to the interests of any party from her absence. 119 Exhibit R23. 120 Exhibit R33. -- 51 of 192 -- [2026] SASC 115 B Doyle J 50 221 The respondent submitted that there was an occasion to draw adverse inferences from the fact that Natasha and Nicole Rogers (Lynn’s daughters and Paul’s nieces) were not called. She also highlighted that Lynn’s evidence was that she had accidentally deleted messages between her and her daughters, and not made any inquiries about whether her daughters had retained those messages. As I later explain, I have decided not to draw adverse inferences as a result of those witnesses not being called. Documentary and other evidence Solicitors’ files and records 222 Two files of Adelta Legal were tendered. The first was in Paul’s name and titled ‘Re: Will’ (the ‘will file’).121 The second was opened in the name of Paul’s estate and was titled ‘Re: Administration of Estate’ (the ‘estate file’).122 223 The will file contains, amongst other papers: • a handwritten file note dated 9 February 2021 recording a phone call from ‘Tremila (RAH)’, which was obviously a reference to Ms Pramila Khambatta; • an instructions sheet containing hand-written notes (‘the instructions’); • a hand-written file note of Ms Johns; • a typed file note of Ms Cortazzo; • the pro forma will; • the will; and • the letter prepared by Dr Sansome in his and Dr Takhar’s names dated 10 February 2021. 224 The estate file appears to commence with a note of an attendance on Cate on 19 February 2021 in which Ms Cortazzo was advised that Paul had died on 18 February 2021. The note suggests that she gave some basic advice about how Cate might perform her executorial duties whilst minimising conflict with Lynn in the short term. There is also a note of a call from Lynn on the same day which records Ms Cortazzo telling Lynn that Cate was not present when the instructions were taken or the will executed. The note records Lynn asking whether Paul was coherent and records Ms Cortazzo saying she believed he had capacity and that she had a doctor’s letter. 121 Exhibit A2. 122 Exhibit R9. -- 52 of 192 -- [2026] SASC 115 B Doyle J 51 225 The contents of the file show that a dispute developed and that, in this context, Ms Cortazzo dealt with Mr Solomon, who was acting for Lynn. Mr Solomon wrote on 22 April 2021 asking various questions. Ms Cortazzo responded by letter dated 7 May 2021 enclosing a signed statement of the same date (‘signed statement’). 226 The documents produced by Mr Solomon in answer to subpoena were also tendered.123 Apart from the file note of the discussion with Dr Hecker, the only real significance of these documents was to date the first point of contact with Mr Solomon on Lynn’s behalf. Medical records 227 The deceased’s clinical records from the Trinity Gardens Medical Centre were tendered.124 They demonstrate that Paul attended for appointments fairly regularly from at least 1999. His general practitioner was Dr Peter Cameron until about March 2019, when he commenced to be cared for by Dr Stephen Daniels. 228 These records showed that, for a period, he was prescribed anti-depressants, including but not limited to Duloxetine. This ceased in March 2016, with a note made in June 2016 recording he was ‘[f]eeling much better since stopping duloxetine’. A subsequent note suggested ‘no problems’ in that regard. There is no suggestion that he received psychological treatment for depression, and his Medicare Patient History Report does not reveal that he sought treatment from a psychologist or psychiatrist.125 229 The deceased’s clinical records also show that for a time he suffered from sleep apnoea. He underwent surgical treatment for obstructive sleep apnoea in 2011. Whilst he appears to have suffered some ongoing problems in that regard, the notes suggest that from September 2017, the deceased was no longer suffering sleep apnoea following weight loss. Weight measurements confirm that from a peak weight of over 90 kg in 2009, the deceased’s weight reduced steadily, probably due to dieting initially and then illness and age. In 2019, he weighed 69 kg. (He lost further weight in the lead up to his admission to hospital in February 2021). 230 The records show that Paul was diagnosed with diabetes in about April 2013. They also reveal that he suffered from high blood pressure (hypertension) and high cholesterol (hypercholesterolaemia), which was managed with medication. 231 The clinical records do not suggest that, so far as his general practitioner interactions were concerned, alcohol use was a significant health issue for him. In 123 Exhibit R14. 124 Exhibit R23. 125 Exhibit R24. -- 53 of 192 -- [2026] SASC 115 B Doyle J 52 that regard, he was noted on his admission to the RAH to be, at that time at least, a non-drinker.126 232 As has been mentioned, Paul was first diagnosed with cancer in 2016. He underwent surgery and multiple cycles of chemotherapy. 233 The clinical records obtained from the RAH were also tendered, and were addressed by various of the witnesses in their evidence.127 These records assist in providing a chronology of events, establishing the medications administered to Paul and recording, although sometimes in summary fashion, contemporaneous clinical observations and other interactions relevant to the disputed issues. I make extensive reference to these records in Part E. 234 Amongst those records is a reference to a dementia and delirium screen undertaken in respect of the deceased on 3 September 2020, which reported a score of zero and a note to the effect that delirium or severe cognitive impairment was ‘unlikely’.128 235 The records include a radiologist’s report of a CT scan of the deceased’s brain undertaken on 4 February 2021.129 The original report was prepared by Dr Boas and it was reviewed by Dr Salonikis. Relevantly, the report states (underlining added): FINDINGS: There is no acute intra or extra-axial mass, collection or haemorrhage. No established large territorial infarct, the grey-white matter differentiation is globally preserved. Ventricular and sulcal calibre age appropriate. Mild periventricular hypo attenuation nonspecific commonly encountered in the context of small vessel ischaemia. Posterior fossa and midline structures are normal. Basal cisterns, C P angles and deep grey nuclei are normal. There is no hyperdense vessel noting calcification of the carotid siphon. The orbital soft tissues are normal. Paranasal sinuses and mastoids are pneumatised. The imaged skull base and cavarium are intact. CONCLUSION: No acute intracranial finding. 236 Following their production pursuant to a subpoena, the underlying CT brain scan films were also tendered.130 126 Exhibit R22, p 908. 127 Exhibit R22. 128 Exhibit R22, p 943, referred to in Hecker-1, p 5. 129 Exhibit R22, p 1084. 130 Exhibit A18. -- 54 of 192 -- [2026] SASC 115 B Doyle J 53 Bank statements and bills 237 A number of bills, some containing handwritten annotations, were tendered, along with bank account statements.131 A forensic issue arose at trial about the state of Paul’s personal affairs upon his admission to the RAH, and the steps that Cate took in dealing with his mail and outstanding accounts. Text message and email exchanges between Paul and Cate 238 The documentary evidence also included: • a bundle of email correspondence between Paul and Cate spanning from 2009 to shortly before Paul’s death;132 • a bundle of email correspondence between Paul and Cate concerning an issue about the Bundaberg Regional Council rates;133 and • a bundle of text messages exchanged between Paul and Cate between late 2020 and shortly before Paul’s death.134 239 I make the following observations having read and considered that material (which together spans about two hundred pages): • Paul and Cate corresponded on a range of topics from the trivial or mundane (used cars, call centres and spinach pies), the professional (Cate’s study and work) and the personal (the birth and development of Cate’s son Raj, her personal finances and the state of Paul’s health), to the esoteric, political and philosophical (discussions of spiritual tourism, same sex marriage legislation and competing theories of reality); • the content of the emails confirms that Paul had a wide and not necessarily predictable range of interests and views on a range of topics; and • the tone and content of the correspondence reflects a close albeit difficult to categorise friendship. Paul assisted Cate financially from time to time over the years. Cate’s communications showed an interest in and concern for Paul’s health over time. 240 The bundle of correspondence included exchanges in late 2020 which demonstrate that, at that time, Paul had the capacity to read and absorb relatively 131 Council rates notice 2020-2021 (Exhibit R1), SA Water notice with handwritten annotations (Exhibit R2), Commonwealth Bank Statement (Mastercard) of Paul Macdonald for period 11 December 2020 – 12 January 2021 (Exhibit R4), Commonwealth Bank Statement (Streamline Basic) of Catherine Rogers for period 13 December 2020 – 12 March 2021 (Exhibit R6), Overdue rates notice from City of Norwood, Payneham and St Peters dated 9 March 2021 (Exhibit A6), Commonwealth Bank Statement of Catherine Rogers for period 1 January 2021 to 30 June 2021 (Exhibit R12), Photograph of Transaction Listing (Mastercard) of Paul Macdonald showing transactions in February 2021 (Exhibit R66). 132 Exhibit R30. 133 Exhibit R31. 134 Exhibit R32. -- 55 of 192 -- [2026] SASC 115 B Doyle J 54 sophisticated legal and academic documents and provide meaningful commentary or feedback about them. It also stands to reason that Cate would not have sought his input in relation to the documents if she did not regard him at that time as having had the capacity to engage in analytical thought. I regard this material, together with observations of the way Paul engaged at Christmas in 2020, and his communications with others in January and early February 2021 (referred to below) as contraindicative of any marked decline in cognitive function prior to his acute sickness. 241 Around the same time Cate and Paul were exchanging these emails, their text messages touched on Paul’s health. Paul was able to make light of otherwise embarrassing issues relating to his bowel movements in his text exchanges with Cate. These messages were interspersed with Paul expressing concern about Cate and Raj. Raj was having some health and other issues around that time. Many of the messages express love and affection. They referred to each other as ‘dear friend’, ‘beautiful friend’ and ‘the best friend I could ever have had’. Text message exchanges shortly prior to Paul’s admission to the RAH 242 Although Dr Liew was not called, some text messages exchanged between Paul and Dr Liew in the period between 24 January 2021 and his admission were tendered.135 It is apparent that Paul visited Dr Liew during this period and some of their communications are difficult to follow without the context provided by what was discussed between them, but it may be observed that not only are Paul’s messages lucid, some of them manifest a degree of thought and problem solving in relation to his diet and general health. Texts exchanged between Lynn and Paul around the same time confirm that impression.136 Paul’s sense of humour is also evident from the messages. 243 The following series of messages is illustrative (Dr Liew’s messages to the left, Paul’s to the right): 135 Exhibit R33. 136 Exhibits A16, A22 and R34. [26 January 2021] Hi, Alex. Home again. Feeling better: more clarity, less tension, stronger. Thank you for the treatment. Will be taking things easy. See you next week. Paul Great see you next week -- 56 of 192 -- [2026] SASC 115 B Doyle J 55 244 Shortly after these messages, on 29 January 2021, in response to a query from Lynn about how he was going, Paul texted: [29 January 2021] Resting quietly. My Chinese friend’s verdict was that there is a blockage in my abdomen causing the gurgling in my stomach and bowels, as well as the bodily weakness. And yes, this can be traced back to the previous medication’s attack on my mucous system. I think acupuncture, herbs and diet are helping. To be a bit crude, I think the massive farting this afternoon was my body’s way of expelling the blockage and restoring balance. It will take time, though, before things can be ‘normalised’. How are you? And how are things? 245 The following day, in response to Lynn’s urging that he start the process of organising aged care which, she observed, ‘takes months’, Paul texted: [30 January 2021] Yes, it does. But things are currently improving. And I have an objection to strangers messing about with my private life. 246 Over the following days, Paul and Dr Liew exchanged further messages: [31 January 2021] Hi Alex. Sorry to bother you but the grumbling, groaning, discomfort and pain are still there. Is there anything I can do before we meet again? Thanks. Paul Paul, savoury food slightly with little salt, a few grains, will help the gut to work downwards. No fruits or salads but cooked vegetables. If have ginger, add a few streaks. Try it and advise. Thanks Alex No sweet foods if avoidable. -- 57 of 192 -- [2026] SASC 115 B Doyle J 56 I’ll try it. Thanks. Paul. [1 February 2021] Hi Alex. Following your advice regarding food. Still grumbling etc, especially at night, as has been the case for the last few weeks. Hence a tendency to lie awake at night and sleep more during the day! A problem with eating is that my body cuts off after a relatively small amount of food and refuses to take any more for a while. Reduces energy. Paul, maybe you could go to the local gp to obtain prescription for Buscopan injection vials n tablets. You may give yourself the injection now and then. Would you be able to come to the clinic tomorrow say 10.30am? If so I will organise the uber rides. Alex OK for clinic tomorrow at 10.30 am Will need Uber rides. See you then. Thanks. Paul 247 It is apparent Paul visited Dr Liew as planned and, in the evening following that appointment (on 2 February 2021), in the course of a further exchange, Paul texted: [2 February 2021] The ‘eat little’ theme echoes with me, and I have been employing it. Too much causes more problems. Dinner was tasty (tuna and veg) and not too much. No problems so far. I do not want to go into hospital and will eat, sleep and take medicine to prevent that. 248 Text messages exchanged between Cate and her sister-in-law Jo Rogers on that day show that Cate was arranging for her to deliver some birthday gifts to Paul the following day.137 Paul was not home when Jo arrived on 3 February. She exchanged the following messages with Cate (Jo to the left, Cate to the right): 137 Exhibit R35. -- 58 of 192 -- [2026] SASC 115 B Doyle J 57 [3 February 2021] Just delivered chook. Your hamper is there as well. I knocked but no answer. He has not responded to any of my calls or txts. I’m a bit worried actually. Can you have a look around. You can’t get around the back and I can’t see inside everything is closed. Looks like he hasn’t driven for a while 249 On 4 February 2021, Cate exchanged messages with her sister Jennifer.138 Cate conveyed that she was unsure what to do about Paul and whether she should fly down to Adelaide. Cate reported that a social worker had been in to talk to Paul about palliative care. Jennifer asked about Paul’s family. Cate said that Paul did not seem to want ‘any interference’. She also noted that Lynn was managing the palliative care of her dying husband and ‘so he may be trying not to involve her’. The information about Lynn must have come from Paul. 250 A text message sent by Cate from Paul’s phone to Dr Liew on Saturday 6 February 2021 read: [6 February 2021] Hi Alex, this is Cate. Paul is in the RAH. He came in by ambulance on Wednesday. He asked me to write to tell you he is comfortable. Cate for Paul 251 The request by Paul that Cate send that message suggests Paul remained capable of thinking about more than his immediate needs. Text message and email exchanges involving between Cate and the applicants 252 Screenshots of text messages between Cate and Lynn,139 between Cate and Maurice,140 between Cate, Lynn and Maurice141 and between Lynn and Maurice142 were tendered. Where relevant to the chronology of events, I refer to these later in Part E. 138 Exhibit R36. 139 Exhibit R39. 140 Exhibits R45 and R46. 141 Exhibit R43. 142 Exhibit R37. -- 59 of 192 -- [2026] SASC 115 B Doyle J 58 253 I make the following more general observations having regard to the messages between Lynn and Maurice: • they were both dissatisfied with the way Paul was informed that he would soon die, and with other aspects of Paul’s care at the RAH. This view seems to have been reinforced by dissatisfaction expressed by one of Lynn’s daughters about the care Paul was receiving; • from around 10 February 2021, their communications suggest they were becoming cynical or critical of Cate; and • by 14 February 2021, Lynn was describing Cate as a ‘gold digger’. 254 I make the following general observations having regard to the messages involving Cate: • the messages between Cate and Lynn from 6 February to around 10 February 2021 were expressed in kind and respectful language. So were the messages exchanged between the three of them; and • by 14 February 2021 the text messages show that relations had deteriorated, and some of the messages exchanged after that time exhibit outright hostility. Text messages and email correspondence sent by Ms Ikon 255 Cate and Ms Ikon exchanged numerous messages from 7 February 2021 onwards.143 Generally speaking, in the period up to and shortly after Paul’s death, they were courteous and kind. Some of the messages relating to the period up to and shortly after the date the will was made are of forensic significance. 256 Reference was earlier made to the email that Ms Ikon sent to Ms Benge on 9 February 2021. This was the subject of discussion between Ms Ikon and Cate in the following messages sent on the afternoon of that day (Ms Ikon to the left and Cate to the right): [9 February 2021] Hi Sophie. Are you able to arrange a lawyer to do Pauls will? Pramilla is trying to ring someone now but doesn’t seem to know what she’s doing! Ok I haven’t hard back from her so I’ll send her an email Would you like me to CD you in? If so what’s your email address? thank you. [email protected] 143 Exhibits R41 and R42. -- 60 of 192 -- [2026] SASC 115 B Doyle J 59 Pramilla had a lunch break and is just now ringing around after I paged her - which is rather unhelpful given Paul does not have much time. We unfortunately do not know how rapidly Paul will deteriorate. I feel for him. I wish he had this in place months ago. I hope he has his final wishes come through. Have sent Donna an email. Hopefully she can provide urgent assistance Oh thank you Sophie. Donna can discuss with him tomorrow and meet Thursday to sign 257 In messages sent on 18 February 2021, Cate made reference to difficulties she was having with Lynn. By 19 February 2021, Ms Ikon expressed the concern that things might end up going down a legal path. From time to time thereafter, Cate relayed to Ms Ikon details of the dispute between Cate and Lynn. Ms Ikon began to express her discomfort about the situation and her desire not to be involved. After a time, as 2021 progressed, it was clear that Cate perceived Ms Ikon to have been taking the side of Lynn and Maurice and to be wrongly suspecting Cate of misconduct with respect to Paul’s house and estate generally. By early 2023, Ms Ikon was challenging Cate’s statement that she and Paul had, at one time, been romantically involved. Photographs and videos 258 Various photographs were tendered, including (but not limited to): • two photographs of Cate’s son Raj at hospital in the early afternoon on 6 February 2021;144 • a bundle of photographs of Paul with Raj;145 • photographs showing Paul with Lynn, Maurice and others at Christmas time;146 • a bundle of photographs of the deceased’s wallet including cash, and keys, taken at the RAH;147 and • various bundles of photographs and videos depicting the deceased’s property at various times.148 259 It is fair to say that the deceased’s home was cluttered to an extent that would shock most people and that, in consequence, or as well, it was in a filthy state. It was common ground that Paul had been engaging in hoarding for a prolonged 144 Exhibit R5. 145 Exhibit R62. 146 Exhibit R63. 147 Exhibit R13. 148 Exhibits R49 - R59. -- 61 of 192 -- [2026] SASC 115 B Doyle J 60 period. However, the state of the home suggests more than laziness or abandon. There are signs of an obsessive, or at least a very habitual, character. By way of illustration, the kitchen contained several boxes of empty ‘Up & Go’ drink cartons. Located in several places throughout the home were bundles of $50 notes. The deceased appeared to have been accustomed to buying certain products in bulk. Numbers of unopened jars of ‘Marmite’, bottles of ‘Frank’s Red Hot’ sauce and Robert Timms instant coffee, were found. 260 The kitchen sink was inaccessible for all the clutter. It appears the deceased was using the laundry sink to wash plates and cups. Whilst some areas of the house appear to be in a state of disarray, other areas, such as a cabinet containing glassware and saucers, appear reasonably neat and tidy. 261 The deceased’s home contained a vast number of books, suggesting a wide and eclectic range of interests. 262 There were tubs found with urine and faeces. Unusual as the practice may seem, I accept the evidence of Cate that she and Paul had discussed and he had adopted a composting system of toileting and that this is not indicative of a pre- existing mental illness or serious cognitive impairment.149 Recorded conversations 263 Cate made some recordings of parts of conversations with Paul at the RAH. Ultimately, the parties jointly invited the Court to receive the recordings into evidence, with the applicants submitting that, to the extent necessary, I should make an order authorising their tender pursuant to s 11 of the Surveillance Devices Act 2016 (SA) (‘SDA’). I have determined to receive the recordings and to make an order, to the extent necessary, authorising that course. My reasons for that approach follow. Basis for receipt of recordings 264 Section 4(1) of the SDA prohibits a person from, inter alia, knowingly using a listening device to record a private conversation to which the person is a party. The respondent contended that the recordings were not made in contravention of s 4(1) because the parties to each recorded conversation knew that a recording was being made and consented (either explicitly or implicitly) to that course. It follows that the recorded conversations were not ‘private conversations’ within the meaning of the SDA150 and fell outside the ambit of the s 4(1) prohibition.151 149 Cate, [51]. See also Tr 467.12-29. 150 Section 3 of the SDA defines ‘private conversation’ as meaning ‘a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation’. 151 Tr 941.24-28. -- 62 of 192 -- [2026] SASC 115 B Doyle J 61 265 Cate’s evidence was that she informed Paul that she was recording their conversations.152 In two of the recordings, Cate expressly referred to the fact that she was recording.153 On other occasions, the recorded conversation begins with Cate asking Paul to repeat something that he had said just prior to the commencement of the recording.154 266 The respondent’s argument in support of admissibility would invite a further question as to whether at the time of each conversation, the deceased was unaffected by impaired attention or confusion so as to be able to consent to the recording. 267 It is unnecessary to pursue these questions because the applicants submitted (and the respondent did not contend to the contrary) that I could find that the recordings were made in circumstances falling within either (or both) ss 9 and 10 of the SDA, and make an order pursuant to s 11 authorising the use of the material derived from the recordings in this proceeding. 268 Sections 9 and 10 relevantly provide as follows: 9 – Communication or publication of information or material – lawful interest (1) A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of that person except – (a) to a person who was a party to the conversation or activity to which the information or material relates; or (b) with the consent of each party to the conversation or activity to which the information or material relates; or (c) to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or (d) in the course, or for the purposes, of a relevant action or proceedings; or (e) in relation to a situation where – (i) a person is being subjected to violence; or (ii) there is an imminent threat of violence to a person; or 152 Cate, [273]. That paragraph was not admitted as evidence in the trial (because it related only to this question which had not been determined). 153 Exhibit A19, ‘11. House-peeing-syd selva’: ‘We were just chatting here and I’m just recording’, ‘31. Palliative care’: ‘So, we were just saying about palliative care and what did you say that I said I wanted to record?’ 154 See, eg, Exhibit A19, ‘04. Phone messages’: ‘Sorry, what was that you were saying?’, ‘05. Alex treatment’: ‘Um, sorry you were saying?’, ‘12. Nail clippers-books’: ‘Sorry, what was that you just said? What worries you apart from your books?’, ‘15. Mothers jewellery-cash’: ‘Sorry, you’re just saying about your mother’s jewellery’. -- 63 of 192 -- [2026] SASC 115 B Doyle J 62 (f) to a media organisation; or (g) in accordance with an order of a judge under this Division; or (h) otherwise in the course of duty or as required or authorised by law. … 10 – Communication or publication of information or material – public interest (1) A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of a judge under this Division. … (2) Subsection (1) does not apply to the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest if – (a) the use, communication or publication of the information or material is made to a media organisation; or (b) the use, communication or publication of the information or material is made by a media organisation and the information or material is in the public interest. 269 The term ‘lawful interests’ does not call for a legal interest in the sense of a legal right, title, duty or liability, but denotes interests which are not unlawful and are akin to legitimate interests.155 The recorded conversations capture Paul talking about his estate in circumstances where it was on the cards that this would affect Cate’s interests and responsibilities. It may be accepted that an individual who expects to benefit under a will has a legitimate interest in seeing that they receive what is due to them. Insofar as the recorded conversations documented (or perhaps were reasonably anticipated to address) Paul’s intentions, the recordings could be said to have been made by Cate for the purpose of protecting her lawful interests. 270 The term ‘public interest’ has no fixed definition or meaning and is instead shaped by its statutory context.156 A discretionary evaluative judgment must be made by reference to undefined factual matters, confined only by the scope and purpose of the legislation.157 It will often require consideration of a number of competing features about the public interest.158 In the context of the SDA, this requires a balancing of the protective purpose served by the general prohibition on 155 Potter (A Pseudonym) v The King [2026] HCA 25 at [49] (Gageler CJ, Gordon, Steward, Jagot and Beech-Jones JJ), referring to Violi v Berrivale Orchards Ltd (2000) 99 FCR 580 at [28] (Branson J). 156 In the matter of Greyhound Racing SA Ltd [2023] SASC 63 at [26] (Stein J), R v Kolaj [2026] SADC 9 at [421] (Handshin DCJ). 157 O’Sullivan v Farrer (1989) 168 CLR 210 at [13] (Mason CJ, Brennan, Dawson and Gaudron JJ). 158 In the matter of Hyde [2023] SASC 146 at [53] (Kimber J), In the matter of Greyhound Racing SA Ltd [2023] SASC 63 at [27] (Stein J), referring to Osland v Secretary of the Department of Justice (2008) 234 CLR 275 at [137] (Hayne J). -- 64 of 192 -- [2026] SASC 115 B Doyle J 63 the use of listening devices against the circumstances in which, and purpose for which, the device was used by Cate. 271 The applicants contend that there is a public interest in a proceeding for a grant of probate that goes beyond the private interests of the parties to these proceedings.159 I accept that proposition. Probate proceedings seek to ascertain, and give effect to, the testamentary intentions of a deceased person in relation to the distribution of their estate.160 There is a clear public interest in ensuring the probity, order and reliability of succession to property.161 Assertions about things said by the testator in private are easy to make and often difficult to refute,162 so that objective evidence is usually important. 272 Whilst, so far as questions of public interest are concerned, there is a difference between the use of a device to record a conversation, and the use of such material where it may inform the Court’s resolution of a probate matter, the two are related. Here both parties support the Court having resort to the material and I am satisfied that in all the circumstances the use of the device to make the recordings was in the public interest. 273 I am satisfied an order should be made pursuant to s 11 facilitating the reception of the material, with the consequence that its tender will not involve a contravention of ss 9, 10 or 12. Significance of recordings 274 As later explained, the recordings may be seen as cutting both ways on the question of cognitive impairment. They provide some vivid illustrations of the deceased’s confusion, but they also show his capacity for lucid and reflective discussion. I make some more specific references to the recorded conversations in Part E. 159 Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [8] (Ward JA), [49] (Simpson JA). 160 Re Estate Capelin (deceased) (2022) 107 NSWLR 461 at [39] (Lindsay J), Re Estate Barzacca [2025] NSWSC 1252 at [172] (Lindsay J). 161 Fuda v Dawes [2026] NSWSC 360 at [21] (Bennett J), referring to Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [60] (Lindsay J). 162 cf. Groom v Police [2015] SASC 101 at [45] (Nicholson J). -- 65 of 192 -- [2026] SASC 115 B Doyle J 64 E PRIMARY FINDINGS 275 In this part I set out the findings I have made about matters of context and history, before turning to a chronology of the main events of significance relevant to Paul’s conduct and interactions in the period between his admission to the RAH on 3 February 2021 and his death at the QEH on 18 February 2021. 276 Unless otherwise stated, what follows comprise factual findings which are either not seriously in dispute or which I consider can be readily made on the basis of the evidence. 277 Where there was a substantial conflict, I set out the competing accounts before indicating the findings I have made (or indicating where it has not been possible to make a positive finding). The deceased’s background 278 The deceased was born on 3 February 1951 in South Africa. His parents, James Macdonald and Victoria Aladjem, predeceased him. He had no siblings. 279 The deceased moved to Australia with his parents in 1954. This move was sponsored by Lynn and Maurice’s father, Victor (Victoria’s sister). Initially Paul’s family lived with Lynn and Maurice’s family in Hindmarsh until Paul’s family home in Firle was built. Paul later inherited the Firle property, and this was his home when he died. His long-term neighbour was Ms Sofie Ikon. 280 However, for a period during the 1980s, Paul moved to Canberra where he worked as a public servant. He had previously been employed at Gilles Plains High School. Paul’s mother died in 1984 and his father died in about 1991. According to Lynn, he did not show much emotion about these events.163 281 Lynn was not aware of Paul ever having girlfriends.164 Maurice gave similar evidence.165 Whilst I accept that evidence, it says more about Paul’s private nature and, perhaps, his sometimes socially awkward nature, than it does about Paul’s sexual orientation. The deceased’s physical health 282 Paul experienced depression. For a time he took anti-depressants, but decided to stop taking them in around 2016. Whilst I accept that a person may suffer from chronic depression without this being obvious to others, given that, notwithstanding he was relatively diligent in seeing his general practitioner, he did not seek out psychological or psychiatric assistance, I find that in the years between 2016 and his death, the deceased suffered from mild rather than acute or chronic depression. 163 Lynn, [43]-[44]. 164 Lynn, [32]. 165 Maurice, [34]. -- 66 of 192 -- [2026] SASC 115 B Doyle J 65 283 Paul was diagnosed with hypertension, hypercholesterolaemia and type 2 diabetes. He also suffered from obstructive sleep apnoea, but that appears to have resolved by around 2017. 284 After being diagnosed with colorectal cancer in 2016, he underwent a laparoscopic assisted right hemicolectomy and a right hemihepatectomy and cholecystectomy. In 2017 he underwent adjuvant chemotherapy. After a follow- up colonoscopy in 2018, he remained on oral chemotherapy, but the disease progressed. He suffered peripheral neuropathy. 285 Whilst there is one reference in the medical notes (deriving from a multidisciplinary meeting in 2016) which may suggest excessive consumption of alcohol,166 there is a greater number of references suggesting otherwise.167 There is reference in the lay evidence to Paul drinking at various times throughout his life. Whilst that may be accepted, and whilst it might be that for a period in 2016 the deceased gave an answer which was assessed as reflecting more alcohol consumption than was recommended, I do not find that Paul had any longstanding pattern of alcohol misuse. 286 As has been mentioned, Paul also saw a doctor who practised Chinese medicine. Paul’s interest in Chinese medicine does not appear to have been to the exclusion of his modern and more orthodox medicine. He maintained contact with his GP and oncologist. 287 It is apparent that in the weeks immediately preceding his admission to hospital he became more frail and weak, and was increasingly dependent on the help of others. For instance, he asked Dr Liew to arrange Uber rides so that he could visit him and he asked Ms Ikon for help collecting a prescription. The deceased’s relationships Relationship with Cate 288 Cate met Paul in the 1990s when they were both studying at TAFE and became friends working on a project together. Paul told Cate about his childhood, his schooling and how some experiences during that part of his life had shaped his outlook on various things.168 They bonded over their shared interest in academia and art.169 Cate had an understanding of Paul’s employment and financial situation; she was aware that he had received benefits including by reason of his depression and sleep apnoea.170 289 During the period of their study to the late 1990s, Cate would often spend time at Paul’s late at night and stay over, leaving for work from his house the next 166 Exhibit R23, p 1599. 167 Exhibit R23, pp 1531, 1539, 1662; Exhibit R22, p 908. 168 Cate, [7]-[16], [20]. 169 Cate, [17]-[19]. 170 Cate, [21]. -- 67 of 192 -- [2026] SASC 115 B Doyle J 66 morning.171 Over this period, Cate was living in rental properties and on occasion Paul attended parties at her place.172 290 According to Cate, for about twelve months in 1999, their relationship was romantic. It ended when Cate became attracted to another man (Winfried Hoerr) and commenced a relationship with him. Despite this, they remained close and would speak or see each other almost daily. Paul took over the care of a dog (‘Kiri’) that Cate had bought from the RSPCA. Between them they shared Kiri’s care until her death in approximately 2013 or 2014.173 Cate’s evidence was that the romantic relationship recommenced for a period during 2004, when they were working together intensively as Cate completed her Honours degree in Education at Flinders University.174 291 Cate moved to Queensland in 2007 because she was not happy with her PhD research project at Flinders University and there was a supervisor with whom she wanted to work in Rockhampton. They stayed in contact by text message, telephone and email during this period, communicating at least weekly.175 292 In around 2008, Cate and Winfried purchased land in an eco-village in Queensland. According to Cate, they and Paul all shared a passion for ecology and sustainability and Paul collected and recycled old bottles and moved to a composting toilet system (as she had done). He thought about, but ultimately decided against, moving to Queensland.176 293 Cate travelled to India for about 18 months from late 2008 and returned pregnant with her son Raj in early 2010. She moved back to Adelaide for support, and she and Paul maintained a close friendship during that period. Cate says they discussed the possibility of living together and re-commencing their romantic relationship but decided against it. After several months, Cate was persuaded to move back to the eco-village in Gin Gin, Queensland, where she recommenced a romantic relationship with Winfried. Cate says this upset Paul greatly and for a period of some years they had little to no contact.177 294 Cate’s evidence is that in 2016, she returned to Adelaide to care for her father. She lived at Netherby. Soon after returning she visited Paul’s house in Firle, nervous he would still resent her. They reconnected immediately. Paul informed her he had been diagnosed with cancer and had just been discharged from the RAH. They talked and rekindled their friendship. Paul became close with Raj, and Paul 171 Cate, [24]. 172 Cate, [25]. 173 Cate, [26]-[37]. 174 Cate, [40]-[47]. 175 Cate, [48]-[49] 176 Cate, [51]. Cate said in cross-examination that she had discussions with Paul about using composting toilets to reduce the amount of water used in a flushing toilet: Tr 467.12-29. 177 Cate, [52]-[60]. -- 68 of 192 -- [2026] SASC 115 B Doyle J 67 would visit them both at the Netherby property. Paul spent time with Cate’s sister Jenny and her parents as well.178 295 In 2017, Cate volunteered at a café in Beulah Park every Friday. Paul would visit. They often had lunch after her shift finished at Caffe Buongiorno in Norwood. Cate was struggling financially and Paul provided her and Raj with financial support during this time, paying the Council rates on her Gin Gin property, and purchasing a small portfolio of shares together. Paul assisted financially in other ways and bought Raj presents.179 296 Cate says that in 2018, when Cate was struggling financially, they discussed living together and Paul at one point asked her to marry him (though they were not at that stage in a romantic relationship). However, they ultimately decided against this for various reasons.180 297 Cate observed that Paul made withdrawals of cash, being in receipt of various benefits, and that he preferred to transact by way of cash, citing privacy concerns. He became increasingly anxious about privacy with the explosion of the internet and the sharing and purchase of data. He kept cash in various places around the house, including in books.181 298 When Cate could not find rental accommodation in Adelaide, she returned for about six months to her property in Gin Gin. They stayed in touch during this period. Cate returned in late 2018. She was in receipt of Centrelink benefits and was struggling financially. Paul assisted her from time to time. She lived with Raj in a property at Kingswood. There she remained until returning to Gin Gin in July 2020. Her decision to return was related to COVID-19. Cate says the decision to return was difficult knowing that Paul had a terminal illness, but that he insisted they return as she and Raj would have a better lifestyle there during pandemic. It was a ‘heartbreaking and painful separation’.182 299 Cate and Paul continued to speak and correspond in late 2020 and into early 2021, prior to Paul’s admission to hospital. I referred earlier to the email correspondence in late 2020 in which Paul assisted Cate with legal and academic documents. They also exchanged text messages in which Paul inquired as to the progress of Cate’s legal dispute and Paul also offered advice in relation to Cate’s son Raj. 300 Whilst it is possible, indeed likely, that some aspects of Cate’s recitation of the relationship of her history with Paul are inaccurate due to the effluxion of time and the effect that emotion can have on perception and recollection, I am satisfied that they had a relationship along the lines she described. First, I generally found 178 Cate, [62]-[75]. 179 Cate, [76]-[85]. 180 Cate, [87]-[89]. 181 Cate, [90]-[93]. 182 Cate, [94]-[106]. -- 69 of 192 -- [2026] SASC 115 B Doyle J 68 her to be a witness of credit. Secondly, the evidence was detailed and had the ring of truth about it. Thirdly, it was corroborated to an extent by the evidence of Jennifer Rogers, who I accept as a credible witness. Fourthly, it was consistent with Paul having said something to Ms Cortazzo consistent with having wished for a more than platonic lasting relationship with Cate.183 Fifthly, the objective records of their communications is consistent with a high degree of affection and a lengthy shared history. The audio recordings of conversations between Paul and Cate at the RAH are also suggestive of a longstanding affectionate relationship. Indeed, Lynn accepted she may have said to Ms Cortazzo that based on what she had seen of their interactions at hospital, Paul appeared to be besotted by Cate.184 As will be recounted later, in text messages sent on 8 February 2021, Lynn observed that Paul was looking forward to seeing Cate, and Maurice observed that Cate seemed to ‘lift his spirits’.185 301 There was some evidence adduced by the applicants which was potentially suggestive of Paul having had homosexual experiences in earlier years. The evidence was indirect and, in any event, it is by no means inconsistent with having had a long-standing friendship with a woman which was, for some periods, more than platonic. I am also not troubled by the fact that Mr Cramond did not recall knowing about Cate or Paul’s relationship with her, nor that Lynn and Maurice were unaware of her. It is clear on all the evidence that the deceased was very private, in quite idiosyncratic ways. He did not host gatherings at his own residence. His life was, to an extent, compartmentalised. Lynn’s evidence also suggested Paul was not demonstrative or affectionate, and she never saw him hug his own mother.186 Relationship with Lynn 302 As has been mentioned, Paul spent time with Lynn and Maurice during their childhood. 303 After Paul returned to Adelaide in late 1984, Lynn and her husband would host Paul and his father for dinner.187 Paul was godfather to Lynn’s two daughters, Natasha and Nicole. Lynn’s evidence was that Paul had a close relationship with them both.188 304 The frequency of visits reduced as Lynn’s mother’s health declined in the late 1980s and Lynn had to care for her.189 Nicole moved to Melbourne in early 1996 and Natsha moved out of home in 2000 when she became a medical intern. 183 Cortazzo, [30]. 184 Tr 914.18-33 185 Exhibit R43. 186 Lynn, [27]. 187 Lynn, [47]. 188 Lynn, [16]-[17]. 189 Lynn, [49]-[50]. -- 70 of 192 -- [2026] SASC 115 B Doyle J 69 When Paul visited Lynn after this time he was interested to hear what they were up to.190 305 After Paul’s father died in 1991, Lynn would drop food to Paul’s house.191 From around this time, the house began to become a mess. Paul declined offers to help clean it.192 He declined to allow Lynn to enter the house from around 1994.193 Throughout the 1990s and 2000s, Paul continued to come for dinner at Lynn’s from time to time.194 306 After Paul’s cancer diagnosis in 2014, Lynn’s husband George sometimes took Paul to and from his chemotherapy sessions.195 Paul would come for dinner every couple of months.196 After Paul had a partial hepatectomy in 2016, George tried to arrange a social worker to assist Paul with his hoarding but he resisted, saying he did not like strangers messing about with his private life.197 307 During COVID-19, Lynn (as well as Ms Ikon) helped with Paul’s shopping and dropped meals around, but Lynn’s capacity to help from 2020 was compromised due to her husband’s reduced mobility and health.198 Lynn saw Paul at Christmas 2020 and said that whilst he engaged in argumentative discussions with the family, he was not as sharp as previously.199 Relationship with Maurice 308 Once at University, Paul and Maurice saw each other less frequently.200 On occasion, before he moved to Canberra, Paul confided in Maurice about some of his schooling experiences.201 Maurice considered that at dinners Paul would be prepared to share more intimate and personal details with him about his life.202 309 Maurice was an art educator and artist. Paul did not express any interest in his exhibitions.203 For significant periods, Maurice and Louise were not living in the same city as Paul. Maurice moved to Canberra in 1976, and after he married Louise, they moved to Darwin in 1985.204 They moved to Alice Springs in around 1996 before moving back to Adelaide in about 2010.205 190 Lynn, [53]-[55]. 191 Lynn, [61]. 192 Lynn, [62]-[63]. 193 Lynn, [65]. 194 Lynn, [70]. 195 Lynn, [79]. 196 Lynn, [82]. 197 Lynn, [89]-[90]. 198 Lynn, [105]. 199 Lynn, [111]. 200 Maurice-1, [16]. 201 Maurice-1, [24], [26]. 202 Maurice-1, [30]-[32], [41]. 203 Maurice-1, [36], [40]. 204 Maurice-1, [43]-[44], [58]. 205 Maurice-1, [77]. -- 71 of 192 -- [2026] SASC 115 B Doyle J 70 310 After Paul’s father died in 1991, Maurice found Paul to be reclusive and would not allow people into his home.206 Maurice and Louise were living in Whyalla at that time. When they would sometimes visit Paul (when back in Adelaide), they would have coffee or afternoon tea outside.207 311 When Maurice and Louise returned to Adelaide in early 2010, Paul declined the suggestion that they stay with him for a while. He did not allow them into the house. They would sometimes see each other for coffee at Lynn’s, and would catch up at Christmas time. Maurice recalled being told about Paul’s cancer in 2017. Paul blamed some forgetfulness on the chemotherapy he was having.208 Maurice saw less of Paul after about 2016/2017.209 312 Maurice and Louise were not able to help with appointments or drop food to Paul because they lived in the northern suburbs.210 They continued to see each other at Christmas time and on other occasions. Maurice thought Paul was jaundiced and frail at Christmas in 2020, but he was ‘nevertheless cheerful and ate and drank well’.211 Summary 313 Paul maintained a life long relationship with each of his cousins. Plainly, they both showed real care and affection towards him and had his best interests (as they perceived them) at heart. They were his closest relatives after his parents died. Whilst Paul was social and engaging in particular contexts, he remained private in other respects. There was a limit to how much of his life Paul shared. 314 I find that, at least after childhood, Paul’s relationship with Lynn was closer than was his relationship with Maurice. Paul’s connection with Lynn’s children, of whom he was godfather, probably strengthened or sustained his connection with Lynn. Due to the demands of caring for her husband George, Lynn was not able to spend as much time with Paul in the last months of Paul’s life as she would otherwise have done. Maurice lived away from Adelaide for 32 of the last 48 years of Paul’s life and, on Maurice’s evidence, Paul was not someone who enjoyed telephone conversations.212 In more recent years, Maurice’s location in the northern suburbs also made it harder for them to catch up. They did not see a lot of each other.213 Obviously, these observations are not intended as criticisms of Maurice. 315 Paul had a long term and close relationship with Cate. I accept that for (relatively) brief periods it had a romantic nature. There were other periods where 206 Maurice-1, [67]. 207 Maurice-1, [73]. 208 Maurice-1, [81]-[97]. 209 Tr 605.5. 210 Maurice-1, [98]. 211 Maurice-1, [110]. 212 Maruice-1, [13]. 213 Tr 606.2-4. -- 72 of 192 -- [2026] SASC 115 B Doyle J 71 they fell out of frequent contact. In more recent years their relationship was characterised by mutual affection, shared interests and kindness: Paul was generous to Cate both financially and in the assistance he gave her with academic and other pursuits; Cate was concerned about Paul’s health and wellbeing and her care for him was evidently a great support to him in the weeks and months prior to his admission to hospital. The difficulty in characterising the relationship does not detract from its importance. The deceased’s interactions with friends and family around Christmas 2020 316 As has been noted, the evidence of Lynn and Maurice is at least consistent with Paul retaining the capacity to engage in a meaningful way when they saw each other on Christmas day in 2020. 317 Paul’s text messages with Cate prior to and on Christmas day are indicative of someone whose cognitive function was not limited to reactive interactions, or interactions relating to his immediate perceptions or needs. They reflect, or at least suggest, that he retained the capacity to: • engage in problem-solving – for instance, over and above the interest he showed in assisting Cate with a legal issue, in response to her indicating on 20 December 2020 that she was struggling and feeling rather depressed, he recommended that she focus on sleep and inquired whether she was seeking professional help. Further, when Cate explained that Raj was missing his friends whilst he and Cate were away from Gin Gin, Paul asked ‘Could you invite a friend for a sleepover, or would that be hideously difficult?’; • engage in abstract and philosophical thought – for instance, in response to Cate commenting on how the experience of Christmas differs between children and adults, Paul commented ‘Christmas has become an amalgamation of various traditions, integrated and dominated by capitalism. Not spending or buying? Then not only is one a skinflint, but possibly also a socialist who wants to wreck the economy. Smaller is better, with love’; and • think about the needs or difficulties of others – for instance, when discussing the planned Christmas gathering, Paul told Cate that ‘Lynn is having a very small and very short gathering, with the possibility that George might be home for a couple of hours. We all try to grab moments of joy out [of] times of sadness’ and, reporting afterwards on Christmas lunch, Paul said ‘Lunch was lovely and lively. George (I think) was looking happy to be home for Christmas, but had to go back to the nursing home at the end of the day. He’s at the Southern Cross home at Fullarton, apparently well treated’. 318 In the course of text messages between Paul and Cate throughout December 2020 and into late January 2021, Paul frequently deployed humour (as well as conveying affection). In response to a message from Cate on 29 January 2021 remarking that Paul’s earlier message was very funny, Paul responded ‘Thank you, -- 73 of 192 -- [2026] SASC 115 B Doyle J 72 thank you. I’ll be here all week’. Allowing as I do for the fact that text messaging allows more time for reflection and gathering of thoughts than does ordinary conversation, the number and nature of the messages is contraindicative of Paul suffering, in the period from December 2020 to January 2021, from a significant cognitive impairment. 319 Paul’s messages with Dr Liew (extracted earlier) tend towards the same conclusion. They reflect that Paul was reflecting on his health and steps he might be able to take to avoid deteriorating and having to go to hospital. 320 Ms Ikon had an interaction with Paul on 2 February 2021 when he asked her to go the chemist for him after she had checked in on him by text message; he mistakenly handed her the wrong items (meaning to hand her his pensioner card). Ms Ikon said he seemed very confused.214 Whilst I accept this evidence, I bear in mind that it was shortly before his admission to hospital by which time he was acutely physically unwell. I also bear in mind that the very fact that Paul was enlisting help to obtain medication is some indication of a continuing capacity for problem solving. The deceased’s admission to the RAH on 3 February 2021 321 At or about 7.36 am, Cate sent a text message to Paul wishing him a happy 70th birthday.215 It referred to them having been through ‘many highs and lows and [having] always come back together no matter what’. She thanked him for the support given to her and Raj over the years. She said she wished she could be there to celebrate with him. She sent an audio recording of Raj and her singing happy birthday as a message. Paul responded, texting: Thank you for those wonderful sentiments. I wish you could be here too so we could celebrate together. I’ve been having a lie-in to start a relaxing day. 322 Cate tried to call Paul later that morning, but he did not answer. Cate began to worry. She sent a message at around 11.07 am asking if he was okay, but he did not respond.216 323 She had arranged a food hamper to be delivered to his home that day and had organised a ‘Hello Fresh’ subscription the first delivery of which was to occur that day. Cate had also arranged for her sister-in-law Jo to pick up some balloons and deliver them to Paul’s house. Cate texted Paul at about 12.57 pm to tell him Jo would be arriving to drop off a gift and asking whether other gifts had arrived. Receiving no response she texted:217 Paul please respond immediately or I will be calling the Police 214 Ikon, [59]-[65]. 215 Cate, [111]. 216 Cate, [112]-[113]. 217 Cate, [114]-[118]. -- 74 of 192 -- [2026] SASC 115 B Doyle J 73 324 As earlier explained, Cate exchanged messages with Jo, who could not see anyone home. Cate then received a call from Paul.218 She told him it would be best if he rang an ambulance, to which he responded with words to the effect that, yes, he thought he should.219 Cate’s later inquiries left her unsure whether he had done so and at her suggestion paramedics attended his home and found him unwell. They conveyed him to the RAH where he was admitted, arriving just after 4.00 pm.220 He took with him some cash, various cards, keys, a black bag, various medications and some other items including a power bank.221 325 The SA Ambulance Service clinical records make note of the clutter in the home, and state that it would not be safe for him to return home. There is reference to Paul saying he felt like he was going to collapse, and being confused or delirious upon the arrival of the ambulance officers.222 326 Hospital records contain reference to a CT of Paul’s abdomen and pelvis noting extensive progressive metastatic disease in comparison with previous imaging, and identified that there would be a need for social work input.223 Dr Phillip Colwell’s impression, recorded in the Emergency Department notes, was that Paul was suffering from severe anaemia and dehydration. He was recorded as having a high lactate level secondary to hypoperfusion and his severe anaemia.224 327 Whilst in the Emergency Department, Paul received two blood transfusions and one litre of saline. Dr Diana Hancock noted that he was ‘alert and oriented to time and place’.225 It was decided to admit Paul under the Medical Oncology team, and he was transferred to the ward late that night.226 The records show Paul was admitted under the consultant Dr Sudarsha Selva Nayagam, who Paul had seen for outpatient treatment prior to his admission.227 Events of 4 February 2021 328 On the morning of 4 February 2021, Paul was seen by Dr Carene Lim (a Resident Medical Officer) and Dr Sansome as part of the Medical Oncology Ward Round. Dr Sansome made a note of the attendance at 10.19 am.228 218 Exhibit R65 suggests Cate and Paul spoke more than once in the early afternoon by phone. 219 Cate, [119]-[121]. 220 Cate, [122]-[124], Exhibit R22, p 885. 221 Exhibit R22, p 898. 222 Exhibit R22, pp 885, 908. 223 Exhibit R22, pp 918, 1083. 224 Exhibit R22, pp 908-915. 225 Exhibit R22, pp 920-937. 226 The respondent drew attention to a nursing admission note in which the answer ‘[n]o’ appeared next to the question: ‘Is the client demonstrating disorientation, wandering behaviour, memory changes or poor concentration?’: Exhibit R22, p 941. The note forms part of a lengthy pro forma questionnaire and was made just before midnight. I would not attribute great significance to this observation in the notes. 227 Takhar-1, [14]. 228 Exhibit R22, p 947. -- 75 of 192 -- [2026] SASC 115 B Doyle J 74 329 The notes record that Paul felt better following blood transfusion, that he still felt short of breath, but had improved, and that he had difficulty sleeping the previous night, which he attributed to having slept during the day at home. The findings of the CT scans were discussed. The notes record: No further treatment options, should focus on symptom management with palliative care – was accepting of this as inpatient Will think about who he would like to contact 330 Paul was also seen by Ms Khambatta, a social worker.229 It appears from the relevant note that Ms Khambatta spent some time with Paul (in the order of 110 minutes) and that part of this time overlapped with the attendance of Dr Lim and Dr Sansome (whose notes refer to ‘SW present’). Ms Khambatta’s notes state, inter alia, that: Social worker had along discussion, Paul has no family has a couple of cousins and few friends, Paul was talking to his friend and the friend felt that Paul was not coping contacted SAAS from Victoria and Paul came to the RAH. Paul lives in a three bed room house and receives aged pension. Not know to receive any supports in the community. Paul said he was not managing very well for the past few months, was not eating well, he said his house was not kept in a good condition; he said he was a teacher, a researcher and has worked in the public sector. He said he has plenty of valuable books and did not like anyone coming into his home. Social worker was discussing about my aged care and the supports he could get if he wanted, Paul said he just [wanted] his lawns and the outside of his house cleared. There was a discussion about downsizing the house and move into a retirement village, Paul was happy discussing till the [medical] team walked in and gave him some real bad news. Social worker provided supportive counselling supports, as the plan now may be placement/ home with pall care vs Hospice Legal Directives: there are no legal directives in place; social worker has left some paper work ACD and EPOA, social worker to follow up tomorrow. 331 A nursing note made at around 4.29 pm reported in respect of Paul’s cognition: ‘Alert and orientated’.230 I interpolate that one of the criticisms made of Dr Hecker’s report, and the challenges made to it in cross-examination, is that she referred to neither this attendance nor Ms Khambatta’s attendance in her report.231 332 At some point on 4 February 2021, Cate was able to speak with Paul by phone. She asked him if he wanted her to come down from Queensland to be with him. He thought about it and answered ‘yes’. Cate then made arrangements to 229 Exhibit R22, pp 956-957. 230 Exhibit R22, p 958. 231 Tr 838-839, 841. -- 76 of 192 -- [2026] SASC 115 B Doyle J 75 travel from Gin Gin (by car) to Brisbane and then to Adelaide on the morning of 6 February 2021.232 333 Paul exchanged some brief text messages with Lynn. She inquired where in the RAH he was, and he responded, providing some information and saying they would ‘talk later’.233 Events of 5 February 2021 334 Paul was seen by Dr Takhar, Dr Lim and Dr Sansome as part of the Medical Oncology Ward Round on the morning of 5 February 2021. The note includes reference to an oxygen desaturation issue that had occurred and resolved prior to the ward round. It was noted that Paul was ‘actively rigoring’ and felt unwell.234 There was further discussion of the CT scan findings, summarised in these terms: Discussed scan findings again – increase in size of liver [metastases], likely liver failure. May only have days to weeks left. ‘Discussed role of antibiotics which may not make him feel better, Paul is keen to try antibiotics 335 Dr Takhar gave evidence about this interaction, of which he maintained an independent recollection. He explained to Paul that the cancer had eroded into Paul’s bowel, and this had caused his blood loss and consequent anaemia. According to Dr Takhar there was a question about whether Paul may also have a concurrent infection. He ordered further investigations in order to determine whether that was the case and commenced Paul on a course of intravenous antibiotics in the meantime, which Paul had been keen to trial. Given Paul’s limited prognosis, Dr Takhar asked the palliative care team to consult with him in relation to his end of life care and planning.235 336 The Palliative Care Registrar, Dr Emma Brook, attended on Paul that afternoon. She did not give evidence, but the note of her attendance formed part of the medical records.236 She noted, inter alia, that: • Paul was aware of his grave prognosis having been told that morning there were no further chemotherapy or anti-cancer options, and was aware that he likely had an infection and was receiving a trial of intravenous antibiotics; • Paul had indicated he was philosophical about the fact he was approaching the end of his life, remarking ‘what can you do?’; • Paul said he had not yet thought about where he would want to be for end of life care, acknowledging that being home alone would not be an option. Dr Brook briefly outlined options for him; and 232 Cate, [126]-[128]. 233 Exhibit R34. 234 Exhibit R22, p 961. 235 Takhar-1 [15]-[22], Tr 697-699. 236 Exhibit R22, pp 964-966. -- 77 of 192 -- [2026] SASC 115 B Doyle J 76 • in respect of the topic of delirium, Paul ‘acknowledged that prior to admission he was experiencing hallucinations (seeing people in the house and hearing the telephone ring at night) – stated these issues have all resolved’. 337 Under a heading ‘Social History’, Dr Brook recorded: • On aged care pension; retired several years ago – worked previously as a teacher, a researcher, freelance editor and worked in the public sector • Enjoys reading, particularly science fiction books • No spiritual/religious beliefs • Only child; parents deceased; no children/partner 338 Under a heading ‘ACD/person responsible’, Dr Brook noted: • No ACD or will • Indicated today that he would want his cousin, Lynn to be his substitute decision maker. Also happy for his friend, Kate Rogers (lives in QLD), to be involved. 339 Dr Brook’s note refers to Paul being ‘[a]lert, sitting up in bed’, ‘[o]riented to time/place/person’ with ‘[n]o features to suggest delirium’. 340 Dr Brooks’ recommendations included ‘Ongoing social work input regarding completion of ACD, EPOA and will – note this was discussed with Paul yesterday and he has been provided with the relevant paperwork’. It was noted that there would be a further review early the following week to provide an assessment as to Paul’s suitability for hospice depending on his progress over the weekend. 341 I accept the submission that it can be inferred that Dr Brook had a reasonably detailed discussion with Paul and that Dr Brook’s notes show Paul was able to recall and relay relevant information. They further show that Paul had in mind involving Cate and Lynn in relevant decision-making before he had discussed such matters with either of them. The respondent further submits that it is implicit in Dr Brook’s recommendation that she believed Paul had capacity to provide instructions in relation to and to execute, inter alia, a will. That may be, but I indicate I proceed on a slightly lesser inference, namely, that Dr Brook saw nothing in the course of her interaction that caused her (as an experienced palliative care physician) positively to doubt Paul’s capacity to make a will. I consider it is safe to infer that had she made an observation that prompted her to experience a doubt, she would likely have made some note of it or directed further investigations be made. 342 I interpolate again that a criticism of Dr Hecker’s report was that whilst she included a reference to Lynn being nominated as a substitute decision maker, she did not include the references to orientation or contraindications of delirium. -- 78 of 192 -- [2026] SASC 115 B Doyle J 77 343 The medical records also include: • a nursing progress note made at 2.50 pm which described Paul’s cognition as ‘Alert and oriented as to time, place and person. Vague at times’;237 and • a nursing progress note made at 9.17 pm which described Paul as having been alert and oriented to person, time and place this shift, and that he ‘interacts well with staff’.238 The note made apparent that he had not been able to charge his phone and had spoken with Lynn, who was planning to visit tomorrow, by using the room phone. Again, Dr Hecker did not include reference to this note in her report. Events of 6 February 2021 344 On Saturday 6 February 2021, Cate and Raj arrived from Queensland, she and Lynn met for the first time, and the ‘note’ was prepared. 345 Earlier that morning, Dr Takhar and Dr Lim attended on Paul as part of a ward round. Dr Lim’s notes start with a thank you reference to palliative care, indicating she had read the notes of Dr Brook’s interaction. The notes of this oncology team attendance include:239 Discussed that although we are temporarily holding a possible infection at bay but we know the cancer is still progressing Paul wanted to know his prognosis – explained that it is looking like days to weeks Explained that we do not think going home is … possible as he was not coping, which is part of the reason he was admitted Paul would like to know more about hospice 346 Dr Takhar gave evidence about this interaction. He said, inter alia:240 Mr Macdonald was alert and engaged during my discussion with him. He appeared to understand the information that I provided to him and demonstrated insight regarding his condition and prognosis. He also demonstrated an ability to reason logically and coherently as it related to our discussion regarding his end of life care planning. I did not have any reason to doubt Mr Macdonald’s capacity. Although Mr Macdonald was very unwell, his condition had largely stabilised by this time following the receipt of blood transfusions and the commencement of antibiotics. 347 Several nursing notes were made in the course of the day, at 11.46 am, 12.27 pm, 1.17 pm and 1.18 pm, each of which stated, in respect of cognition: ‘Alert and orientated’. A revised note made at 2.30 pm included extra words, 237 Exhibit R22, p 967. 238 Exhibit R22, p 969. 239 Exhibit R22, p 971. 240 Takhar-1, [29]-[30]. See also Tr 700-701. -- 79 of 192 -- [2026] SASC 115 B Doyle J 78 referenced in Dr Hecker’s report: ‘can be confused at times on what has happened in the day’. 241 348 It appears that the 1.17 pm report may have overlapped with the time that Lynn and Cate were visiting. 349 Earlier in the day, Maurice visited. His evidence was undetailed. He could not recall if he saw Lynn at the hospital that day. He said that Paul seemed irrational and was hallucinating.242 Initial interactions 350 It is clear that Lynn arrived at the hospital and saw Paul before Cate arrived, but there are some differences in their accounts as to other aspects of the interactions. Cate’s evidence 351 Cate’s evidence is that Jenny picked her up from the airport and drove her and Raj directly to the RAH, where she met Lynn standing outside Paul’s room. Lynn asked her if she was Cate and there were introductions made between the four of them. 352 According to Cate, Lynn was shaking her head and said something to the effect that Paul did not have anything in place and had not made a will. Cate said Lynn was distressed. She misinterpreted the situation to mean that Paul had already died. She then asked to go into Paul’s room and did so alone. She was shocked to see Paul sitting up in bed, awake and alert, and happy to see her. He said several times that she had saved his life. They chatted in their normal style, but slower. Jenny’s evidence 353 Jenny gave evidence that she picked Cate and Raj up from the airport and took them directly to the RAH where Lynn met them in the reception area of the ward and asked her sister ‘are you Cate’? Introductions were made. Lynn was distressed but pleasant in her interactions with Cate, Jenny and Raj. She observed Lynn and Cate to have a brief discussion (to which she was not party in). She and Raj stood back. After the discussion, Cate and Lynn went into Paul’s room. Jenny and Raj stayed outside and went for a walk around the hospital and got something to eat and drink. They returned about an hour later, by which time Lynn had left. They then entered and spent some time with Cate and Paul. Lynn’s evidence 354 Lynn’s evidence was that she arrived in the late morning and went to Paul’s room where they chatted and she tried to feed him left over breakfast. Paul said a 241 Exhibit R22, pp 972-973. 242 Maurice-1, [119]-[122]. -- 80 of 192 -- [2026] SASC 115 B Doyle J 79 friend was coming, ‘Cate’. Paul said he had just seen the social worker, who had left some documents for him. Lynn was upset by his condition. He had lost a lot of weight. Paul wrongly thought that one of the nurses was still in the room behind the bed. Paul’s phone was flat and so Lynn went to buy a charger. 355 When she returned from the RAH newsagent, she met Cate just outside Paul’s room. Lynn has no memory of being introduced to Raj or Jenny on that date, nor of them being at the hospital on that date. Lynn and Cate waited until they were allowed back into Paul’s room. Lynn said that Paul now seemed more anxious and that Cate said to him that ‘we have to organise the will’. She said this suggested to her that Paul and Cate had been talking about a will while she was outside the room. She was shocked by this as it was not something a ‘relative stranger’ should be discussing with Paul while he was so close to death. Lynn said that Cate was anxious to talk about his will and it was to ease Paul’s anxiety that Lynn said she would contact the social worker, so there was no need to worry about that. Lynn then sent a text message using the number on the card the social worker had left Paul. Lynn’s evidence was that she sent that text message after she left the hospital, and following the preparation of the note. The text message appears to have been sent at 3.54 pm and reads:243 Hello Pramila My name is Lynn Rogers Paul Macdonald’s cousin and next of kin. When will you be at the RAH on Tuesday so we can meet with Paul? 356 Lynn’s evidence was she sent that message to arrange a meeting to discuss Paul’s state of mind. 357 In her evidence in chief, Lynn did not indicate whether, in her first discussion with Paul, she was aware that one of the documents under contemplation was a will. In cross-examination, however, she accepted, albeit with some apparent reluctance, that Paul had conveyed that one of the documents the social worker was looking at organising was a will.244 Indeed, she accepted in cross-examination that when she first met Cate, she said to Cate that Paul did not have anything in place, and that this was something she had learned from his recounting of his discussion with the social worker.245 358 Some further aspects of Cate’s account were put to Lynn in cross- examination. Lynn accepted that the proposition that Paul had said to Cate that she saved his life ‘may have cropped up during the conversation’.246 She agreed 243 Exhibit R38. 244 Tr 888-890, 892-893. 245 Tr 889.29-30. 246 Tr 891.35. -- 81 of 192 -- [2026] SASC 115 B Doyle J 80 those words may well have been used by Paul in her presence at the hospital.247 She also agreed that either Paul had said or had not disputed when Cate had said that they had been friends for about 30 years.248 359 The expression in her affidavit of shock about a relative stranger discussing the will must be seen in this context. The following exchange in cross-examination may be noted:249 Q What I want to suggest to you is that when you say you were shocked about the fact that Cate would make some reference to a will, that that’s because you didn’t know Cate, but it’s not any reason to be shocked that someone who has had a friend for 30 years who’s already been talking about a will might […]250 talk about it with their friend. A I’ll tell you what shocks me. Q Yes. A Is that someone so close to death and so unwell, whether it’s a relative or a friend, a will is the last topic I would bring up. I’m sorry. Look – 360 This evidence is illustrative of the proposition made earlier in these reasons, namely, that whilst the key witnesses were, generally speaking, doing their best, the negative views formed about each other coloured aspects of their evidence and their recollections. Some time after 6 February 2021, Lynn came to hold the view that Cate was a ‘gold digger’ and I find that this has coloured her evidence of the initial interactions. Findings 361 With respect to these initial interactions on 6 February 2021, I consider Cate and Jenny’s recollection of the sequence to be more reliable than Lynn’s. More particularly, I find that: • Lynn met with Paul before Cate arrived. The discussion included Paul relaying to Lynn that a topic that he had discussed with the social worker was the preparation of a will and in the course of this discussion he mentioned that he did not have a will in place. He also foreshadowed to Lynn that a friend, Cate, was coming down from Queensland; • Cate did not spend time with Paul (discussing the topic of a will, or at all) whilst Lynn was purchasing a mobile telephone charger. Cate arrived in the ward with Jenny and Raj and Lynn had a discussion with Cate before Cate went in to see Paul, more or less immediately followed by Lynn; and 247 Tr 892.8. 248 Tr 894.5. 249 Tr 894.6-17. 250 The transcript records the word ‘not’, but if that word was used, it was not the sense of the question or how it would have been understood. -- 82 of 192 -- [2026] SASC 115 B Doyle J 81 • Paul made statements to the effect that Cate had saved his life and was pleased to see her. 362 In my view, to the extent Lynn’s evidence reflects a recollection that Cate and Paul had had some prior interaction in which Cate had been pressing Paul about the preparation of a will, that evidence or recollection is wrong. 363 In making these findings, I have had regard to the whole of the evidence, including subsequent events and what they suggest about the inherent probabilities. For instance, it is unlikely that Lynn would have participated in the preparation of the note (in the way it is accepted she did) if the real impetus for its preparation had been a conversation with Cate whilst Lynn had been purchasing the mobile phone charger and if, as Lynn’s evidence in chief tended to suggest, the discussion of this topic in Cate’s presence made Paul visibly anxious. Preparation of the note 364 The note was set out earlier in these reasons. As indicated, it is common ground that only Paul, Cate and Lynn were present during its preparation. Cate’s evidence 365 Cate’s account is that she suggested that, as a stop-gap measure, Paul could write down his wishes on a piece of paper and that she imagined a judge would prefer to see something documented in writing rather than nothing at all. Lynn left the room briefly and returned with a piece of paper and pen. Lynn and Cate were sitting in chairs next to the bed on Paul’s left hand side. 366 Cate recollects that Lynn asked who should be executors and Paul responded that he wanted Lynn and Cate to be executors. She says that Lynn asked Paul who he wanted in the will and he responded ‘Cate and Raj’. Lynn appeared surprised and handed the piece of paper to her and said words to the effect, ‘here, you write it’. Cate did not write those names immediately. She waited for Paul to say who else he wanted to include. He initially said Lynn and her husband George, but Lynn said George was sick and she would look after him. Paul told Cate to write Lynn’s name, which she did. Paul then said he wanted to benefit Maurice and his wife Louise. Lynn said to keep it simple; including Maurice would include Louise. Paul agreed. Lynn then suggested to Paul he include Natasha and Nicole, her daughters. He agreed. Cate then asked Paul to clarify his earlier reference to Cate and Raj. He confirmed this but then said words to the effect ‘well, just you, not Raj as he will fall under you like George and Louise’. In cross-examination, Cate clarified that she had not written down her and Raj’s names initially because this was what had prompted Lynn to pass the paper to her and the discussion had moved to Lynn and George.251 Cate says that Paul then turned to Lynn and said words to the effect ‘I hope you understand’, to which Lynn responded with words to the effect that she understood and acknowledged that Paul had ‘loved Cate a very long 251 Tr 157-158. -- 83 of 192 -- [2026] SASC 115 B Doyle J 82 time’. Cate said that the list of assets reflected what Paul described. She dated the document. Paul signed it in the presence of Cate and Lynn. A nurse walked into the room and was asked to witness the document, but she said she could not. Cate’s evidence is that at no time during the interaction did Lynn express any concern that Paul did not have capacity. He was alert, orientated and coherent during the interaction and did not doze off at any point. 367 Cate said that Lynn advised she had asked a social worker from the hospital to arrange a solicitor to prepare a will for Paul, but that this could not be done immediately because it was a weekend and Paul’s social worker would be at work on Monday 8 February 2021. Lynn said she would liaise with the social worker to arrange for a solicitor to visit Paul on Tuesday (9 February 2021) for a formal will be to be drawn up, and Lynn asked Cate to attend that day for that purpose.252 Cate said that Lynn handed her a folder of documents and said the social worker had asked her to go through them with Paul and fill them out. The documents included an enduring power of attorney and advanced care directive. Lynn asked Cate to go through them with Paul. She then left the hospital. 368 In her affidavit, Cate stated that after Lynn departed, she and Paul began to go through the documents. Paul said he did not need an enduring power of attorney or advanced care directive because he was still cognitively intact. Cate states that she did not have any concerns about Paul’s capacity to make his own decisions. After Lynn left the hospital, Paul asked her to marry him, saying ‘this is not how it was supposed to end with you and me. There is still time, we could still marry’. She told Paul that they could not marry because it would cause an upset, but she would be there with him by his side like a wife, and she would stay as long as was necessary. A little while later, Jenny and Raj came into the room. Paul recognised them both and appeared happy to see them. Photographs tendered in evidence show Raj standing next to Paul’s bed, joking around with blown up surgical gloves, with the times 2.22 pm and 2.25 pm visible on a hospital screen.253 Cate’s evidence was that Paul was watching Raj and laughing.254 They stayed for a few hours, during which Paul was alert and oriented, and was conversing as normal. They then left and Jenny drove her and Raj to Firle. 369 Cate says that Paul gave her his keys and the purpose of her visiting the Firle property was to collect the gifts that had been delivered to his house for his birthday, check his mail and turn off a light that he had left on.255 370 In cross-examination, Cate was asked about the sequence of events and, as relates to the preparation of the document, she gave an account that was consistent with her affidavit. On the question of what occurred after Lynn departed, Cate wavered in her recollection of events in two respects. First, she was unsure whether she did in fact discuss with Paul the documents she said Lynn handed her 252 Cate suggested in cross-examination that Lynn referred in this context to Mr Solomon : Tr 441-442. 253 Exhibit R5. 254 Tr 92.28-34. 255 Tr 176.36-177.7. -- 84 of 192 -- [2026] SASC 115 B Doyle J 83 at that time, or whether that discussion was the following day, on 7 February 2021.256 Secondly, whilst she maintained that the discussion about marriage occurred after Lynn left, and before Jenny and Raj entered the room, she was unable to recall whether she had relayed this to anyone before the institution of the proceedings.257 Whilst this showed that her memory of events was not perfect, it did not cause me to conclude that she was generally unreliable. Jenny’s evidence 371 Jenny was not present when the note was prepared but she gave evidence about her interactions when she and Raj returned to Paul’s room an hour or so after they arrived. She said Paul was smiling and sitting up in a chair. He greeted Raj and her by name and appeared happy to see them. She observed him to be much thinner than when she had last seen him six months earlier. She observed him to be lucid in his conversation and engaging. 372 Jenny says she was upfront with Paul in discussing his end of life planning. She had a background in palliative care nursing. She asked him whether he had funeral arrangements in place and he did not. He said he wanted to be cremated. At that time he was sitting out of bed in a chair and attempting to eat some custard. She did not discuss the topic of a will with him. She was there for about 30 to 60 minutes. Paul was becoming tired and Cate asked for help from nursing staff to move Paul back to bed. She and Raj left the room and left Cate and Paul alone for a while. They then left the RAH together in the mid afternoon and drove to Paul’s house at Firle. Lynn’s evidence 373 Lynn’s evidence is also to the effect that Cate suggested the note be prepared. Her evidence is that Cate suggested some information be recorded at that time as a form of a draft will. She agrees she had a pen, found some paper, and started writing the note. She says Paul was the source of the information about the executors and that he said he wanted Lynn, Cate, Maurice, Natasha and Nicole to be included. In her affidavit, she states that Paul identified those he wanted included before addressing the topic of executors, whereas the note lists the executors before identifying beneficiaries. 374 Lynn says that Paul was not very coherent and was dozing off. That concerned her, and she was also getting very upset because of Paul’s condition. Lynn states that it was due to those concerns that she stopped writing after the words ‘Catherine Rogers of’. Lynn says Cate mentioned Raj a few times but she did not know who Cate was talking about. Paul told them he had money hidden in books, but Paul could not remember which books the money was in. Lynn agrees that she said to Paul something to the effect that he had known Cate for around 30 years, because she learned this from Paul, but she does ‘not recall using 256 Tr 171-172. 257 Tr 175-176. -- 85 of 192 -- [2026] SASC 115 B Doyle J 84 the word ‘love’. Lynn confirms a nurse was asked to witness the note but she declined. Lynn left shortly after to visit George in the nursing home. 375 Lynn did not expand on what she meant by the reference in her affidavit to Paul not being coherent during the process of the preparation of the note. It seems to me her evidence needs to be understood in light of her acceptance that he relayed at least much of the information that was contained in the note, and that she participated in a discussion about those matters, including by providing her full name (and spelling Racheline). She did not assert in her affidavit that she held a concern as to his testamentary capacity, and as was taken up in cross-examination, she did not articulate such a concern at the time. She was challenged on the suggestion that her purpose in messaging Ms Khambatta was to discuss Paul’s state of mind. I reproduce excerpts of the cross-examination below (omitting non- substantive exchanges in relation to documents):258 Q ... One of the issues, if not the key issue in this case, is whether or not Paul had capacity to make a will, isn’t it. A I didn’t even think about Paul’s capacity. I thought about how sick he was. Q Yes, and, in fact, you didn’t say anything to anybody in the hospital, during the time that you were there, questioning whether or not he had capacity to make a will, did you. A No. I didn’t see any of the doctors at the RAH at the time I was there to talk to. I would have expected them to call me, like The Queen Elizabeth Hospital doctors did. After all, I was listed as his next of kin. There was no discussion that I remember with any doctor. Q But not only with any doctor. On 6 February 2021, when the piece of paper was signed by Paul which indicated the persons to whom he wished to leave his estate, and you remember that event, don’t you. A I remember that, yes. Q You didn’t raise any objection at that point to say that you didn’t think he had capacity to sign a document like that, did you. A I was trying to relieve Paul’s anxiety, which had emerged about not having made a will, and that had only emerged when I came back to the room with his charger. Q You were aware, I think, on 6 February, that the social worker had left certain documents with Paul for him to go through. A Paul told me. She had left certain documents in the room. Q And did you understand them to be documents dealing with his end-of-life care. A I don’t know. I never looked at them. 258 Tr 899.33-903.33. -- 86 of 192 -- [2026] SASC 115 B Doyle J 85 Q No, because there came to a point, on 6 February, and I suggest it was at the point you were scribing in the sense that you were writing down on the document at the start and, when you got to the point of Cate Rogers’s address in Queensland you didn’t know it and so the paper was handed over to Cate to complete. A I distinctly remember handing it over to Cate because I got terribly upset just the fact that my younger cousin was so close to death, although I knew he had been very ill for some time, I just couldn’t handle it emotionally. … Q Could you go to para.174 of your affidavit. … And this, again, as it were responds to a paragraph in Cate Rogers’ affidavit. So do you still have her affidavit there as well. ... And the paragraph that I want you to go to is para.156 of her affidavit. Now, to assist you, you can take all the time you need to read it but I will read it out. ‘Lynn advised us – ’, so this is again on 6 February. … - she had asked a social worker from the hospital to arrange a solicitor to prepare a will for Paul but this couldn’t be done immediately because it was a weekend. Paul’s social worker would not be at work on Monday, 8 February. Lynn said she would liaise with the social worker to arrange for a solicitor to visit Paul on Tuesday -’, that is 9 February, ‘- for a formal will. She asked me to attend at the Royal Adelaide on Tuesday for that purpose’. And you say in response to that you did not ask the social worker, who I now know to be Pramila, to arrange for a solicitor to prepare a will and you say ‘During the afternoon of 6 February, I texted a social worker to arrange an appointment to discuss Paul’s state of mind. I had left the hospital by the time I sent the text message. I didn't receive a response from the social worker’, and then there is a reference to that text message connecting it up to a document in the list of documents. If I can take you, please, to the document sitting behind tab 39 at p.1959 … … So is that the text message you are referring to, Mrs Rogers, in the paragraph that I took you to in your affidavit A Yes, yes. Paul was anxious when I left on Saturday afternoon, 6 February, and I told him I would contact the social worker who had left the card. So this is the message I sent. Q Yes, and you say that the purpose - the reason why you texted her, was that you wanted to discuss Paul’s state of mind. A Paul’s state of mind, exactly. Q Now, this is the position, isn’t it. You say you never got a response from the social worker but you never had a conversation with her in relation to concerns about Paul’s state of mind, did you. A I did have a conversation with Pramila about Paul’s state of mind. -- 87 of 192 -- [2026] SASC 115 B Doyle J 86 Q Wasn’t the purpose of this communication on 6 February, as is described in Cate Rogers’ affidavit at 154, and that is - sorry, at 156, and that is, further to the conversation you had with Paul when you first got there on the 6th when there had been reference to the social worker and reference to a will, that you were going to follow it up for action to be taken about it in the following week. … A I told them Paul and Cate, as sun’s [sic] leaving the room, I would contact the social worker. I didn’t say to discuss a will, I didn’t say to discuss Paul’s state of mind. That’s all I said to relieve Paul's anxiety. Q But the completion of that note, the piece of paper that you started filling out and Cate Rogers completed, that was what I might describe as a sort of stopgap measure because there had already been discussions that the social worker was going to facilitate a proper will being prepared. Isn’t that right. A I don’t think so. I think the reason I started to contribute to that was to relieve Paul’s anxiety. It was the last thing I was thinking about. Q And just before we break, Mrs Rogers, could I just ask you, in Cate Rogers’ affidavit, to go to para.174, and there are a text message exchange - this is on 7 February but there is a text message exchange which she reproduces in her affidavit that - from her to you saying ‘Hi, Lynn, how are you today? Were you able to rest last night? I came in to see Paul today just after 11. Maurice and Louise were there. It was lovely to meet and talk with them. He is quite good today. He has eaten quite a bit of his lunch and the nurse commented on his ability to pull himself up, which was an improvement on yesterday. They are going to try and get him up later today or tomorrow. He is quite lucid with his trademark sarcasm and jokes. Cate’, and your response was ‘Thanks for letting me know, Cate. Maurice called too. I’ll let you know when the social worker replies’, kiss, kiss. Now, what I want to suggest to you, that if the purpose of you making your phone call to the social worker was to raise a question of Paul’s capacity, then there would be no occasion to be writing back to Cate to say ‘I’ll tell you when the social worker gets back to me’, as opposed to if it was for the purpose of progressing the social worker’s activities to organise the will. A I’m afraid I don’t agree with you. I’m just being sociable. I had just met Cate, I thought she was lovely and she was writing to me, I was writing back. I had no ulterior motive for anything at that stage. Ms Ikon’s interactions on 6 February 2021 376 Ms Ikon’s evidence in her affidavit was that she attended the RAH on 6 February 2021 having been told by Paul over the phone that he would not be coming home. Her evidence is that she spent up to an hour at the hospital and that Cate was there while she met with Paul. Cate had indicated in her affidavit that she met with Ms Ikon on 6 February 2021 but there is no real detail about what she recalled occurring. It is apparent, however, from a later text message, that they must have exchanged numbers. As mentioned earlier, a passage in Ms Ikon’s affidavit might appear to suggest that Cate actively prevented her having time alone with Paul but the cross-examination clarified that that was not the case. It also tended to expose that some of the negative views she later held about Cate and her level of interest in arranging a will may not necessarily reflect views Ms Ikon -- 88 of 192 -- [2026] SASC 115 B Doyle J 87 actually held as at 6 February 2021. Ms Ikon’s interactions with Cate were not put to Cate in cross-examination but it does not appear to be disputed by Cate that Ms Ikon did attend on that date. No suggestion to the contrary was made by Cate’s counsel in the cross-examination of Ms Ikon. 377 In respect of Paul’s state of mind on 6 February 2021, Ms Ikon’s evidence under cross-examination was that Paul was lucid in his discussion with her and Cate on that day.259 The following exchange occurred:260 Q And you’ve said that Cate was present in the room the whole time that you were there with Paul. So that was for about an hour. A Yep. Q And were the three of you engaged in conversation with one another. A Yes. Q Would you agree with this proposition, that there was nothing in what Paul said or did on that occasion that gave you any concerns that he was cognitively impaired. A No, he was quite distressed on the day, but that’s - Q Certainly distressed. A Yep. Q He was a very sick man, but I want to suggest to you that he was able to clearly communicate his thoughts and feelings to you and to Cate, and to participate in the conversation that the three of you had. A I think so. 378 She did not observe Paul to be suffering from any hallucinations on 6 February 2021, nor did he refer to having suffered hallucinations.261 Findings 379 I find that Cate entered into Paul’s room more or less with Lynn and that in Lynn’s presence Paul said Cate had saved his life. He was pleased to see her. In making this finding, I bear in mind a later text message sent by Lynn to Cate (to which I will return), which stated that ‘you seem to lift his spirits’.262 380 Whilst I am unable to find precisely how the topic was first broached with Paul, I find that Lynn having relayed to Cate that Paul did not have a will in place, there was a discussion about Paul’s wishes. I find that Lynn participated in this process not merely to ease any anxiety expressed by Paul but because it was 259 Tr 519.8. 260 Tr 516.13-30. 261 Tr 519.34-36. 262 Exhibit R43, Tr 909.19-20. -- 89 of 192 -- [2026] SASC 115 B Doyle J 88 something she understood Paul wished to attend to. I find that her participation is consistent with her not having or expressing active concerns about his capacity to make a will at that time, although I accept that she would not likely have given that matter much analytical thought. That is to say, whilst her participation is consistent with Paul having acted in a way which did not disclose a clear lack of capacity, it is of course not conclusive of the question whether he had testamentary capacity. 381 I find that Paul stated who he wanted to look after his estate (Lynn and Cate) and that he listed a rational group of beneficiaries in a manner which was not positively indicative of a lack of capacity. He was likely tired and still processing the news about how dire his prognosis was, but not delusional or irrational. I find he mentioned Cate (and initially, Raj) as beneficiaries without any express prompting by Cate. 382 In making these findings I have had regard not only to the evidence of Cate and Lynn but to the observations of Jenny and Ms Ikon, each of whose evidence is consistent with Paul engaging in lucid discussion on 6 February 2021. I do not overlook Maurice’s recollection that, earlier in the day, Paul appeared to be hallucinating, but I bear in mind that during Dr Lim and Dr Takhar’s interaction with Paul in the morning, Paul appeared lucid. The fact that at times Paul suffered from hallucinations, and that other times he was extremely tired and prone to dozing, does not mean that there were not periods of lucid engagement with those around him. 383 I have also borne in mind the inherent likelihood of events. Having regard to the nature of the relationship Paul had over many years with Cate, the generosity he had previously shown her and Raj, the affection and gratitude he contemporaneously expressed, the accepted fact he wanted her to be an executor (indicating his trust in her), and the relatively small class of family members who might otherwise enjoy his estate, it is not at all surprising that he would have included her in the list of people to benefit from his estate. 384 I find that whilst Lynn later came to hold concerns about Paul’s capacity, influenced by the belief she developed that a woman who she had not previously met or known was proactively inserting herself into Paul’s affairs with a view to financial gain, her text message to Ms Khambatta was not designed to arrange a time to discuss any concerns Lynn had about Paul’s mental state at that time. Rather, it was to progress the matters that Paul had relayed the social worker had raised. 385 I am unable to resolve whether in the context of Lynn saying she would make contact with the social worker, she mentioned arranging a solicitor. I accept that she would not have and did not mention Mr Solomon in this context. In cross- examination, Cate said that a reference to Mr Solomon had been made at that time, -- 90 of 192 -- [2026] SASC 115 B Doyle J 89 although she wavered about that.263 Whilst I have not accepted that evidence, I have not found it to be dishonest evidence, although it may reflect that some of Cate’s recollections about Lynn’s conduct may involve reconstructions influenced by the poor light in which she came to see Lynn once the dispute between them commenced. I did not get the sense that the evidence was calculated, and I did not consider Cate a witness who would give consciously dishonest evidence. Cate’s attendance at the Firle property 386 Cate and Jenny both gave evidence that they drove with Raj to the Firle property from the RAH. They both said they were there for about 15 minutes. Raj stayed in the car. Cate said the house was in a condition consistent with what it had been for much of the time she had known him. Jenny said it was very cluttered with mess everywhere. Afterwards, Cate sent a text message to Paul telling him she had turned off the light, locked both the wooden and screen doors and ‘taken your mail from your mailbox (Australia post envelope)’.264 The message seems to have been sent at 5.49 pm. The only thing Jenny saw removed was a box of food that had been delivered for Paul’s birthday. 387 In respect of Cate’s evidence that Paul had asked her to collect any mail, it was put to Cate in cross-examination that Paul’s mail got delivered to a PO Box. Cate agreed. She said that Paul advised her that he had spoken to Australia Post because he could not get down to his PO Box and had asked them to deliver his mail from his mailbox to his address, and that his mail had been contained within an Australia post envelope.265 It was put to her that her evidence about this was false and that Paul had said no such thing to her and she simply decided to attend his house on the basis that no-one had been there since the Wednesday and it needed to be checked. She disagreed.266 In re-examination Cate explained that she had been told a week or two beforehand, and before Paul went to hospital, that he had asked Australia Post to do this for him as a one-off as he was sick at home and not eating and couldn’t get down to the post office.267 I accept this evidence. Events of 7 February 2021 388 Cate’s evidence was she returned to the hospital on 7 February 2021 with Jenny and Raj and was in Paul’s presence for a large part of the day. Jenny and Raj stayed for a short time and left.268 389 Maurice said in his first affidavit that Paul described hallucinations relating to a particular picture on the wall in his room.269 That evidence was not challenged and is consistent with the medical reports. In his second affidavit, Maurice said that when he met with Cate, Cate seemed lovely and friendly. He could not recall 263 Tr 441-442. 264 Exhibit R32. 265 Tr 178.20-28. 266 Tr 179.10-15. 267 Tr 481-482. 268 Tr 179.34-35. 269 Maurice-1, [124]. -- 91 of 192 -- [2026] SASC 115 B Doyle J 90 what was said in particular, but recalled her making some reference to the words ‘his affairs’.270 This evidence was of a very general kind. It is quite possible that Cate made some reference to the discussion that had occurred the previous date, but I cannot make any precise finding about any discussion. 390 In her affidavit, Lynn said she attended the RAH on 7 February 2021, that Louise and Maurice were there when she arrived, and that Cate was also present. She believes this may have been the day that she met Raj. She says that Paul was hallucinating.271 I find that Lynn is mistaken. I find she met Raj the previous day. She was somewhat equivocal about her memory of 7 February 2021 in the course of cross-examination.272 Her attendance was not noted in any of the records.273 Maurice said he could not recall if Lynn was present that day, and alluded to the fact that Lynn had suffered from migraines during some of the hot weather.274 The text messages (reproduced below) exchanged between Cate (on the right) and Lynn (on the left) are inconsistent with Lynn having met with Cate on that day, and seem consistent with Maurice’s memory of Lynn having been unwell. [7 February 2021] Hi Lynn. How are you today? Were you able to rest last night? I came in to see Paul today, just after 11. Maurice & Louise we’re here. It was lovely to meet and talk with them. He is quite good today. He has eaten quite a bit of his lunch and the nurse commented on his ability to pull himself up which was an improvement on yesterday. They are going to try and get him up later today or tomorrow. He is quite lucid, with his trademark sarcasm and jokes. Cate Thanks for letting me know Cate. Maurice called too. I’ll let you know when the social worker replies. Xx 391 In Cate’s affidavit, she recounted meeting Maurice and Louise and having a civil discussion with them. There was no discussion about Paul’s will. Cate recalled that at some stage Louise said that Paul lights up when talks to Cate. Cate said that she stayed for a few hours and subsequently exchanged messages with both Lynn and Ms Ikon. As will be explained, a question arises as to whether, during Cate’s time with Paul, he gave her instructions in relation to the payment of bills. Before addressing that topic, it is convenient to summarise the medical evidence. 270 Maurice-2, [7]. 271 Lynn, [177]-[181]. 272 Tr 909.1-2 (‘I can’t really remember if I saw him on the Sunday …’). 273 The nursing note at Exhibit R22, p 979 records: ‘Social: 2 friends came in earlier to visit, currently 1 friend in visiting’. The reference to two friends is likely to have been to Maurice and Louise, and the reference to one friend in visiting is likely to be to Cate. 274 Maurice-1, [126]. -- 92 of 192 -- [2026] SASC 115 B Doyle J 91 Hospital observations 392 It appears from a nursing note made very early in the morning that Paul had been awake most of that shift.275 Dr Takhar then visited Paul around 9.30 am in the morning, as part of the Medical Oncology Team Ward Round, accompanied by a junior doctor, Dr Vinod Mathai.276 393 It was noted that Paul’s blood cultures indicated the presence of bacteria, which was suggestive of infection. Dr Takhar checked that the intravenous antibiotics he was receiving were appropriate for the treatment of that infection. They were. A blood transfusion was ordered. Dr Takhar was informed by nursing staff that Paul had been experiencing some confusion and hallucinations. In his evidence, Dr Takhar explained as follows:277 [35] Hallucinations are not uncommon among elderly patients nearing the end of life or in acute illness, typically occurring at night. Factors that may contribute to these symptoms include illness, medication, altered sleep-wake cycles, being in an unfamiliar hospital environment, and the frequent presence of nurses and other staff coming in and out of the room. [36] Hallucinations may manifest as either visual or auditory. They can vary in severity from mild, such as the appearance of movement at the corner of the vision or soft voices, to more severe hallucinations where patients may experience fixed delusional and/or paranoid beliefs. [37] It was important to characterise the nature and severity of Mr Macdonald’s hallucinations from a clinical perspective. [38] Mr Macdonald informed me that he was experiencing visual hallucinations, which primarily involved him seeing objects in his room. Mr Macdonald reported that the hallucinations occurred primarily at nighttime. Mr Macdonald denied experiencing any auditory hallucinations. [39] Mr Macdonald explained to me that his visual hallucinations were transitory. He had insight regarding the hallucinations and was able to identify them as such. By this, I mean Mr Macdonald was able to recount to me what had occurred and the visual hallucinations that he had had. He was able to identify these as visual hallucinations which were not real, and to distinguish these from his observations of reality. He was not distressed by them. [40] Mr Macdonald was not actively hallucinating at the time I saw him. He was alert, coherent and logical in our discussion and in his reasoning. Mr Macdonald appeared to understand that his cancer had progressed and that his prognosis was not good. [41] Mr Macdonald was orientated to the year and season. He was also able to identify the Premier of South Australia and Prime Minister of Australia. [42] Based on my discussion with and assessment of Mr Macdonald, I determined that Mr Macdonald’s hallucinations were toward the lower end of severity and were not consistent with the presence of delirium. Mr Macdonald’s hallucinations were 275 Exhibit R22, p 976. 276 Exhibit R22, p 978. 277 Takhar-1, [35]-[42]. -- 93 of 192 -- [2026] SASC 115 B Doyle J 92 consistent with the type of hallucinations that patients commonly have as they approach the end of their life and did not require treatment or intervention. 394 In cross-examination the question was asked whether visualising snakes in pictures on the wall might be of the extreme kind consistent with delirium. Dr Takhar explained that for a diagnosis of delirium he would require more, such as altered consciousness, disorganised thinking, lack of focus or attention. Dr Takhar emphasised that Paul had insight into the fact that his hallucinations were false.278 395 I accept Dr Takhar’s evidence as accurately and fairly reflecting his observations of Paul on the morning of 7 February 2021. 396 I note that a nursing note made early in the afternoon describes Paul as ‘[a]lert and orientated at times’ and that a nursing note made at around 8.30 pm that evening described Paul as ‘alert and orientated’.279 Instructions to pay bills 397 Cate gave oral evidence in chief detailing a discussion she had with Paul on 7 February 2021 about the payment of bills. The effect of this evidence was as follows: • Paul asked Cate to retrieve and take a look at some bills from a bag that he had brought with him to hospital and which he said he had recently collected but had not had a chance to pay;280 • amongst those was a Commonwealth Bank of Australia (‘CBA’) Low Fee Mastercard statement which showed an outstanding amount of $176.05, for which a minimum payment was due by 8 February 2021;281 • Cate handwrote on the document Paul’s instructions which were for Cate to pay the bill for him, along with the time and date of the instruction, being 12.27 pm on 7 February 2021;282 • Cate also made the following notation on the document: Pd. N220719011510 From 10146386 Cate 176:05 Sunday 7/2/21 3:17pm EST C Rogers [signature] 278 Tr 707. 279 Exhibit R22, pp 979, 981. 280 Tr 88. 281 Exhibit R4. 282 Tr 88. -- 94 of 192 -- [2026] SASC 115 B Doyle J 93 • Cate could not recall, when giving evidence in chief, whether that meant that she paid it from Paul’s account or from her own, with her being later reimbursed with cash, but she thought it appeared to be the latter;283 • Paul also asked Cate to pay an SA Water account in the amount of $155.04 due by 5 February 2021 and recorded in handwriting on the document:284 Pauls instructions 12:31 7/2/21 Cate to pay on Monday. 8/2/21 → cash taken from Pauls wallet to pay this account. • Paul counted out cash from his wallet which he gave to Cate (who took a photograph of this) and she paid the account on his behalf in cash. It may be noted that on the second page of the bill appears handwriting: Lawrence 12/2/21 11:48 Receipt 11135469496 • Cate attended SA Water in person on 12 February 2021 (a Friday) and made payment;285 • Paul asked Cate to pay a Rates Notice from the City of Norwood Payneham & St Peters in the amount of $349 (for the quarter) (or $698 for the remainder of the year) which was due on 2 March 2021.286 Cate handwrote the following on the document: Pauls instruction 13:03 7/2/2021 Pay by mastercard on 28/2/2021 Pay 3rd Qtr only. • Cate said Paul instructed her just to pay for the relevant quarter. Cate said she had access to Paul’s Mastercard to be able to pay that account, but she could not bring to mind the circumstances in which she ultimately paid it.287 398 The evidence just described was given towards the end of the first day of trial. On the following morning, Cate was taken in her evidence in chief to a bank statement for a CBA Streamline Basic Account in her name for the period December 2020 to March 2021.288 She identified a transaction on 7 February 2021 which confirmed in her memory that she had paid Paul’s CBA Low Fee Mastercard account from this account.289 283 Tr 88-89. 284 Exhibit R2, Tr 90. 285 Tr 91. See also Tr 99. 286 Exhibit R1, Tr 90-91. 287 Tr 90-92. 288 Exhibit R6, Tr 99. 289 Tr 99.36-100.2, cf. Tr 100.3-6. -- 95 of 192 -- [2026] SASC 115 B Doyle J 94 399 She also said she had a memory of attending the offices of Norwood Council at some time after Paul had died in order to pay the Council rates.290 400 Very shortly following this, Cate was cross-examined about the bank statement she had produced in her own name. Her attention was drawn to a transaction on 26 February 2021 which appeared to be a transfer from an account ending ‘4705’ with a narration ‘Paul MacDonald’ in the amount of $500. She was asked what the transaction was and she said she did not know what it was.291 She was equally unable to explain a transaction from the same account number in the amount of $300 on 5 February 2021 accompanied by the narration ‘Trip to RAH’.292 It was pointed out to her that there also appeared to be some payments from her account to the account ending ‘4705’. 401 Cate was, to my observation, somewhat unsettled by this line of questioning, which marked the start of her cross-examination. It continued:293 Q So someone has deposited $800 into your account relating to Paul Macdonald, but you’re unable to assist his Honour in relation to what those transactions are. A Correct. Q It appears that there are a number of transactions described as ‘loan repayments’ to an account ending 4705, commencing in this document on 5 January, do you see those. A Yes. Q So you’ve borrowed money from someone and you’re paying it back via that account, you’d agree with that, wouldn’t you. A I don’t understand what you just said. Q Well, someone is debiting your account on a frequent basis, to account ending 4705, and describing it as a ‘loan repayment’, you’d agree with that, wouldn’t you. A Yes, there’s a loan repayment in that account, yes. Q So it looks like the same account that deposited $800 into your account, you are paying money back described as a ‘loan repayment’. A I guess so. Q Who is that loan repayment to. A I don’t know. Q You don’t know. 290 Tr 100. 291 Tr 100. 292 Tr 101. 293 Tr 101.5-102.13. -- 96 of 192 -- [2026] SASC 115 B Doyle J 95 A No. Q You generally ask his Honour to believe that you don’t recall who you were making repayments to in 2021. A Yes. Q You want to take a guess. A No. Q So it could just be anyone. A I don’t know. I have not looked at that for a very long time. Q So someone is debiting your account ‘loan repayments’, and crediting it with moneys relating to Paul, but as you sit here in the witness box, you have absolutely no memory of who that might be. A No. Q I suggest that the evidence you’re giving to his Honour in relation to that is false, and you do remember, and you just don’t wish to disclose it, because it may be prejudicial to your case. What do you say to that. A Completely false. Q You’re suggesting my question is false. You’re not accepting that your evidence is false. A No, my evidence is not false. What you’ve said is false. 402 Cate was then challenged about her account of Paul’s instructions to her about the bills. She was asked questions which probed further details. She said the bills had been in a black bag that was in the wardrobe in the room Paul was in and that he had asked her to retrieve the bag from that wardrobe.294 She said that the bag also contained cash, his wallet, cards that were in his wallet and a mask. She said he brought that bag with him to the hospital. 403 It was put to her that what in fact occurred was she had retrieved these bills from his house the night before; she disagreed.295 A further suggestion, relevant to the provenance of the CBA Low Fee Mastercard bank account, was put to her. This was with reference to a recording of a conversation between Cate and Paul on 13 February 2021. In the course of that conversation, Cate relayed having attended Paul’s PO Box the previous day, on 12 February 2021, only to realise she could not recall the PO Box number. She said that she then went to Paul’s house, at which time she saw on his table a CBA document that had the PO Box number on it. That allowed her to go back and access the PO Box.296 294 Tr 103-104. 295 Tr 105. 296 Exhibit A19 ‘17. Post Box clearing’. -- 97 of 192 -- [2026] SASC 115 B Doyle J 96 404 It was put to her that the CBA document she was referring to in that discussion, on 13 February 2021, was in fact Exhibit R4 (being the bank statement Cate said Paul gave her on 7 February 2021). She rejected this.297 405 The fact that she paid the outstanding amount shown in that statement on 7 February 2021 suggests that statement was not the document she was referring to as having located in his house on 12 February 2021. I therefore do not accept that particular proposition. 406 It remains to be considered, however, whether the bills were provided to Cate on 7 February 2021 (and had come with Paul to hospital in his black bag), or were retrieved by Cate from the house on 6 February 2021 (either from his letter box or from inside). 407 It was put to Cate in cross-examination that she had received and read the applicants’ opening written submissions in which it was contended that Paul suffered a deficit in executive functioning, making issues such as whether he was keeping on top of his bills a relevant issue. It was put to Cate in cross-examination that: ‘that’s why yesterday, for the first time, you gave evidence about how it was Paul who instructed you to pay these bills on 7 February, isn’t it’. It was put to her that she ‘only decided that this actually happened and you should tell the court about it to meet the case that you now understand being made by Lynn and Maurice, isn’t that the case’. She disagreed with these propositions.298 (In fact Cate had made a general reference to paying bills at Paul’s request towards the end of an affidavit she affirmed before the applicants’ opening was filed.299) 408 In re-examination, some of these matters were returned to and, relevantly: • Cate was taken to bank statements relating to a CBA Extra Home Loan account in her name with an account number ending ‘4705’.300 This demonstrated that the payments she had been unable to explain in her other bank account statement were transfers between accounts in her own name, dispelling any possibility that there was anything untoward about the transactions which she might have been reluctant to reveal;301 • Cate was reminded of her evidence that the bills had come from a black bag Paul had brought to the RAH and photographs, to which she had alluded in her cross-examination, were tendered.302 She said these were photographs she had in mind showing the contents of the black bag, which she explained was a black laptop bag.303 The photographs show various personal effects 297 Tr 106-107. 298 Tr 107.9-108.1. 299 Cate, [321]. The affidavit was made on 6 December 2024. The applicants’ written opening (FDN 105) was filed on 7 March 2025. 300 Exhibit R12. 301 Tr 475-477. 302 Exhibit R13. 303 Tr 478. -- 98 of 192 -- [2026] SASC 115 B Doyle J 97 and show Paul, in his hospital bed, handling cash that appears to have come from his wallet; and • in relation to the fact she had not mentioned paying bills in her affidavit, she gave evidence that she had only seen and been reminded of the Council rates notice and the SA Water bill containing her handwriting (that is, Exhibits R1 and R2) in the week or so before the trial.304 409 As has been noted, the applicants put to Cate in cross-examination that her account of Paul requesting her to pay the various bills was false. A submission of recent invention is made. It is said her evidence about Paul’s instructions is ‘extremely doubtful’. It is pointed out that there is no reference to the bills in the hospital records relating to his admission. 410 In relation to the CBA Low Fee Mastercard bank account statement, this was discovered by Cate on 17 December 2024, shortly after her affidavit was sworn and served. The suggestion made to Cate in cross-examination that this invoice was in fact the invoice she located at Paul’s house on 12 February 2021 can, in my view, be rejected, given that the evidence shows Cate paid the account on 7 February 2021. Whilst it remains possible that, contrary to her evidence, Paul did not have that bill (or the other bills) with him in hospital on 6 February 2021, and they were in fact located by Cate when she attended his home the previous evening, I do not consider the hospital records particularly point one way or the other in relation to this issue. They do record that amongst the property brought to hospital was a ‘black bag’ as well as a ‘power bank’ and ‘misc nick/nacks’.305 One would not necessarily expect any documents contained in the black bag to be listed. 411 The applicants contend that it is inherently unlikely that Paul would have been in a state to gather together items such as unpaid bills, but it is difficult to draw that inference in isolation. He did appear to have a number of relevant items with him. That his house was extremely cluttered does not suggest that he was not able to locate things he needed. 412 The respondent’s submissions emphasise that it was not put to Cate that the handwritten notes on the documents were not made by her on the dates they purport to have been made. That is true, although in my view the cross-examination did involve the implicit if not explicit suggestion that her evidence on these topics was false. I therefore would not attach any significance to the failure distinctly to put to Cate that she made false entries on the documents. 413 Whilst I will express my findings on this topic at this juncture, they have been reached in light of all the evidence, including issues relevant to Cate’s credibility and reliability which are canvassed later in the reasons. 304 Tr 483. 305 Exhibit R22, p 898. -- 99 of 192 -- [2026] SASC 115 B Doyle J 98 414 I find that there was a discussion about the three bills on 7 February 2021 at the dates and times indicated on the documents. There is nothing in the observations made by Dr Takhar, or the nurses who observed Paul on that day, to clearly suggest he would have been incapable of giving instructions of the kind under contemplation. Although he suffered hallucinations, he had insight into the fact that they were hallucinations. He was otherwise capable of being alert and coherent. 415 The fact that a payment was made on 7 February 2021 shows that Cate had the relevant invoice on that date. I think it is inherently unlikely that she paid the account without discussing it with Paul. If her evidence on this topic is false it entails that she made false written records on the documents with a view to giving dishonest evidence. 416 Whilst, as I will explain, shortly following Paul’s death (at a time of emotion and conflict) Cate unfairly cast aspersions about Lynn’s conduct in the final days of Paul’s life, and whilst I have ultimately found that there are some aspects of both her and Lynn’s evidence that should not be accepted as accurate or reliable, the creation of false written records with a view to giving dishonest sworn evidence about them involves the attribution to Cate of a preparedness to engage in dishonesty of a different order and magnitude. I did not gain the impression that Cate was prepared to so engage, or that she was giving consciously dishonest evidence. 417 She was, as has been mentioned, unsettled by the suggestion that she had given dishonest evidence about transactions shown on her bank statement, but it was shown in re-examination that there was no reason for her to have been unsettled. In fact, her inability to explain the transactions when first confronted with them could be said to be consistent with the conduct of an honest witness who admits their uncertainty rather than constructing an explanation that they perceive will assist.306 It may also suggest she had not closely studied the documents in a way that one might if constructing an elaborate false narrative. 418 Cate was also unsettled when she was cross-examined about recorded conversations between her and Paul, but in circumstances where she said she had not gone back over them,307 I did not regard that as necessarily telling against her credibility or reliability. Having considered her evidence in its entirety, I did not ultimately conclude that she was a deliberately untruthful witness. 419 Whilst I have hesitated about accepting the evidence that the bills came to Cate’s attention on 7 February, as distinct from on the evening of 6 February, I have accepted Cate’s evidence about that. I had little hesitation and I am more 306 As well, if she had prepared false notations designed to corroborate a false narrative involving the bank statements, she is likely to have been in a position to answer the line of cross-examination regarding the loan payments. Her temporary inability to do so was more consistent with not have studied the document closely. 307 Tr 425.13-15. -- 100 of 192 -- [2026] SASC 115 B Doyle J 99 comfortable in accepting that, in any event, there was a discussion on 7 February 2021, in which Paul asked her to attend to the accounts. Whilst I appreciate that Cate’s credit is tied up in both aspects of the account, my additional comfort regarding the discussion on 7 February comes from such a discussion being more consistent with what in fact occurred (including, importantly, the payment made on that day). I did not consider it to be the case that Cate concocted this part of her evidence with a view to providing evidence to meet the applicants’ opening written submissions or, indeed, to answer Dr Hecker’s earlier report, as has also been suggested. Events of 8 February 2021 420 Cate’s evidence is she visited the RAH early on the morning of 8 February 2021. It appears from photographs taken of her sister’s car (which she was driving) parked at various locations near the hospital that she was there from early through to mid-afternoon, but was likely coming and going given the need to move the car.308 421 Maurice stated in his affidavit that he visited Paul before 10.00 am and had to leave at around 11.30 am when Cate arrived.309 He says Paul would doze off. In his second affidavit, Maurice said his best memory was that Paul talked strangely and said irrational things, but he was not able to recall detail about what he was talking about or the hallucinations he claimed to recall.310 422 Lynn also says that she went to the RAH on 8 February 2021 in the late morning, staying for about an hour, and seeing Cate and Ms Ikon.311 She could not recall if she saw Maurice or Louise. She includes no observations of Paul’s state on that day. However, as will be seen, in a text message that night she said that Paul was ‘quite chirpy this morning and said he was eating and was looking forward to seeing you’.312 The way that text message is expressed might suggest that in fact Lynn called, rather than visited, but since Lynn makes no relevant observations on this date, it is not necessary to pursue that question further. 423 Before returning further to the communications between Cate, Lynn and Maurice on that day, I will refer to the medical evidence. 308 Cate, [176]. 309 Maurice-1, [133]-[136]. 310 Maurice-2, [8]. 311 Lynn, [182]-[187]. 312 Exhibit R43. -- 101 of 192 -- [2026] SASC 115 B Doyle J 100 Hospital observations Oncology observations 424 Paul was seen by Dr Lim, Dr Sansome and some medical students as part of the Medical Oncology Ward Round. Dr Sansome made notes of the interaction at around 9.30 am.313 The note confirms that Cate was present. 425 There was a discussion about Paul’s progress. It was noted there was disease progression in Paul’s lung and liver and that there were no further treatment options available. It was noted that Paul would be in palliative care and that treatment should focus on comfort and symptom management. Paul was advised that the transfusions he had been receiving were not a long term solution, and were not treating the bleeding. He indicated that he would like to continue transfusions ‘to have enough time to arrange affairs’. The respondent emphasises that this reference was omitted from Dr Hecker’s summary of the medical records, as was the later comment ‘Does not appear confused today’. 426 The note records that Paul had reported visual hallucinations, that he does not find them confronting and is aware that they are hallucinations at the time. One of the notes under ‘P/’ (for plan) is ‘Ongoing SW [social worker] review to arrange legal documents’. 427 A nursing note made in the early afternoon recorded, in respect of ‘Cognition’, that Paul was ‘[a]lert and orientated at times. Was able to tell staff his location but not the date and day. Has been hallucinating again today’.314 That note records in relation to ‘Social’: ‘Friend came in to visit today’. That was likely a reference to Cate. The absence of a reference to Maurice, together with the number of recordings made by Cate of conversations between her and Paul through the course of the morning, inclines me to doubt whether Maurice was in fact present on the morning in question. Nothing of great significance turns on this, since it is not in doubt that, on occasions on 8 February 2021, Paul suffered hallucinations. Palliative care observations 428 Paul was seen twice by Dr Cursaro, as part of a palliative care consultation, on 8 February 2021.315 This was the first time Dr Cursaro saw Paul. The consultations were at around 11.00 am and later (briefly) at around 4.45 pm. Dr Cursaro’s evidence is that the note accords with her recollection of the interactions she had with him. She thought the earlier consultation would have been between 20 and 60 minutes, possibly longer.316 It is convenient to set out her evidence.317 313 Exhibit R22, p 983. 314 Exhibit R22, p 984. 315 Exhibit R22, p 986. 316 Tr 659-660. 317 Cursaro-1, [10]-[20]. -- 102 of 192 -- [2026] SASC 115 B Doyle J 101 [10] I recall that Mr Macdonald was very frail physically and approaching the end of his life. [11] I noted that Mr Macdonald had been admitted to hospital as a result of the progression of his metastatic colorectal cancer. Mr Macdonald was also suffering from anaemia caused by gastrointestinal bleeding. That was a complication of his cancer, from which he would not recover. He was also suffering from an infection. [12] On 8 February 2021, Mr Macdonald was continuing to receive active treatment in the form of blood transfusions and antibiotics. However, he was ultimately for symptom management and end of life care. [13] I had a discussion with Mr Macdonald about his preferences for end of life care and the different options available to him. [14] Mr Macdonald was very keen to get his affairs in order before his death. Although I was aware that Mr Macdonald intended to complete certain legal paperwork, I was not aware of the specific paperwork that Mr Macdonald needed to complete. However, given his circumstances, I assumed he intended to complete a will. [15] Mr Macdonald informed me that he was experiencing some visual hallucinations. Mr Macdonald informed me that he was seeing faces and lines on the wall. However, he was not distressed by these hallucinations and knew that they were not real. The fact that Mr Macdonald retained insight regarding his hallucination was a positive sign. [16] Mr Macdondald was reasonably orientated during my consultation with him. Although he was not able to recall the date, this is not uncommon for patients in hospital in my experience. Mr Macdonald was orientated to the day, month and year. [17] Mr Macdonald’s attention was impaired and he appeared physically tired. However, his attention was sufficient to engage in an appropriate conversation with him about his treatment and management. [18] In addition, Mr Macdonald was more alert when I spoke with him on the afternoon of 8 February 2021. This was a positive sign, with regards to his decision-making capacity at that time. [19] Based on my observations of Mr Macdonald on 8 February 2021, I did not have any concerns about his capacity. [20] If I was unsure whether Mr Macdonald had cognitive capacity, I would have conducted a specific assessment of his decision-making capacity. However, I did not consider this necessary. In 2021, I was in my final year of geriatrics training. I was familiar with both the type of cognitive capacity required to make end of life decisions, including in relation to medical care and discharge location, as well as the requirements for testamentary capacity. 429 I found no reason to doubt this evidence and I generally accept it. That is not to say that I treat Dr Cursaro’s evidence of an absence of concern about capacity as itself positively establishing testamentary capacity on 8 February 2021 (or generally). It is, however, relevant and material to my overall assessment of that question. -- 103 of 192 -- [2026] SASC 115 B Doyle J 102 430 A nursing note made in the evening describes Paul’s cognition as ‘[a]lert and cognition fluctuates’.318 Paul’s interactions with Cate and her subsequent communications 431 In her affidavit, Cate recounted that after the initial visit Paul had from a team of doctors in the morning (which, it may be inferred, was the attendance by Dr Lim and Dr Sansome and the medical students), Paul was seen by Dr Selva-Nayagam, his treating oncologist. Cate observed Dr Selva-Nayagam speaking to Paul kindly and with great familiarity,319 apologising that there was nothing further he could offer Paul by way of treatment. Cate said Paul accepted and understood this news.320 432 Cate later sent a series of messages on a group chat with Lynn and Maurice, which are reproduced below (with Cate on the right and Lynn or Maurice on the left):321 Hi Lynn and Maurice. I have been in with Paul today. The medical team came in this morning. He is bleeding from the stomach and has an infection so is on antibiotic drip and blood infusions. He is being medicated for the bleed however if it does not stop they will have to make the decision to stop the blood infusions & antibiotic. Once this decision is made, then he will be referred to flinders. Flinders has a wait list and he is in care already he will not be a priority. Such that he will be at RAH for awhile. They are expecting once the transfusions and antibiotics cease then he will have days to weeks to live. This was a real blow to Paul today and left him shaken. He slept for 3 hrs this afternoon and woke feeling a little better. The social worker popped in this afternoon and will be meeting with the team tomorrow. She will come in later in the morning. Hope you are all okay. It’s not the news we wanted. Kind regards, Cate. Lynn: Thank you for that information Cate. It’s a real blow. Paul has been in denial or he does not understand how ill he has been and it’s very very sad. I don’t know why the social worker didn’t reply to me. I told Paul this morning that I’m coming in tomorrow. Do you know what time she’s coming in? Who will make the final decision to stop the doctors or Paul? Lynn: He was quite chirpy this morning and said he was eating and was looking forward to seeing you. 318 Exhibit R22, p 988. 319 The beginning of this interaction can be heard at the end of a recording comprising Exhibit A19 ’11. House-peeing-syd selva’. 320 Cate, [179]. 321 Exhibit R43. -- 104 of 192 -- [2026] SASC 115 B Doyle J 103 Maurice: Hi Cate – thanks for contacting us. It’s all so very very sad. I really don’t know what to say Cate except thanks for everything. It’s been good that you have been able to spend time with Paul you seem to lift his spirits. Thank you so much. 433 The messages continued, as set out below, but I interpolate at this point that Maurice’s communications at this time tend to reinforce that insofar as his affidavit suggested he had a negative view of interactions with Cate before this time, that is likely to have been a result of a reconstruction of events through the prism of the later animosity or scepticism he developed towards Cate. I’m not sure Lynn, I think the Drs. It was the social workers offside[r] who popped in today. The actual social worker will be in tomorrow. Today Jess just checked whether we had questions. I said I had been through that little booklet with Paul about thinking of his final wishes, his values, things important to him and things he doesn’t want, etc for his final stages. It was quite confronting for us both. I feel very sad. I have had to keep it together for Paul today and for my little boy tonight. All I feel like doing is crying my eyes out. Thank you both for your kind words. They have a scan from 4 weeks ago and one from when he came in last week and the cancer has progressed rapidly in that time: since he went off medication. It is in his liver and lower and upper lung. Up until then they had held it at bay. It is not in his brain. Lynn: Well it was probably the anaemia that caused him not to think clearly. I guessed it couldn’t be good because of the rate of weight loss. I’m upset at his so called Chinese doctor friend too. Paul could have survived longer if he hadn’t cancelled that important appointment four weeks ago but what’s the point of recriminations at this stage. As long as he’s not in pain xx Yes, I too am unhappy with the Chinese Dr. How could he have possibly treated him last Tuesday? It was negligent. He gave him a Chinese massage and then some potions to take. It may well have been this that gave him the infection. He only just txt to ask how Paul was and I replied on Pauls phone that he was in the RAH. I said nothing more. He is not in pain Lynn. I will see you tomorrow. As far as timing? I do not know. But I can see that they all get together in the morning to discuss patients and then are available after that. -- 105 of 192 -- [2026] SASC 115 B Doyle J 104 Lynn: OK Cate. Have a rest in the morning. I can stay until 2 at the latest. I won’t get too lost in the car park now that I understand the numbering system. 434 Cate’s reference to a discussion with a social worker named Jess appears to reflect a note in the hospital records of the same day.322 The note refers to a discussion with ‘friend Cate to discuss legal paperwork’. The note contains a reference to concerns about capacity and ability to sign legal paperwork. It continues ‘Will require documentation from H/T to confirm capacity’ and ‘Concerns regarding possible Will completed by niece Lyn[n] not long after admission. Social Work Pramila to follow-up tomorrow – possibly make a time to meet with niece Lyn[n] and friend’. The assessment outcome includes: ‘Requires social work input for legal paperwork’. It is not apparent from the note whether the social worker (Ms Jessica Perry) met with Paul. Some of the notes are difficult to interpret. Ms Perry was not called as a witness. 435 It was put to Cate in cross-examination that Cate had in the conversation agreed with concerns about Paul’s capacity, and she denied this. Her evidence was to the effect that she understood from Ms Perry that Ms Perry had been informed by Paul’s primary social worker that there were some concerns ‘in the background’ which resulted in Ms Perry coming to see Paul.323 The effect of Cate’s evidence is that she infers Ms Khambatta had been spoken to or communicated with by Lynn. 436 I think it is unlikely, and I do not find, that Cate expressed positive doubts about Paul’s capacity on this occasion, although she may have gone along with the idea that there should be documentation obtained in relation to capacity. As to the impetus for a discussion about capacity, whilst it likely came from Ms Perry (who likely had spoken with Ms Khambatta), it is not possible to make a finding as to the way in which the concern was expressed, or the level of concern, nor whether it was contributed to by some discussion with Lynn. 437 Lynn’s evidence was she only sent one text message to Ms Khambatta and she does not recall making phone calls to Ms Khambatta until after the will was made.324 In the absence of hearing from Ms Perry (and bearing in mind Ms Khambatta did not give evidence), I am unable to make a positive finding one way or the other as to whether Lynn spoke by phone with Ms Khambatta at around that time. 438 In her affidavit, Cate did not give evidence about the conversations or excerpts of conversations she recorded with Paul on 8 February 2021. I draw no adverse inference as a result of this. There was a question whether they would be admitted into evidence and, in a sense, they speak for themselves. 322 Exhibit R22, p 985. 323 Tr 433, and see also Cate, [182]. 324 Lynn, [187], Exhibit R38. -- 106 of 192 -- [2026] SASC 115 B Doyle J 105 439 I have listened to the conversations (or parts of conversations) that comprise ten of the audio files forming part of Exhibit A19, and compared them with the transcripts, which seem substantially accurate. The transcripts assist while listening to the files, but it is the audio that captures the nature, timing, quality and mood of the interactions. 440 There are moments in the course of the discussions in which Paul appears to veer off on a tangent, and there are also some instances where it is clear he has become seriously confused. The most obvious example is when he asks Cate whether she had met his (deceased) parents ‘yet’,325 the obvious implication being that he had momentarily forgotten that they had died. Cate politely pointed out that they are not around and suggested, shortly thereafter, that perhaps his false memory of a communication with them was part of a hallucination.326 441 Paul appeared to comprehend and be able to re-orient himself in time. Earlier in the conversation, Paul had been able to clearly express his wishes that he preferred a cremation and he ‘certainly’ did not want a religious service, because it would not ‘reflect what I think’. 442 A little later, Paul appeared to be able to recount having seen Dr Liew and the nature of the treatment he was given. Cate and Paul discussed whether that had helped or may have contributed to his bad turn, with Paul responding, at one point, ‘Well, you did say go and see Alex’, obviously referencing a discussion that they had earlier had. Paul explained that independently of any treatment he had been declining and that was why he decided to go and see Dr Liew again. 443 It may also be observed that in the course of a discussion early on 8 February 2021, Cate appeared to float the question of whether she and Raj should both be mentioned as beneficiaries.327 Without the preceding part of the discussion, it is difficult to know whether the discussion evolved organically, or at Cate’s initiative. As explained elsewhere, I find that Cate became, generally speaking, motivated to assist in the realisation of what she understood to be Paul’s desire to benefit her. No doubt there was an element of self-interest at play. However, as I also explain elsewhere, that is not incompatible with being highly motivated to care for Paul and ultimately respectful of his wishes, nor is it akin to a finding that she exerted improper pressure or influence on Paul. There was no case of undue influence advanced, and no sufficient evidential foundation for one. 444 In the discussion just mentioned, in the context of Cate’s mention of herself and Raj, it appears that Paul exercised independent and critical thought by observing that it should ‘just be Cate. Because whatever you get, Raj gets’. 445 In a discussion a little later on, Paul proffered that there was one other thing he had subsequently thought of since the note had been written on Saturday, 325 Exhibit A19, ‘03. Cremation’. 326 Exhibit A19, ‘04. Phone messages’. 327 Exhibit A19, ‘02. Will’. -- 107 of 192 -- [2026] SASC 115 B Doyle J 106 namely, ‘my mother’s jewellery that … she inherited from her mother’.328 He said that would need to be added to the things in the list, and used the word ‘incidentals’ (tending to support that this was his language in the note). Cate asked him whether he wanted to allocate particular things to certain people or whether he wanted it all put together in the estate and divided between five. He commenced by expressing a preference for the latter and then said he hadn’t decided yet. 446 Cate inquired whether he was thinking of dividing things between three or whether he wanted to divide it between five. After a short discussion of this topic, Paul asked whether they could leave that discussion. Cate said they did not need to do it today at all and that he would be discussing it tomorrow with the social worker. Cate invited Paul to think about what he wanted in relation to his care, his directives and his wishes and values, so that he was not overwhelmed tomorrow when the social worker visited.329 447 In the context of Cate mentioning that she had briefly visited her mother the previous evening, Paul asked ‘How is she by the way? She’s going well?’. Cate then gave a response describing her mother’s health, wellbeing and care arrangements. Paul appeared to follow this discussion and followed up with ‘But generally she’s managing?’ and an inquiry as to whether she was ‘cheerful’. Paul inquired whether she spent her time in a chair or in bed, and after Cate made clear she was able to sit in a chair, Paul made a light hearted remark ‘Well, that’s that’s, that’s better than me’. Shortly after this Cate commented that with the bleeding he was feeling week and losing a bit of power but that his brain was ‘going well’, to which he responded, ‘Well, at times’. 448 Overall, my impression of the recordings is that whilst Paul made occasionally incoherent comments, and was occasionally confused, he was also at other times capable of holding concentration and engaging in reasonably lucid and sometimes insightful, sometimes reflective and sometimes humorous discussion. The warmth between Cate and Paul is apparent from the discussion. At one point Paul, acknowledging that Cate would have to leave briefly to move her car, expressed his desire for her to come back if she was happy to do so. Events of 9 February 2021 449 During the course of 9 February 2021, Paul was visited by Cate, Lynn and Maurice, Ms Ikon and Ms Khambatta. Ultimately, Ms Khambatta made a phone call to Ms Cortazzo in order to organise her to attend to assist in preparing a will. As has been mentioned, Ms Ikon also made contact with a solicitor, Ms Benge, about possibly assisting with a will. Although it may not be central to the dispositive issue, there is some contention, or at least some confusion, about the precise sequence of these events. Before addressing those interactions, it is convenient to address the medical evidence. 328 Exhibit A19, ‘08. Jewellery & divide bt 3 or 5’. 329 Exhibit A19, ‘09. News confronting-final wishes’. -- 108 of 192 -- [2026] SASC 115 B Doyle J 107 Hospital observations 450 A nursing note made at 3.12 am reported Paul to be comfortable and ‘[o]rientated when awake’.330 Oncology observations 451 Dr Takhar, Dr Lim and Dr Sansome (accompanied by some medical students) saw Paul in the morning as part of the Medical Oncology Ward Round.331 Dr Sansome’s initial note was entered at 8.29 am but he updated it at 12.11 pm. Dr Takhar had an independent recollection of this consultation, which he described in these terms:332 [45] During this consultation, Mr Macdonald and I had a discussion about his infection because the additional blood culture result returned negative, indicating no further active infection. I explained that the antibiotics and blood transfusions that Mr Macdonald had received were only a temporary solution and that, in my view, his treatment should focus primarily on end of life care and symptom management. [46] Mr Macdonald indicated to me that he accepted this and agreed not to receive any further antibiotics or blood transfusions. [47] Mr Macdonald reported some abdominal pain, which I attributed to his liver metastases. He was also uncomfortable and had some trouble moving. [48] Mr Macdonald also reported that he had experienced some further hallucinations. He explained that the frequency of his visual hallucinations had reduced, but that he had experienced some auditory hallucinations the evening prior. Again, Mr Macdonald demonstrated and communicated to me that he had insight into these hallucinations. That is, he could distinguish them from reality. [49] Mr Macdonald was alert and orientated during my discussion with him on this day. He was not actively hallucinating at the time of my interaction with him. I did not identify any significant deterioration in his level of cognition from my first interaction with Mr Macdonald four days prior. [50] During this consultation, Mr Macdonald told us that he wished to make a will. I understood from my discussion with Mr Macdonald that this was a priority for him and that he wished to ensure that his affairs were in order before he died. [51] I did not have any doubts about Mr Macdonald’s capacity to execute a will. In our discussions, both on this day and on prior days, Mr Macdonald demonstrated an understanding about his condition and prognosis and an ability to reason in a logical and coherent way. [52] I considered Mr Macdonald’s desire to execute a will to be reasonable given his circumstances at that time. 452 Dr Sansome’s initial note of the consultation included, under the heading ‘P/’ (denoting plan), the words ‘SW to organise legal documents today’. The 330 Exhibit R22, p 989. 331 Exhibit R22, p 990. 332 Takhar-1, [45]-[52]. -- 109 of 192 -- [2026] SASC 115 B Doyle J 108 amendment he made a few hours later included the words ‘(he has capacity for this)’ immediately following that entry. In cross-examination, Dr Takhar indicated that whilst he could not recall whether testamentary capacity was explicitly discussed with Paul, the note reflected an observation he made and Dr Sansome recorded.333 He explained that his assessment of Paul’s capacity to organise legal documents was based on conversations that he had had with him about end of life care options, hospice care versus going home, and Paul’s ability to reason in a logical and coherent way about these options.334 His assessment included his observation about whether he had retained information presented to him previously.335 In re-examination, Dr Takhar said that the ability to retain and recall information was a key aspect of cognitive function.336 Social worker’s observations 453 The medical records contain a note prepared (or entered into the electronic patient record system) by Ms Khambatta later on 9 February 2021, but in respect of an interaction that likely occurred from around 8.30 am in the morning.337 The note records: Revisited Paul this morning his niece and her brother were present, social worker discussed about organising a lawyer after talking to the medical team about the cognitive capacity and whether Paul could make a will. Paul requested social worker to wait for Cate who was finding a parking. Met with Cate and Paul’s neighbour. Paul was not keen for public trustee to be involved and requested social worker to organise a pvt lawyer, A lawyer has been organised to come to the hospital tomorrow around 12 pm. Social worker to provide support as required. 454 Of course, Paul did not have a niece. The respondent submits that the reference to a niece and her brother was in all likelihood to Lynn and Maurice. I return to that question below. Palliative care observations 455 Dr Cursaro saw Paul in the mid-afternoon with a consultant, Dr Toula Christou. Dr Cursaro’s evidence was that the consult note forming part of the medical records was accurate.338 Dr Cursaro’s evidence was that, during the consultation, there were a few people in the room, including Paul’s friends Cate and Sofie (Ms Ikon). Her understanding was that Paul’s cousin Lynn had been there earlier in the day but was not present at the time of the consultation. 456 Dr Cursaro had a further discussion with Paul about the different hospice options available to him, including the three public hospices, Flinders Medical 333 Tr 708.6-13. 334 Tr 708.14-29. 335 Tr 709.9-13. 336 Tr 712.26-36. 337 Exhibit R22, p 1014. The note refers to a date of service of 8.30 am and records the activity as having a duration of 90 minutes. 338 Exhibit R22, p 993. Whilst she agreed that she could not recall specific statements made by Paul on this occasion, her evidence was based on her general recollection of events: Tr 671. -- 110 of 192 -- [2026] SASC 115 B Doyle J 109 Centre, Modbury Hospital and the QEH, in the context of where the various parties lived in Adelaide. The consult note records that as Paul’s next of kin, Lynn would be involved in discussion about the hospice options and that Paul was ‘happy with this’. The note goes on: Cate couldn’t recall discussing options of hospice with Lyn[n]. Plan to discuss with Lyn[n] tomorrow on ward. Cate messaged Lyn[n] to let her know. Plan to list for hospice after this discussion regarding which hospice if he remains suitable. 457 I interpolate that, consistently with this note, Cate texted Lynn at 1.53 pm, saying: Hi Lynn. Palliative care are here. Do you have a preference for hospice? The options are QEH @ Woodville, Modbury hospital & Flinders. Palliative care are wondering what time you will be here tomorrow? 458 The following exchange then occurred: Flinders is too far for me Cate, QEH too. [Modbury] is my first preference I guess Not sure what time. Do they need me? Oh okay, Lynn. Modbury has very old facilities and flinders is new. I thought Flinders was closer to Stonyfell. I will pass that on. No, they do not need you, I just said to them that you may be here tomorrow. Modbury is so very very far for me. I am staying at Aldinga and Mum is at Fullarton. In the meantime he will stay here. He is so tired this afternoon. Would QEH be closer to you? No. QEH is at Woodville. That’s too far for you also. Where is George? At Fullarton Did Paul tell you he had a bit of lunch? Yes that’s why I left he wanted to sleep He had his soup and some veggies while Sophie was here. He is sleeping now. Hi Lynn. Have just looked it up on a map. Yes I can see Stonyfell lies in between Modbury and Flinders, which is at Bedford Park. Fullarton is about 10/15 minutes from Flinders and on the same side of town. I don’t know if that helps? Where is Maurice? Yes but Maurice lives near Gawler! Oh dear, I did not realise. 459 Dr Cursaro’s evidence was that when she saw Paul on 9 February 2021, he was physically frail, but she did not have any concern about his decision-making capacity at that time. He was able to participate in the conversation and understand -- 111 of 192 -- [2026] SASC 115 B Doyle J 110 the options available to him. She reviewed the note made by the oncology team earlier in the day recording their view that he had capacity to complete the legal documents that he wished to complete.339 Not having observed any decline in Paul’s capacity or cognitive function from the previous day, she agreed with that assessment.340 The palliative care consult note records that Paul was orientated to ‘RAH, year, month’ and ‘[a]ware of events today and plan for hospice’, albeit with ‘[i]mpaired attention’.341 460 A nursing note made after 9.00 pm that evening noted that Paul had had visual and auditory hallucinations that shift (and was not orientated as to place), albeit that the note records that he had been sedated, apparently following a visit from Cate earlier in the evening.342 Interactions involving social worker and Cate, Maurice, Lynn and Ms Ikon 461 As earlier observed, there is disagreement or confusion about the comings and goings of the people who interacted with Paul in the course of 9 February 2021. Cate’s evidence 462 Cate said, again assisted by photographs, that she arrived a little while after the first car park she photographed at 8.19 am.343 When she arrived, Lynn and Maurice were sitting near the elevators outside Paul’s room. They said they had been in to see Paul with Ms Khambatta earlier that morning to discuss the preparation of his will, but that Paul did not want to discuss the will without her present. They said Ms Khambatta had been called to see another patient and would return to see Paul later.344 463 Cate gave evidence, by reference to text messages exchanged with Ms Ikon, that Ms Ikon messaged her shortly after 8.15 am asking if she needed a break or company and requesting Cate to say hi to Paul.345 At some stage after this (it is not possible to tell how long after, but it can be inferred that it was not more than an hour or so), Cate responded saying he was quite good this morning and had stopped bleeding. Cate asked if Ms Ikon was coming in that day. Ms Ikon responded positively, saying she would work around what worked best for Cate, Lynn and Paul. The exchange continued (Cate on the right, Ms Ikon on the left): He is good in the mornings and afternoons after a sleep. He is getting weaker each day and has occasional hallucinations – which he seems to be aware of. Sooner than later I think Sophie. 339 Cursaro-1, [25]-[26]. 340 Cursaro-1, [27]. 341 Exhibit R22, p 993. 342 Exhibit R22, p 1015. 343 Cate, [185]-[186]. 344 Cate, [186]. 345 Cate, [187], Exhibit R41. -- 112 of 192 -- [2026] SASC 115 B Doyle J 111 Ok I’ll shuffle around some meetings today and drop in Thankyou Let me know if you need anything Look forward to seeing you. 464 Cate’s evidence is that Ms Ikon had attended the RAH later in the morning and that shortly after she arrived, Lynn and Maurice left. Cate’s evidence is that she and Ms Ikon and Paul had a discussion with Paul about his wishes for his will. Ms Ikon asked Paul what he wanted for his will and Paul said he wanted Lynn, Maurice and Cate to receive his estate.346 465 A subsequent message from Ms Ikon to Cate at 1.30 pm relayed that palliative care had just arrived, with Cate responding that she was five minutes away.347 Cate’s evidence is that she had left the hospital for a moment.348 466 Cate’s evidence was that when she returned the palliative team were discussing the hospice care options available for Paul, prompting her messages to Lynn (set out earlier).349 467 Cate’s evidence is that Ms Khambatta returned in the afternoon and told her and Ms Ikon that she had asked Lynn to contact her when Cate arrived but that this had not occurred. Ms Khambatta asked Ms Ikon and Cate whether Paul still wanted her to arrange an appointment with a solicitor to organise a will and they confirmed that he did. Ms Khambatta left to arrange a solicitor, and Ms Ikon left shortly after the conversation.350 468 The next series of messages appears to reflect messages exchanged subsequent to Cate and Ms Ikon’s interactions at the RAH, and commenced with a message from Cate to Ms Ikon at 3.14 pm (Cate on the right, Ms Ikon on the left): Hi Sophie. Are you able to arrange a lawyer to do Pauls will? Pramilla is trying to ring someone now but doesn’t’ seem to know what she’s doing! Ok I haven’t heard back from her so I’ll send her an email Would you like me to C[C] you in? If so what’s your email address? thank you. [email protected] Pramilla had a lunch break and is just now ringing around after I paged her - which is rather unhelpful given Paul does not have much time. We 346 Cate, [188]-[189]. 347 Exhibit R41. 348 Cate, [190]. 349 Cate, [191]-[193]. 350 Cate, [194]. -- 113 of 192 -- [2026] SASC 115 B Doyle J 112 unfortunately do not know how rapidly Paul will deteriorate. I feel for him. I wish he had this in place months ago. I hope he has his final wishes come through. Have sent Donna an email. Hopefully she can provide urgent assistance Ok thank you Sophie. Donna can discuss with him tomorrow and meet Thursday to sign 469 Cate’s evidence was that she asked Ms Ikon to arrange a solicitor because neither Lynn nor Ms Khambatta had done so and because Ms Ikon had said she had a friend who worked in the industry (which she understood to mean the legal industry).351 470 As was recorded earlier, at 4.06 pm that day, Ms Ikon emailed Ms Benge, a solicitor she knew at Piper Alderman, requesting assistance on the basis that ‘he would like to split the estate between his 2 cousins and his best friend (Cate, cc’d in email)’. She said that she saw him earlier and ‘whilst he is fragile and tired, he is still of sound mind’.352 471 Cate says that Ms Khambatta returned to the ward later that day and told her she had contacted Andersons Solicitors and made an arrangement for a lawyer from that firm to attend the RAH at midday the following day.353 This prompted a query by text message from Cate to Ms Khambatta at 6.37 pm:354 Hi Pramilla. Do you know if the solicitor from Anderson’s is coming tomorrow at 12 to write up and have Paul Macdonald sign or just to receive instructions? Cate 472 Cate says that Ms Khambatta did not respond. 473 She says that in the course of conversations with Paul before 10 February 2021, Paul expressed concern about leaving any of his estate to Lynn’s daughters, Natasha and Nicole. According to Cate, Paul said he had become aware at Christmas 2020 that one of Lynn’s daughters was in an abusive marriage and planning to leave her husband. Paul expressed a concern that if he left part of his estate to Natasha or Nicole individually, part might ultimately be received by their husband, which he did not want. Paul said he thought Natasha and Nicole should ultimately benefit through Lynn in the same way George, Louise and Raj would through each of Lynn, Maurice and her respectively. Cate says that whilst Paul asked for her guidance on this, she said it was not something she could or should comment on and it was the sort of thing he could discuss with his solicitor.355 In 351 Cate, [196]. 352 Exhibit R44. 353 Cate, [198]. 354 Cate, [199]. 355 Cate, [201]-[203]. -- 114 of 192 -- [2026] SASC 115 B Doyle J 113 cross-examination, Cate was not able to recall what if anything Paul had said by way of response.356 474 The respondent submitted that Lynn, Natasha or Nicole could have given evidence going, inter alia, to whether there was such a relationship issue. Lynn’s failure to address that issue, or whether she was aware of any such conversation over Christmas, and the applicants’ failure to call Natasha or Nicole, despite their being apparently available to give evidence,357 was said to entitle the drawing of an adverse inference. The applicants countered by pointing out that Lynn could have been but was not cross-examined on the topic. 475 To my mind, there is some doubt about whether the circumstances for the drawing of an adverse inference are present. No other witness could directly address whether Paul articulated this concern, even if they had knowledge of facts that might have been relevant to whether such a concern existed. In any event, the drawing of adverse inferences where the circumstances may allow it is not mandated.358 I am not persuaded to draw adverse inferences in this case. I prefer simply to ask myself whether, in light of Cate’s evidence as a whole, I am prepared to accept her recollection that such a conversation occurred. I indicate here that I am prepared to do so, but that conclusion is a function of a wider consideration of the evidence, and should not be understood as an isolated finding. 476 Recordings of three brief conversations between Cate and Paul on 9 February 2021 were received in evidence. Similarly to the recordings of 8 February 2021, they show that Paul was at times confused and at other times lucid and capable of reflective or light-hearted conversation. By way of example, he referred to his anxiety that he had not brought nail clippers into hospital and there was a discussion reflecting that his nails were long when he had always liked to keep them short. He joked that ‘the undertaker will do it’.359 Ms Ikon’s evidence 477 Ms Ikon said in her affidavit that she visited on 9 February 2021 to say her ‘final goodbye’ and that this was the first time she met Lynn and Maurice. Ms Ikon remembered speaking to a social worker on the same day she met Lynn. Ms Ikon’s affidavit stated that:360 The social worker explained to the family members what was happening and what the options were regarding Paul’s care. 478 This evidence suggests that Ms Ikon was party to a discussion involving Ms Khambatta and Lynn and Maurice (but apparently not Cate). Whilst Cate’s 356 Tr 443.14-23. 357 885.11-14. 358 Nominal Defendant v Rooskov (2012) 60 MVR 350; [2012] NSWCA 43 at [98] (Campbell JA, Young JA agreeing). 359 Exhibit A19, ‘12. Nail clippers-books’. 360 Ikon, [83]. -- 115 of 192 -- [2026] SASC 115 B Doyle J 114 evidence has Lynn and Maurice leaving shortly after Ms Ikon arrived, she also has Ms Khambatta returning later, after Lynn and Maurice had left. 479 Ms Khambatta’s note is capable of more than one interpretation including that she met first with Lynn and Maurice (assuming she mistook Lynn for Paul’s niece) and then later with Cate and Ms Ikon. I consider that Ms Ikon was incorrect in recalling being present for a discussion with Ms Khambatta and Lynn and ‘family members’ about care. It seems reasonably clear she has collapsed in her mind a number of distinct interactions. Her affidavit made no reference to any discussion with Dr Cursaro, but does include a discussion about care options, which is likely what was discussed with Dr Cursaro. As earlier noted, the record of Dr Cursaro’s attendance states that Ms Ikon was present, and text messages between Cate and Ms Ikon confirm this. In cross-examination, Ms Ikon accepted that she ‘got confused with the nurses and the social workers and the other people that were there’ and accepted that she ‘cannot place who was there, now’.361 Whilst she was unsure whether the timeline ‘fitted’,362 in my view the timeline does support the proposition that the discussion Ms Ikon recalled about end of life care was a discussion involving Dr Cursaro and for which Lynn and Maurice were not present. The text messages between Cate and Lynn also make it unlikely that Lynn had participated in a topic about the same subject matter earlier. 480 Apart from tending to indicate that Cate’s memory as to the sequence of events is reliable and that Ms Ikon’s is not, the question who was present when there was a discussion of end of life care is not of great moment. Of more moment is Ms Ikon’s acceptance in cross-examination that the email she sent to Ms Benge reflected her assessment made on the basis of a discussion involving Paul and Cate about Paul’s intentions regarding his affairs. She was clear in agreeing that it was her view that Paul had the capacity to make a valid will on the occasion that she saw him on 9 February 2021.363 Again, whilst that opinion cannot bind the Court, it supports a finding that in the discussion to which Ms Ikon was a party, Paul was able to indicate what he wanted in relation to his estate, and that nothing in the discussion of that topic caused Ms Ikon, as a relatively impartial observer with some familiarity of Paul’s personality and manner of expression, to consider that he lacked the capacity to make a decision about those matters. 481 She also confirmed in her evidence that the statement she made in her email to Ms Benge about Paul’s capacity had been the subject of considered reflection; she had discussed with work colleagues what should be included in the instructions to be provided.364 She obviously appreciated the importance that capacity might have in relation to the process of preparing a will. It was not an off-hand or spur of the moment observation. 361 Tr 522.21-23. 362 Tr 538.9-35. 363 Tr 536.23-26. 364 Tr 536.9-11. -- 116 of 192 -- [2026] SASC 115 B Doyle J 115 482 Whilst there is a difference between Cate’s evidence and Ms Ikon’s about the extent to which Cate was driving discussion about the will,365 Ms Ikon accepted in cross-examination that she gleaned what she gleaned about Paul’s intentions from a conversation in which Paul participated.366 It follows that Ms Ikon’s opinion about his capacity to make a will was based in part upon a discussion of that very issue of what he wished to provide for by way of his will. Lynn’s evidence 483 Lynn’s evidence concerning 9 February 2021 is unusual. In her affidavit she referred to having said in a previous affidavit (not tendered at trial) that she was not at hospital from 9 to 11 February 2021 due to being unwell.367 It then said that she could not now recall whether she was at the RAH on 9 February 2021 and that she ‘may have been’.368 That said, it is a little perhaps not very surprising that she would not recall particular dates of attendances unassisted by relevant records. 484 In any event, it is plain from the other evidence in the case that Lynn was present and likely more than fleetingly. Her message sent on 8 February 2021 suggested she would be present on 9 February 2021 but would need to depart before 2.00 pm, and the other evidence I have canvassed suggests she was likely present from earlyish in the morning. In cross-examination, she did not distinctly deny Cate’s account of an interaction with her at the RAH, but said instead that she did not ‘remember any of this’.369 485 It is not without significance that despite presumably having an opportunity to interact with Paul for a period of time on 9 February 2021, she gives no evidence that would contraindicate his cognitive or executive function on that day. I do not infer that her silence on this issue is in any way calculated. I simply infer that nothing significant occurred whilst she interacted with Paul which would have been of relevance to her case that he lacked capacity. One might expect he to have recalled if she had had a telling interaction with Paul (so far as capacity is concerned) the day before he executed the will. Maurice’s evidence 486 Maurice gave brief evidence of his memory of interactions with Paul on 9 February 2021.370 His evidence is consistent with witnessing Paul hallucinate, and is also to the effect that Paul was very weak. Whilst I accept that Paul was hallucinating periodically, I place little weight on Maurice’s evidence as giving a comprehensive overview of Paul’s cognitive state more generally because Maurice’s evidence does not address how Paul interacted when, as appears to be the case, Ms Khambatta discussed various matters with Paul in his presence. 365 Ikon, [88]-[89]. 366 Tr 530, 533-534. 367 Lynn, [188]. 368 Ikon, [189]. 369 Tr 896.15. 370 Maurice-1, [138]-[141], [143]-[145], Maurice-2, [9]-[11]. -- 117 of 192 -- [2026] SASC 115 B Doyle J 116 487 Maurice accepted in cross-examination that by 9 February 2021 he would have been aware that steps had been taken to try to document how Paul wanted his estate disposed of.371 He accepted he knew by 9 February 2021 that the social worker was trying to organise a lawyer to make a formal will.372 It was put to him that, despite this, he had not, in any of the various messages he was exchanging around that time, expressed a question about Paul’s testamentary capacity.373 He answered this with the proposition ‘I’m not a lawyer’.374 That is true, but the context is that he and Lynn had been exchanging text messages critical of the way in which some of the health professionals had delivered bad news to Paul. Maurice had in that context described some of them as ‘heartless’ and ‘just smug careerist arseholes’.375 It is difficult to accept that Maurice would have been reluctant to express views he held on the topic of whether it was appropriate for the plan to produce a will to be progressed if he had strongly held such a view. Whilst of course the question of capacity is for the Court and cannot be the subject of a binding admission, Maurice’s failure to express concerns tends to support that notwithstanding occasional hallucinations or tangential or irrelevant comments, he also had lucid interactions with Paul and that they did not cause Maurice to believe that Paul had lost the capacity to reason in the sense of reflecting on his own preferences, making decisions and conveying them. Ms Khambatta makes contact with Ms Cortazzo 488 Whilst Ms Khambatta did not give evidence and her note appears to suggest that, at some point on 9 February 2021, she expected a solicitor to attend the following day around 12.00 pm, there is no reason to doubt Ms Cortazzo’s evidence as accurately recording the effect of her discussion with Ms Khambatta in the late afternoon of 9 February 2021. 489 Ms Cortazzo was informed that Ms Khambatta had a patient who was ill with cancer and needed a will prepared. When asked whether he had capacity, Ms Khambatta said that he did.376 Ms Cortazzo provided Ms Khambatta with a quote and said she could attend the following morning. Ms Khambatta agreed to call in the morning to confirm timing when she had spoken with Paul.377 Findings 490 In the course of 9 February 2021, Paul met or interacted with several persons and discussed the preparation of a will with several of them. Relevantly: • during the morning he told Dr Takhar, Dr Lim and Dr Sansome that he wished to make a will and conveyed that that was a priority for him. 371 Tr 616.24. 372 Tr 616.29. 373 Tr 617-18. 374 Tr 618.3. 375 Exhibit R37, Tr 615.24-36. 376 Cortazzo, [9]. Ms Khambatta’s statement was received for narrative purposes, and by agreement was not relied upon for the truth of the opinion expressed by her: Tr 249.22-24. 377 Cortazzo, [9]. -- 118 of 192 -- [2026] SASC 115 B Doyle J 117 Dr Takhar did not have any concerns about his capacity. Dr Sansome also made a note to the effect that Paul had capacity; • during the morning Ms Khambatta participated in a discussion with Paul whilst Lynn and Maurice were present in which there was a discussion about the preparation of a will; • Maurice did not express the view that Paul lacked capacity, and, although he now believes that to be the case, I find he did not form or hold such a view on 9 February 2021; • Lynn did not observe anything in Paul’s conduct that caused her positively to form or express the view on 9 February 2021 that Paul lacked capacity; • Ms Ikon was present for interactions with Paul and as well with Ms Khambatta and Dr Cursaro. Ms Ikon also participated in a discussion with Cate and Paul in which some of Paul’s testamentary intentions were discussed. Ms Ikon formed and contemporaneously expressed the view that Paul had capacity; and • Dr Cursaro met with Paul on 9 February 2021 and formed the view that Paul had capacity to complete the legal documents he wished to complete. 491 The evidence also revealed that Ms Khambatta expressed the view to Ms Cortazzo based on her interactions with Paul on the day that Paul had the capacity to make a will, but in accordance with the limited basis upon which Ms Cortazzo’s evidence of Ms Khambatta’s oral statement was received, I place no reliance upon this, save that the fact of the communication informs any criticism that may be made of Ms Cortazzo’s approach. 492 These interactions tend to support a conclusion that despite hallucinations and moments of confusion or even incoherence, at various times throughout the course of 9 February 2021, Paul engaged in sensible conversation which did not cause those with whom he interacted to doubt his cognitive capacity. Events of 10 February 2021 493 On 10 February 2021, Ms Cortazzo attended on Paul and prepared a will which he later executed. Cate also had interactions with Paul throughout the course of the day. Ms Ikon visited twice. Lynn and Maurice did not visit but Lynn spoke to Dr Cursaro by phone and exchanged texts with Cate. The ‘lads’ (some of Paul’s male friends) visited in the middle of the day. Before turning to those interactions, I refer to the medical evidence. -- 119 of 192 -- [2026] SASC 115 B Doyle J 118 Hospital observations Medications 494 Because it was relevant to the opinion expressed in Dr Hecker’s report and was explored in some detail in cross-examination, it is convenient to note what the records say about the medications received by Paul on 10 February 2021. Amongst the hospital records is a record of medications ordered. That record also indicates when medication was administered or delivered (‘performed’). 495 Relevantly, it shows that on 10 February 2021, Paul received:378 • 75 mg pregabalin at 9.25 am; • 0.5 mg hydromorphone at 11.10 am; • 1 mg hydromorphone at 1.29 pm; • 75 mg pregabalin at 7.45 pm; and • 1 mg hydromorphone at 7.28 pm. 496 Pregabalin is used to treat neuropathic (nerve) pain. It blocks or reduces the release of certain neurotransmitters.379 Hydromorphone is an opioid analgaesic which is more potent than morphine. It is used to manage moderate to severe acute or chronic pain. As Dr Cursaro explained it can cause drowsiness, confusion, a lack of understanding of decisions and, subject to dosage and the passage of time, could therefore interfere with executive functioning and capacity.380 497 Dr Cursaro’s evidence was that 1 mg was not a high dose381 and 0.5 mg was a ‘very low’ dose.382 The effects of hydromorphone could wear off within an hour.383 498 Ms Cortazzo’s attendance upon Paul to take instructions must have occurred before the first dose of hydromorphone and her second attendance must have occurred after the second dose of hydromorphone but before the third. As will be noted, Dr Cursaro visited Paul after the second dose (but before Ms Cortazzo’s second attendance) and did not observe him to be adversely affected by that second (stronger) dose at that time. Nursing observations 499 A nursing note prepared before 5.00 am observed that Paul appeared to have slept well overnight in between nursing interventions. He was described as 378 Exhibit R22, pp 1062-1063 and 1066-1067. 379 Exhibit R19. 380 Tr 676.25-677.26, cf. Tr 681-682. 381 Tr 683.21. 382 Tr 682.34. 383 Tr 684.23. -- 120 of 192 -- [2026] SASC 115 B Doyle J 119 ‘pleasantly confused’ but ‘easily reorientated’. The note records that he had been hallucinating (or perhaps remembering a dream about) a ‘Korean show on and people are dying … dying’.384 500 A nursing note made in the early afternoon recorded that Paul was alert and orientated to time and place, with some communication issues and ‘nil hallucinations today’.385 501 A nursing note made just prior to 5.00 pm described Paul as slightly confused.386 Oncology observations 502 Dr Takhar, together with Dr Sansome, an RMO and some medical students, saw Paul before 9.00 am on 10 February 2021. The notes prepared by Dr Sansome refer to hallucinations having occurred overnight.387 The observations recorded were that Paul was oriented to year (not day/month) and place, with insight into why he was in hospital and that he had terminal cancer with a limited prognosis and was contemplating transfer to hospice for end of life care. The notes record ‘Currently competent to give legal instructions’, language that is repeated in the letter bearing his name but signed by Dr Sansome.388 503 Dr Takhar’s evidence was that at the time he reviewed Paul he was not hallucinating and was ‘alert and engaged in our discussion’.389 Dr Takhar confirmed in his evidence that he had been made aware that the deceased was meeting with lawyers to prepare a will that day and did not have any concerns about his capacity to do so.390 Dr Takhar did not have any involvement in the preparation of the letter of that day addressing capacity and his evidence was that had he been asked he would have authored and signed it himself. He did however agree with the contents of the letter and would have been prepared to sign a letter attesting to his capacity to make a will had he been asked, though he would not have used the phrase ‘competent to give legal directions’.391 Dr Takhar’s evidence was that based on his medical observations and conversations with the deceased that he had no reason to believe that Paul was not capable of understanding the extent of his assets or the friends and family who might benefit from them.392 In his interactions with Paul he considered Paul ‘demonstrated an ability to reason logically and coherently’.393 384 Exhibit R22, p 1016. 385 Exhibit R22, p 1024. 386 Exhibit R22, p 1027. 387 Exhibit R22, p 1017. Dr Takhar confirmed that the notes accorded with his recollection of the consultation: Takhar-1, [68]. 388 Exhibit R22, pp 1017, 1043. 389 Takhar-1, [56]. 390 Takhar-1, [59]. 391 Takhar-1, [60]-[63]. 392 Takhar-1, [64]-[65]. 393 Takhar-1, [66]. -- 121 of 192 -- [2026] SASC 115 B Doyle J 120 504 Dr Takhar’s evidence was that:394 Mr Macdonald’s transitory hallucinations, as reported to me, did not alter or call into question Mr Macdonald’s level of cognition or ability to reason based upon my medical observations of him. Although Mr Macdonald was acutely unwell upon his admission to hospital due to his anaemia and disease progression, his condition had stabilised by 10 February 2021 following treatment with blood transfusions. 505 In cross-examination, Dr Takhar said that his views about Paul’s capacity on 10 February 2021 were not simply carried over from views formed previously but included the fact that Paul had retained information that had been presented to him before and that he gave logical and coherent reasons for choices he made.395 That said, Dr Takhar agreed that the views he expressed about capacity were developed in the context of discussions with Paul not about his estate but his end of life care wishes, and he also agreed that capacity was ‘task specific’.396 Social worker observations 506 Ms Khambatta saw Paul in the morning as well. Her note, apparently made or entered in the patient record system at 9.10 am, stated:397 Revisited Paul this morning, Paul was keen to see a lawyer , social worker has organised for a lawyer, phone call made to the lawyer to request for an early visit , the lawyer was happy to come in at 9.30. Social worker to provide required support. Had a discussion with the medical team about Paul cognitive capacity to complete legal documents, the team assessed and said Paul was okay to make the documents and felt the sooner th[e] better due to his poor health. 507 The note suggests that Ms Khambatta’s interactions with Paul either preceded or overlapped with the time that Dr Takhar and Dr Sansome saw Paul. It also confirms that, independently of Cate, Paul was conveying his interest in progressing the preparation of a will. 508 A later note prepared by Ms Khambatta, entered in the patient record system in the late afternoon, but obviously relating to earlier interactions (which, according to the record, extended to 110 minutes), stated:398 Lawyer came in around 9.30 and had a discussion with Paul and drew up a temporary will for the interim and was to get back to organise a proper will, social worker requested the lawyer to get a witness as hospital staff cannot witness the document, the lawyer said she would come back later today and organise a final will and she will try and get a witness. Social worker also had a long chat with Paul prior to the lawyer coming in had a talk about his wishes, asked if he wanted to have a visit from the priest, he was not too keen. Discussed about funeral plans and if he had any special wishes, he was worried about the 394 Takhar-1, [67]. 395 Tr 709.2-13. In re-examination he explained that the ability to retain information and recall information was a key aspect of cognition: Tr 712.33-36. 396 Tr 710.10-23. 397 Exhibit R22, p 1018. 398 Exhibit R22, p 1026. -- 122 of 192 -- [2026] SASC 115 B Doyle J 121 belongings in the house, he not only has his own stuff but also had his mother’s and father’s belongings: he felt very bad that he could not return back home. He said he would have a chat with his friend and niece and sort out all the issues. Social worker also discussed about hospice and his preferences. Paul was a bit too tired and the nurses came to provide personal care. 509 As was the case with one of Ms Khambatta’s earlier notes, I find her reference to a niece reflects a mistaken assumption that Lynn was Paul’s niece rather than cousin. Palliative care observations 510 Dr Cursaro saw Paul on three occasions on 10 February 2021.399 511 The note which records the first two interactions Dr Cursaro had contains the following observations.400 Background analgesia: Regular pregabalin. PRNs in last 24 hrs: single hydromorphone 0.5mg breakthrough this morning, nil other in previous 24 hours. Paracetamol x1. S/ Initially very drowsy post hydromorphone. Friend Cate visiting. Later after calling Lyn[n], seen again with other work friends present and eating chocolate bar and much more alert. Some pain today but responding to prn. Fatigue and weakness remain main symptoms. Only managed small amount of breakfast. Phone call to Lyn[n] – cousin. Her initial preference was for Modbury and didn’t think the shared rooms would bother Paul. Against FMC option due to location and difficulty for cousins to visit regularly. Further discussion with Paul with work friends present (with his consent). Feels his priority is for a single room. Also wants location that Lyn[n] will be able to visit him. Not wanting for Modbury Hospice due to shared rooms. Discussion regarding QEH vs FMC. Leaning towards QEH. Feels that if Lyn[n] were able to visit there then this might be best. Will consider further and make final decision. Currently able to make this decision himself. Phone call back to Lyn[n] to advised [sic] that Paul doesn’t want Modbury but is considering QEH. Happy with option and feels she could visit him there. Aware that Paul is considering this currently but appears to be leaning towards this. O/ 399 Dr Cursaro’s affidavit described two occasions (Cursaro-1, [28]), but she clarified in oral evidence that there were two visits during the morning (Tr 647.26). 400 Exhibit R22, p 1022. The note appears to have been entered into the patient record system at 12.45 pm. -- 123 of 192 -- [2026] SASC 115 B Doyle J 122 Initially drowsy when Cate present. Later when reviewed, more alert. Sitting up in bed eating cherry ripe chocolate bar. Able to follow conversation slowly and understand the issues as above regarding hospice. A/ Ongoing fluctuation delirium but currently able to make decision regarding discharge location. Currently comfortable. … Recommendations: Likely plan appears to be hospice at QEH but waiting on final confirmation from Paul. Palliative care to continue to review and will return to confirm this with Paul. Please notify palliative care if more urgent input required. Continue Hydromorphone 0.5-1 mg subcut 1 hrly PRN for pain. … 512 Dr Cursaro could not recall the precise timing of these two attendances but the reference to hydromorphone in the initial consultation suggests that it was likely in the late morning ‘very soon’ after the first 0.5 mg dose of hydromorphone which is recorded as having been administered at 11.10 am.401 The second attendance was obviously when Paul’s friends attended (whom Paul described as ‘the lads’, a label others adopted). As will be explained below, it is evident from text messages exchanged between Cate and Ms Ikon that they visited some time in the late morning. Dr Cursaro could not recall their names but in her affidavit said that there was a ‘lovely feel in the room’.402 Dr Cursaro’s evidence on the topic of capacity was in these terms: [31] Mr Macdonald was initially quite drowsy as a result of the administration of his hydromorphone, which is [a] very strong pain killer used in palliative care. However, Mr Macdonald was more alert when I returned. [32] I did not believe that Mr Macdonald’s hydromorphone interfered with his capacity. That opinion might have been altered if Mr Macdonald had remained drowsy throughout the entirety of my interactions with him. However, this was not the case. [33] I did not have any concerns about Mr Macdonald’s capacity on 10 February 2021. [34] On this day, I had a further discussion with Mr Maconald about the different hospice options available to him. I recall that there was an ongoing difference of opinion at this time about where Mr Macdonald should receive his hospice care. Because the various parties lived in different parts of Adelaide, they wanted different things. 401 Exhibit R22, p 1066. See Tr 683.37. 402 Cursaro-1, [30]. -- 124 of 192 -- [2026] SASC 115 B Doyle J 123 [35] I had a further discussion with Mr Macdonald about which hospital he wished to go to for his hospice care. Mr Macdonald made it clear that he wanted his own room. He did not wish to go to Modbury Hospital for this reason. [36] Mr Macdonald also made clear that he wished to be in a location which would allow his cousin, Lynn, to visit him. He favoured the Queen Elizabeth Hospital over Flinders Medical Centre for this reason. The various parties, including Lynn, were accepting of this. [37] Mr Macdonald was able to make these decisions himself. He was able to, and did, clearly articulate his wishes and the rationale for these. [38] Mr Macdonald’s ability to consider the different options available to him regarding hospice care and weigh his own wishes against the competing opinions of other people demonstrated to me that he retained capacity in this domain. This filled me with confidence. It also resolved the difference of opinion about where Mr Macdonald would go for hospice care because we could simply give effect to his wishes. 513 Dr Cursaro thought the discussion was between 20 and 60 minutes in duration.403 514 Dr Cursaro returned to see Paul later in the afternoon ‘to confirm that he was happy’ to be referred for hospice care at the QEH.404 The note of this attendance, very shortly after her attendance at around 3.30 pm,405 recorded that Paul was ‘[h]appy with this plan’. The deceased was recorded to have been aware that there could be a delay due to bed availability and that palliative care consults would continue at the RAH whilst he was awaiting a transfer to hospice.406 515 Dr Cursaro could not recall any difference in Paul’s presentation from the earlier visit and would have recorded it had there been any clinically significant difference.407 As noted earlier, Paul had received a further 1 mg dose of hydromorphone at 1.29 pm. 516 Dr Cursaro’s evidence contained a summary of what she understood to be required for the purposes of testamentary capacity in a way that is consistent with the legal concepts involved. Her evidence directed to the question of capacity on 10 February 2021 was in these terms:408 [48] I was not asked to and did not assess Mr Macdonald’s testamentary capacity. My medical observations of the manner in which Mr Macdonald was able to weigh the competing views of Lynn and Cate concerning the location of his hospice care and to make his own decision about where to receive hospice care having regard to their 403 Tr 675-676. 404 Cursaro-1, [39]. 405 Cursaro-1, [39], corrected at Tr 648. 406 Exhibit R22, p 1025. 407 Cursaro-1, [40]. 408 Cursaro-1, [48]-[49]. -- 125 of 192 -- [2026] SASC 115 B Doyle J 124 differing views would be supportive of one aspect of the test for the assessment of testamentary capacity. [49] I was aware on and from 9 February 2021 that the Medical Oncology team’s note recorded that Mr Macdonald had capacity to complete legal documents. On 9 February 2021, I knew the test for testamentary capacity and I knew that Mr Macdonald planned to sign a will. I did not have any reason to doubt that the note of the Medical Oncology team recording that Mr Macdonald had capacity to complete the proposed legal documents accurately reflected Mr Macdonald’s capacity at that time. If I had any doubt, I would have conducted my own assessment of that matter. Nor did I have any concern that Mr Macdonald did not have decision making capacity at any time during the course of my interactions with him between 8 February 2021 and 10 February 2021. Interactions with Cate and Ms Ikon Cate’s evidence 517 Cate’s evidence is that she visited Paul in the morning and that shortly after this Ms Khambatta informed them that a solicitor would be coming in to see Paul that morning. She said that Cate should not be present whilst the solicitor was with Paul.409 Ms Ikon had sent a text message to Cate around 8.23 am asking Cate to ring and Cate responded informing Ms Ikon that the social worker had arranged someone to come in that morning. Her message indicated that Paul was ‘quite good this morning but he gets tired in the afternoons’ and that Cate understood ‘the lads are coming in today’. She asked whether Ms Ikon was popping in. Ms Ikon offered to come in to be there with the lawyer but Cate responded that the lawyer was already there. 410 518 Commencing at around 8.41 am, Cate and Lynn exchanged a number of messages including the following (Cate on the right, Lynn on the left):411 Hi Lynn. Have just walked in. I’m very tired today Cate. I won’t be able to come in. I think it’s emotional Hi Lynn. Yes I understand. It is a difficult time for you. I had a migraine last night which I have not had for decades. I am feeling better this morning. Paul is good this morning. I brought in a protein up and go for him, as I know he used to drink them all the time and he is disinterested in their breakfast choices. Hopefully he will take some lunch. I think by diner time he has faded. Take care today. Cate He was confused when I talked to him this morning Cate 409 Cate, [205]. 410 Cate, [206], Exhibit R41. 411 Cate, [207], Exhibit R39. -- 126 of 192 -- [2026] SASC 115 B Doyle J 125 There is a lawyer in there with him now. I am outside. I hope he is okay otherwise it will go to the Public Trustee. I would feel sad for him if that was the case. I know he does not want that. He spoke clearly to me earlier. 519 The assumption underlying Cate’s last message in that sequence is incorrect, but it was not suggested to her that it was not the view she held at the time. This sequence of messages must have extended over at least half an hour. I interpolate that Lynn’s evidence was that Paul had referred to his father in terms suggesting he was confused about the fact that he had died some time ago, and that this was why she had said to Cate that Paul had been confused.412 In her affidavit she said she did not know Paul was going to sign a will ‘at this time’,413 although it is clear from the messages that she was informed Paul was being visited by a lawyer. 520 At 9.23 am, Cate emailed Ms Benge indicating she would not need to attend.414 Cate’s evidence is she went to the café and was not present when the solicitor first arrived. She returned around the time the solicitor was coming out and she had a brief discussion with Ms Cortazzo. 521 Cate described an interaction with Ms Cortazzo in which she informed Cate that Paul had expressed the desire that Cate be sole executor but that she had explained to Paul this was a big job with which she may need help given she lived in Queensland. This surprised Cate. Ms Cortazzo relayed that Paul had wanted to speak with Cate. Cate then discussed that topic with Paul briefly and explained she was happy to be executor with Lynn. Ms Cortazzo went back into the room. While Ms Cortazzo was there Ms Khambatta arrived and entered the room. Arrangements were then made for a witness to be found. 522 Cate was informed that a temporary will had been signed and Ms Cortazzo asked Cate what she had understood to be Paul’s wishes, which Cate relayed. Ms Cortazzo said this aligned with what Paul had told her. Ms Cortazzo then left. Cate says she then spoke further with Paul who told her that he had made the temporary will appointing her and Lynn executors.415 523 Cate then exchanged the following messages with Ms Ikon (Cate on the right, Ms Ikon on the left), commencing at around 11.17 am:416 Hi Sophie. The lawyer came and they got a volunteer downstairs to sign as an independent witness. After, She asked what he had said to me. I told her what he had said to us yesterday. Divide equally between Lynn, Maurice and me. Lynn and I are executors. Thank you for offering to sign but Pramilla felt it best to be no one associated with him. Will you still visit today? He is not wanting to eat today. I gave him an Up & Go. I massaged 412 Lynn, [198]. 413 Lynn, [203]. 414 Exhibit R44. 415 Cate, [208]-[218]. 416 Exhibit R41. -- 127 of 192 -- [2026] SASC 115 B Doyle J 126 his knee, legs and feet, and his arms & hands which he enjoyed. He is just having a snooze now. I meant to say that the lawyer said that was consistent with what he had told her Great Now that that’s [o]ut the way everyone can focus on Paul I’m about 5 away Agreed. Okay see you soon. They gave him some hydro morph. 524 Ms Ikon arrived shortly thereafter and Cate went for a walk to get lunch. She exchanged subsequent text messages with Ms Ikon in which: • Ms Ikon mentioned that the hallucinations were back, and she had suggested he sleep; and • Ms Ikon confirmed ‘the lads’ had left once she had arrived. 525 Ms Ikon said, in one of the messages, that ‘His mind is sharp most of the time but his body is failing him’.417 The messages then refer to the fact that, due to pain, Paul was to be given some more ‘morphine’ (presumably a reference to hydromorphone). 526 Cate’s evidence is she left the RAH at around 3.00 pm and was not present when the solicitors returned later in the day. She exchanged messages with Lynn and Ms Ikon in the afternoon and evening. It appears from these that Ms Ikon went back in to see Paul again during the evening. She reported as follows when asked by Cate how Paul was that evening (Ms Ikon on the left, Cate on the right):418 He was ok. Knee is troubling him. Was tired. He wanted company until he dozed off but would then talk so didn’t know if I was making it worse staying there the whole time. Told him I had clients tomorrow and away Friday and he said ok I doubt I’ll see you again. I don’t think he’s at that stage just yet. Ate the lasagne and veggies and chocolate. Appetite was good which was a good sign. Oh what great news. Thank you so much for txting. I’ve been worrying all afternoon. I’m so pleased he ate! And so glad you were there with him. He does like the company and you are fun. You will definitely see him again. 417 Exhibit R41. 418 Exhibit R41. -- 128 of 192 -- [2026] SASC 115 B Doyle J 127 Hope your meetings go well and we see you soon. Have a great weekend with your girlfriends. My gut is telling me it won’t be in the next couple of days. If it does change please let me know though. 527 Cate’s evidence was that during her interactions with Paul that day he was alert and oriented. He was able to converse appropriately. She did not have any suspicion he may not have capacity.419 528 There was one recording of a conversation between Paul and Cate on 10 February 2021.420 In it, Paul and Cate discussed whether the jewellery he had inherited should be dealt with globally as part of the estate or whether family should be invited to make a selection from it, and Paul relayed to Cate the location of a number of quantities of cash in his home. The conversation, whilst obviously not establishing capacity, is not contraindicative of it. Ms Ikon’s evidence 529 Ms Ikon’s evidence in her affidavit was that what lay behind her second visit on 10 February 2021 was a concern about Cate’s involvement in the preparation of a will. There is no hint of this in the warm exchange of messages with Cate, but that does not mean Ms Ikon did not want to satisfy herself that Paul was not being improperly influenced by Cate, and it is not inherently improbable that Ms Ikon would have maintained civil communications despite harbouring a concern. Further, there is nothing in what she recalls being discussed to suggest that her concern was substantiated. 530 She said that when she arrived that evening she asked Paul if anyone was coercing him into making any decisions and he ‘sort of made a joke and asked if I wanted to be added in the will’. She responded ‘no’ and that it was a little insulting for him to ask, and he laughed. She thought his response was tongue in cheek but she felt a little annoyed or offended. In cross-examination she accepted this was an example of how he would deploy a quirky sense of humour to avoid an otherwise uncomfortable topic.421 531 Ms Ikon said that after she expressed her concern that he was being taken advantage of he became upset.422 He said it would have been nice to have someone who cared for him.423 She did not suggest, however, that Paul indicated or conveyed that he had been pressured or taken advantage of. 532 Ms Ikon’s affidavit describes some other topics which she then discussed with Paul. These include her asking him whether he had been ‘in relations’ with 419 Cate, [224]. 420 Exhibit A19, ‘15. Mothers jewellery-cash’. 421 Tr 547. 422 Ikon, [109], [113]. 423 Ikon, [110]. This sentence was received for non-hearsay purposes only. -- 129 of 192 -- [2026] SASC 115 B Doyle J 128 Cate, to which he replied ‘no’. Given his private nature, I would not treat that as undermining Cate’s evidence about their relationship for a period when they were younger. The other topics Ms Ikon recalled discussing included: • whether he had any regrets in life (he responded ‘no’); • that Paul wasn’t sure about the existence of God; • that he was extremely embarrassed about the state of his house and did not want anyone to go there; and • that whilst he had been happy not to have had kids, when asked if he had wondered what that would have been like, he guessed it would have been nice. 533 Ms Ikon’s evidence was that her conversation with Paul was more general than might ordinarily have been her previous experience talking to someone whom she regarded as very intelligent and who often talked about history. But her recounting of the discussion does tend to indicate that Paul was capable of sensible and reflective discussion, despite at other times being in evident pain and with his eyes ‘rolling’. It appears that Paul was not limited to dealing with his immediate needs or issues. As has already been noted, Ms Ikon did not say at the time, or in her evidence, that she doubted Paul’s testamentary capacity on 10 February 2021. Her contemporaneous observation made in a text message that day was that his mind was ‘sharp most of the time’ and that it was his body that was failing him. Coming as it does from a witness who has no interest in the outcome of the litigation, that observation is of some significance. Ms Cortazzo takes instructions and Paul executes pro forma will 534 Ms Cortazzo’s evidence is that she left her office at around 9.05 am and travelled to the ward at the RAH where Paul was admitted and spoke briefly there with Ms Khambatta. Ms Khambatta said Paul had capacity and was able to provide instructions.424 535 Before entering Paul’s room, Ms Cortazzo introduced herself to Cate. They did not discuss the will or Paul’s estate.425 536 Ms Cortazzo found Paul sitting upright in his hospital bed. She introduced herself and asked if he knew why she was there. He said words to the effect she was there to prepare a will for him because he did not have one. According to Ms Cortazzo, Paul was able to speak clearly, and did not appear to be hazy or tired.426 424 Cortazzo, [13]. Ms Khambatta’s statement was received for narrative purposes, and by agreement was not relied upon for the truth of the opinion expressed by her: Tr 249.22-24. 425 Cortazzo, [14]. 426 Cortazzo, [16]-[17]. -- 130 of 192 -- [2026] SASC 115 B Doyle J 129 537 In accordance with her usual practice, she used a will instructions pro forma sheet to record instructions.427 The notes she made whilst taking instructions on the occasion in question are reproduced below. 427 Cortazzo, [18]. -- 131 of 192 -- [2026] SASC 115 B Doyle J 130 -- 132 of 192 -- [2026] SASC 115 B Doyle J 131 -- 133 of 192 -- [2026] SASC 115 B Doyle J 132 538 Ms Cortazzo sat down next to Paul’s bed and asked him to provide her with his personal details. He provided his full name, address, date of birth and telephone number. She asked him about his family and he informed her he did not have a partner or children and that his parents had predeceased him. He said he had a cousin named Racheline Rogers who he called Lynn.428 539 Ms Cortazzo asked Paul what assets he owned, and Paul told her he had a modest estate predominantly comprising his house at Firle (which did not have a mortgage). Paul gave her a summary of his assets, including his bank account and car, and their estimated values. He informed her that his income comprised the aged pension and that he had credit cards that he paid off as they fell due.429 540 Ms Cortazzo’s evidence was that Paul was ‘clear and decisive’ in the instructions he gave. He did not, to her observation, appear to struggle to answer her questions or to provide instructions about his assets. There was no need for her to prompt him. When asked why he was in hospital, Paul informed her that he was in the late stages of bowel cancer and that he was not going to live much longer. He was able to explain what an executor and an estate was.430 541 Ms Cortazzo asked Paul who he would like to appoint as executor, having given a brief explanation of what the role entailed. He said he wanted Cate to be his executor, and provided Ms Cortazzo with Cate’s name and address, which she noted was in Queensland. This prompted her to ask whether Paul wished to appoint another person to act with Cate, because there could be some practical issues otherwise. Paul said Lynn should be an executor with Cate.431 542 Ms Cortazzo asked Paul how he wanted to divide his estate and explained the concept of a residue after the meeting of expenses and any other liabilities. He said he wanted his estate divided equally between Cate and Lynn.432 She asked how he had come to know Cate, and Paul explained he had been friends with Cate for around 30 years, and that she was a true friend. Even though Cate had moved to Queensland, they spoke often. He said he had always wished for something romantic with Cate, but that Cate did not want to pursue that, and they instead remained friends.433 543 Ms Cortazzo asked whether he wanted Cate or Lynn’s children to receive their respective mother’s share of the estate if they predeceased him. Paul said that Lynn’s children should be included but did not make reference to Cate’s child or children in this context. He was happy for a clause dealing with this eventuality to be inserted in the will.434 428 Cortazzo, [20]-[21]. 429 Cortazzo, [22]-[23]. 430 Cortazzo, [26]. 431 Cortazzo, [27]. 432 Cortazzo, [28]. 433 Cortazzo, [30]. 434 Cortazzo, [31]. -- 134 of 192 -- [2026] SASC 115 B Doyle J 133 544 Paul was asked if he wanted to leave any specific assets to anyone in particular, but he did not.435 545 Paul said he wanted to be cremated and for his ashes to be kept in an urn and given to Cate.436 546 Ms Cortazzo then asked whether it was alright if she mentioned to Cate the proposal that she be executor and Paul said that was okay. She left the room to do so.437 547 Upon exiting the room Ms Cortazzo saw Ms Khambatta and asked whether she could arrange a letter from Paul’s treating doctor as to his capacity. She explained that whilst she did not have any doubts about capacity, it would be prudent to obtain a letter. Ms Khambatta said she would arrange this.438 548 Ms Cortazzo then had a discussion with Cate in which she asked Cate whether she knew what family Paul had. Cate explained there were two cousins, Lynn and Maurice. She gave her a piece of paper with the spelling of their names. Ms Cortazzo did not think much of Paul’s failure to mention Maurice, as he was a cousin, not a close relative like a sibling. Ms Cortazzo said Paul wanted to appoint Cate as executor with Lynn. Cate said Paul had previously mentioned appointing her and that Lynn did not seem to be happy about her involvement, but that topic was not discussed further.439 549 Ms Cortazzo returned to Paul’s room (alone) and asked him whether Lynn was his only family. He said ‘no’ and referred to another cousin, Maurice. Ms Cortazzo asked if Paul wanted to include Maurice in the will. He thought about that for a few seconds and then said words to the effect that maybe it would be best to include him in the division with Cate and Lynn. Ms Cortazzo made clear that he was not obliged to unless he wanted to. Paul said ‘no’, and that he was happy to include him. Paul was able to provide Maurice’s full name without prompting. Ms Cortazzo did not ask Paul why he had not initially included Maurice; she did not think it necessary.440 550 Ms Cortazzo returned to the topic of executors and asked whether Paul wanted to appoint both Cate and Lynn. Paul said that he originally intended to have only Cate as his executor but that, on second thought, he was happy to include Lynn given the practicality of doing so.441 551 After confirming Paul’s instructions, Ms Cortazzo asked him whether he had any questions. Paul said there was something he would like to discuss privately 435 Cortazzo, [32]. 436 Cortazzo, [33]. 437 Cortazzo, [34]. 438 Cortazzo, [35]. 439 Cortazzo, [37]. 440 Cortazzo, [38], Tr 303-304. 441 Cortazzo, [39]. -- 135 of 192 -- [2026] SASC 115 B Doyle J 134 with Cate concerning the house and Ms Cortazzo left the room to facilitate Cate coming in and having that discussion.442 552 While that was occurring, Ms Cortazzo prepared a handwritten temporary will. Ms Khambatta declined to be a witness given she was an employee, and so Ms Cortazzo asked Cate, once she re-emerged from the room, to locate a volunteer. Ms Cortazzo returned to Paul’s room and explained the temporary will (including that it did not contain the gift over provision).443 Paul agreed this was a good idea after reading it. She then explained each clause with Paul confirming he understood each clause. He was asked about the distribution of the estate and indicated he was happy for it to be divided three ways between Cate, Lynn and Maurice.444 553 Cate then returned with a volunteer, Mr Sang-M-Tran. Cate waited outside whilst the temporary will was witnessed. Paul explained he might have some trouble signing because he had fallen recently and suffered some nerve damage in his right hand. She told him to take his time and that it did not need to be perfect. He signed the will in the presence of the witness and Ms Cortazzo.445 554 Ms Cortazzo said she would return later that day with the final will but that he could be assured there was now something formal in place reflecting his wishes. He appeared to be pleased at this.446 Ms Cortazzo requested that Ms Khambatta arrange the treating doctor’s letter about capacity in time for her return later in the day.447 Ms Cortazzo did not doubt capacity, but regarded this as ‘good practice’.448 555 Ms Cortazzo’s evidence was that all in all she spent about an hour with the deceased on the morning of 10 February 2021.449 556 Ms Cortazzo confirmed in her oral evidence that at the time she took these instructions, she had prepared around five ‘deathbed’ wills.450 However, in her practice as a more junior practitioner she had been present whilst other senior practitioners had taken ‘deathbed’ wills.451 557 Ms Cortazzo gave oral evidence which made clear that she understood the three limbs of the Banks v Goodfellow test.452 Her written evidence (extracted below) should be understood in light of that explanation. She said: 442 Cortazzo, [40]. 443 Tr 323.10-13, 323.25-27. 444 Cortazzo, [41]-[45]. 445 Cortazzo, [46]-[49]. 446 Cortazzo, [51], Tr 327.19-21. 447 Cortazzo, [53]. 448 Tr 318.1-29 449 Cortazzo, [54]. 450 Tr 250.24-27. 451 Tr 250-251. 452 Tr 253-254. -- 136 of 192 -- [2026] SASC 115 B Doyle J 135 [55] During the hour that I spent with Paul in the morning of 10 February 2021 taking his instructions in relation to, and preparing, the temporary will, I did not have any concerns about his capacity. Paul provided appropriate and direct responses to the questions I asked him. He was able to hold a conversation and provide the necessary details with ease. He was oriented to the date and time. [56] I was alert to the importance of satisfying myself that Paul had capacity to execute a will because he was in hospital and close to death. I was careful not to ask leading questions of Paul during my discussion with him. [57] In my discussion with Paul, I did not observe anything that would typically give me reason to doubt a person’s capacity. For example, he was not confused or indecisive. He appeared to understand the matters being discussed and that I was a lawyer who was there to prepare his will. [58] Paul knew that his estate primarily comprised his house. He identified his cousins and knew how he wished for his estate to be distributed (initially, equally between Cate and Lynn). [59] The fact that Paul was able to volunteer information about his condition and that he had recently damaged his hand in a fall reinforced my view that Paul had testamentary capacity. [60] The following factors further reinforced my view that Paul had testamentary capacity: [60.1] he was able to hold a conversation; [60.2] he provided direct responses to my questions; [60.3] he was orientated to the date and time; [60.4] he provided the necessary details comfortably and with ease, without prompting and without reference to any notes or documents; and [60.5] he was decisive in his instructions. [61] When I have reason to doubt a client’s capacity, my usual practice is to ask more questions about the person’s family and/or friends and to ask them to provide further general details. I would also usually have a general conversation with any relative or friend that has attended with the client to ask whether the client is suffering any illnesses, including dementia. In contrast, where a client is able to confidently tell me what a will is, what their assets comprise, who they are, who their family is and displays no signs of delusion or confusion, I typically would not ask any further questions with a view to confirming that person’s capacity. I also always turn my mind to the Banks v Goodfellow test when assessing a person’s capacity. [62] In taking instructions from Paul, I did not probe him for further information in respect of his family or other details because I had no cause to doubt his capacity. [63] Notwithstanding, I considered it prudent to obtain a letter from one of his treating doctors certifying that he had capacity given his medical condition and that he was approaching the end of his life. -- 137 of 192 -- [2026] SASC 115 B Doyle J 136 558 The applicants having initially flagged a vagueness objection to certain of those paragraphs, the respondent sought (and the applicants did not oppose) Ms Cortazzo giving some brief oral evidence by way of further explanation. In the course of that evidence Ms Cortazzo explained that to her observation the deceased appeared to be considering and then acting on the advice that she gave in relation to the practicalities of who should be executor. It also appeared to her that he had thought about the content of the will before she had arrived. Together with the direct and relevant answers he gave to her questions, she formed the views about capacity described in the paragraphs extracted above.453 Ms Cortazzo clarified that if she had held a concern about capacity she would have made further inquiries and sought to engage directly with treating doctors.454 Ms Cortazzo returns with Ms Johns and the will is executed 559 Having discussed the matter with Ms Johns, Ms Cortazzo planned to return to the RAH later in the afternoon for the purpose of Paul executing a formal will. Ms Cortazzo foreshadowed her timing with Cate, who said she would inform hospital staff.455 560 Ms Cortazzo arrived at the hospital at about 5.30 pm. Neither Cate nor Ms Khambatta was present. Ms Cortazzo was provided with the letter regarding capacity. A nurse confirmed that Paul was ready to see her and Ms Johns.456 Ms Cortazzo’s evidence 561 According to Ms Cortazzo, she introduced Paul to Ms Johns and asked him if he knew why they were there. He gave an appropriate response.457 Paul seemed more tired than he had in the morning, and appeared to be in some pain,458 but in Ms Cortazzo’s view was lucid and able to converse well. He did not appear to be delusional.459 562 Ms Cortazzo asked if she could go over some things with Paul and he indicated that was fine. She asked his date of birth and for details of his family and he gave accurate answers, including by saying that Lynn had two children. She asked Paul to confirm who he wanted as executor and to receive his estate and he gave answers consistent with his instructions earlier in the day.460 563 Ms Cortazzo then gave the will to Paul to read. She then read every clause to him and explained each clause in simple terms. Paul verbally confirmed or nodded to show that he understood and agreed with each clause.461 She then 453 Tr 257-258. 454 Tr 259. 455 Cortazzo, [64]-[67]. 456 Cortazzo, [68]-[69]. 457 Tr 328.31-329.13. 458 Tr 337.24, 338.30. 459 Cortazzo, [72]-[73]. 460 Cortazzo, [74]-[77], Tr 329-331. 461 Tr 332-333. -- 138 of 192 -- [2026] SASC 115 B Doyle J 137 confirmed the appointments as executor and the three-way division of the estate. He then read over the will once more. She asked whether he had any questions and he did not. Paul wanted to practise his signature, which he did on a blank piece of paper, before ultimately executing the will.462 564 There was a discussion about safe-keeping of documents and Paul asked Ms Cortazzo to leave the invoice and a copy of the will on the shelf opposite his bed. He thanked her for her assistance and she and Ms Johns left at around 6.30 pm.463 Ms Johns’ evidence 565 Ms Johns’ evidence is to similar effect. She said that when she and Ms Cortazzo entered Paul’s room, Paul used Ms Cortazzo’s name (‘Chantel’) and said something to the effect that they were here for the will to be signed.464 566 She said that although Paul was tired he was quite articulate.465 She also recalled Ms Cortazzo asking Paul a number of questions which elicited responses consistent with the will that had been prepared based on the instructions taken earlier. When Ms Cortazzo then read out each clause, Paul appeared to be listening and making sure he understood, before answering ‘yep’ or using words to similar effect. He then read the will to himself, confirmed he was happy with it, and, after practising his signature, executed it.466 567 Her evidence regarding capacity was that she did not have any concerns about his capacity at the time he signed the will, primarily due to Paul’s demeanour during the course of their hour or so long interaction.467 Ms Johns affirmed that:468 [26] Although Paul was very weak and tired, he: [26.1] recalled the effect of the will without prompting and before reading it; [26.2] conversed appropriately; [26.3] directly answered questions that were asked of him; and [26.4] asked appropriate follow-up questions, rather than simply accepting what Chantel was saying, which would have been a red flag for me. 568 Whilst Ms Johns’s file note did not record any specific follow up questions that had been asked,469 and whilst she was not able to recall the particular follow- up questions that Paul had asked,470 she said in re-examination that this was what 462 Cortazzo, [78]-[86], Tr 344-345. 463 Cortazzo, [88]-[91]. 464 Tr 189.6-15. 465 Johns, [12]. 466 Johns, [13]-[22]. 467 Johns, [24]-[25]. 468 Johns, [26]. 469 Tr 203.5-6. 470 Tr 208.9. -- 139 of 192 -- [2026] SASC 115 B Doyle J 138 was intended to be conveyed by the comment she made in a file note prepared in the evening of 10 February 2021 to the effect that the deceased was ‘very responsive in his condition’; that is, he was able to follow Ms Cortazzo’s line of inquiry and respond appropriately answering it.471 Findings 569 Whilst there is a dispute about the opinions expressed by witnesses, or the weight to be given to observations made by witnesses about the deceased’s capacity on 10 February 2021, there is little dispute as to the events of that day. 570 I accept as accurate and reliable the observations of the deceased made by Dr Takhar and Dr Cursaro, including the hospital notes made in respect of their attendances. In particular, I accept that Paul engaged in discussion with Dr Cursaro about hospice options and, as part of this, weighed up the relative merits and demerits of the options available to him, before expressing a preference to be moved to the QEH for reasons that were reasonable and rational. 571 I accept that during the time Ms Ikon spent with Paul, he continued to present to her as being of sound mind and as having capacity. Whilst she had wanted some reassurance he was not subject to influences, her evidence tends to contraindicate any suggestion that he had suffered a significant deterioration in his cognitive state. 572 I accept the evidence of Ms Cortazzo and Ms Johns about the way in which they interacted with Paul on 10 February 2021. In particular, I find that: • Paul was able to provide details of the names and addresses of relevant persons and to list and provide approximate values for his assets; • when possible logistical issues arose in relation to Cate being sole executor, he considered that issue and decided to make Lynn an executor; • when asked about other family members, he reflected on Maurice’s inclusion and decided that it would be best to include him, in that regard effectively reverting to the approach he had apparently earlier favoured; • when Ms Cortazzo returned later in the day he recalled the effect of what he had resolved to do that morning; • throughout their exchanges he was lucid and coherent, and apparently engaged in the process; and • Paul did not do or say anything in the presence of Ms Cortazzo or Ms Johns such as to raise any particular reason for them to doubt his testamentary capacity. 471 Tr 205-206. -- 140 of 192 -- [2026] SASC 115 B Doyle J 139 573 That is to say, I accept that there was nothing that Paul said or did which was positively contraindicative of testamentary capacity. I return later to the criticisms of the extent of the inquiries made by the solicitors. 574 I also find that at the time of the deceased’s discussions with Ms Cortazzo his cognition was not adversely affected by the medication he was administered. The dosage and timing of the medication was not such as to be likely to incapacitate the deceased, and Ms Cortazzo and Ms Johns did not observe him to be incoherent or lacking in comprehension. I return to this topic later. Events of 11 February 2021 575 During the course of 11 February 2021, Paul was visited by Maurice and Cate. I describe first the medical evidence. Hospital observations 576 Dr Takhar saw Paul for a final time early on 11 February 2021. He was accompanied by Dr Tang, Dr Lim and Dr Sansome. Paul reported not having slept well and complained of knee pain. He had experienced some hallucinations the night prior, but was not actively hallucinating during the discussion. Dr Takhar assessed Paul as having insight and being able to distinguish the hallucinations from reality. A note of the ward round attendance described Paul as ‘more conversa[nt]’.472 577 Paul informed Dr Takhar that he had met with lawyers the previous day and completed his will. He was alert and engaged during the discussion. He was being treated with comfort measures pending transfer to the QEH.473 578 A note prepared by Ms Khambattta suggests that she attended at a time when a cousin was present.474 This was evidently Maurice. The note records, inter alia, that: Paul was satisfied that he had completed the will, he had discussions around the type of funeral he wanted, he was not keen to have any spiritual care which was also offered. Paul’s friend Cate was requesting for carer’s leave, as she is from interstate and is planning to stay back to sort out all Paul’s affairs. 579 Paul was seen later in the day by Dr Brook, the Palliative Care Registrar.475 Interactions with Maurice and Cate 580 Maurice’s affidavit evidence about his interactions with Paul at the RAH on 11 February 2021 was limited. He attended early in the morning to find Paul being attended to by nurses, and he waited outside. When he re-entered the room, he said Paul made an incoherent reference to ‘whores’ and referred to his parents as 472 Takhar-1, [69]-[71], Exhibit R22, p 1029. 473 Takhar-1, [72]-[74]. 474 Exhibit R22, p 1044. 475 Exhibit R22, p 1030. -- 141 of 192 -- [2026] SASC 115 B Doyle J 140 though they were still alive. He assisted Paul with breakfast and Paul then slept. His memory is he stayed until about 12.30 pm. He said he could not recall seeing Cate that day.476 581 Cate’s recollection is that she attended that morning and that Maurice was with Paul when she arrived. She asked Paul whether the solicitor had come back to see him and he said that they had, and that the will was sitting on the counter. Maurice was, on Cate’s account, present during this interaction. Cate left Maurice with Paul and spent the day with her elderly mother.477 582 Cate received a text message from Ms Ikon around lunch time asking how Paul was, and Cate responded to the effect she had seen him that morning and that he had been good until they gave him the hydromorphone. In a subsequent message, Cate reported that Maurice had been in to see Paul as well in the morning.478 583 Cate also exchanged messages with Lynn that afternoon in which Lynn encouraged Cate not to go back into hospital (Cate having said she was very tired), emphasising that Paul was being looked after. Lynn said that Maurice had given her some news. Cate inquired what that was and Lynn reported:479 Maurice said he looked good, was with it, had some food, then they gave him the opioids and he fell asleep 584 Indeed, in a text message sent by Maurice to Lynn late on the morning of 11 February 2021, Maurice had said that Paul had been ‘quite lucid’ and that it was only after he received medication that he hallucinated and as ‘a little incoherent’.480 585 In cross-examination, it was put to Maurice that he had been present during a discussion with the social worker in which reference was made to the will having been prepared the previous day. Maurice was not prepared to deny that that was the case, but said that it was not his memory that that had occurred.481 Findings 586 I find that Maurice’s recollection of the events of 11 February 2021 as set out in his affidavits is unreliable or, at least, incomplete and not representative of Paul’s mental state over the course of the morning. Evidently, in his contemporaneous communications, Maurice had presented a more positive picture about Paul to Lynn than is suggested by his affidavit. Although Maurice said in his affidavit evidence that he could not recall if he interacted with Cate, it is 476 Maurice-1, [149]-[153], Maurice-2, [12]-[13]. 477 Cate, [225]-[228]. 478 Cate, [229]. 479 Cate, [230]. 480 Exhibit R37. 481 Tr 622-623. -- 142 of 192 -- [2026] SASC 115 B Doyle J 141 reasonably clear from contemporaneous text messages (and is consistent with inferences that might be drawn from Ms Khambatta’s notes) that he did. 587 In these circumstances, and given that Maurice was generally imprecise with respect to particular events and occasions, I find that he was present during discussions with Paul and Cate, or Paul and Ms Khambatta, or both, in which the fact that the will had been prepared the previous day was mentioned. Whilst it may not particularly matter, I find that Maurice became aware by 11 February 2021 that the will had been prepared. 588 More relevantly, I find that whilst he was no doubt in pain and may at times have been drowsy or confused, Paul: • was otherwise reasonably alert and coherent; • recalled and expressed satisfaction that he had executed the will the previous day; and • engaged in sensible discussion about funeral arrangements. Events of 12 February 2021 589 Paul was transferred to the QEH at around 11.00 am on Friday 12 February 2021. Before that, he was seen by Dr Lim, Dr Sansome and a number of medical students in the morning. Cate was present. Paul was noted to be tired and he advised that he was concerned about how drowsy he felt after taking hydromorphone.482 Later that morning, he was seen by the Palliative Care team. He was noted to be sitting up in bed and conversing appropriately. He repeated his concern about drowsiness associated with hydromorphone and it was agreed to reduce his dose to 0.5 mg.483 590 Cate’s evidence is that Paul was alert and happy that morning.484 She sent text messages to Maurice, Sofie and Mike explaining where they could find Paul at the QEH.485 591 Cate exchanged a number of text messages with Lynn during the course of the morning in which Cate relayed the change in dosage that had been agreed upon and inquired whether she and Lynn might catch up to start talking about how they would manage Paul’s house and affairs. They also discussed whether Paul’s ‘documents’ should be transferred with him to the QEH or whether Cate should take custody of them in the meantime.486 482 Exhibit R22, p 1047. 483 Exhibit R22, p 1048. 484 Cate, [231]. 485 Cate, [235]. 486 Cate, [237]. -- 143 of 192 -- [2026] SASC 115 B Doyle J 142 592 In the early afternoon, Cate went to the Marden post office to collect Paul’s mail but could not recall the PO Box number. She then went to the Firle property and located a Commonwealth Bank letter on Paul’s desk that showed the number. She returned to the post office and retrieved the mail. Later she exchanged some further messages with Lynn who, by this time, had visited Paul at the QEH.487 593 Lynn’s evidence was that when she saw Paul at the QEH he was confused and experiencing hallucinations.488 In her message to Cate sent in the early evening she said that the doctors at the QEH had said that the hallucinations are ‘part of the process as we approach death’.489 594 There was no real challenge to these accounts of the various interactions with Paul on 12 February 2021 and I accept those accounts. Subsequent events and Paul’s death 595 Paul died at the QEH hospice on 18 February 2021, six days after his admission there. The QEH medical records were not tendered in evidence. In the period after Paul’s admission, the relationship between Cate and Paul’s cousins appeared to deteriorate. 596 On 13 February 2021, Cate sent a text message to Lynn asking to speak to her, and it is apparent that they had a phone discussion in which Lynn expressed her upset about progressing funeral and other arrangements at that time with Cate.490 597 The parties each recall somewhat acrimonious discussions but there is some confusion in the evidence about whether these occurred on either or both of 13 or 14 February 2021. The precise particulars are not important. In short: • Cate recalls an interaction with Maurice (with Lynn arriving part way through) in which Maurice said that Lynn had spoken with Mr Solomon and been told there was no need for a will because the estate would go to Lynn and Maurice as next of kin,491 and in which Lynn said she was not aware of any will. Cate’s evidence is that both Maurice and Lynn had been aware before this time that Paul had executed a will. Cate says that at some stage she was told it was illegal for her to attend the Firle property, notwithstanding that Paul had given her the keys; • Lynn’s evidence is to the effect that she only said she had not seen the will (but she had been made aware of its existence by Ms Ikon ‘a few days earlier’), and was not particularly interested in seeing the will. She says she 487 Cate, [238]-[243]. 488 Lynn, [209]-[211]. 489 Cate, [243]. 490 Cate, [246] and Lynn, [216]-[217]. 491 This part of Cate’s evidence (Cate, [248]), attributing these propositions to Maurice, was received for narrative purposes, but was not received as evidence of the truth of the assertions made. -- 144 of 192 -- [2026] SASC 115 B Doyle J 143 only subsequently found out (on 19 February 2021) that she and Maurice would have shared Paul’s estate if he had died intestate; and • Maurice recalls saying to Cate that until Paul died none of them could do anything with Paul’s possessions. He also recalls Lynn saying that she had not seen the will. 598 In considering these conflicting accounts, it is relevant to note that the respondent did not establish that Mr Solomon had in fact been retained before the conversation in question, making it very unlikely that Maurice (or Lynn) purported to recount advice given by him. To that extent, at least, Cate’s account cannot be accepted. 599 There was, however, a text message exchange between Maurice and Lynn between the evening of 13 February 2021 and on the afternoon of 14 February 2021, which provides some support for the notion that reference might have been made during that period to legal advice or lawyers. The exchange commenced with Lynn (whose messages appear on the right) referring to her daughter (Natalie) having proffered an opinion about Cate’s custody of the keys.492 [13 February 2021 at 5.16 pm] Nat says Cate should be asked to put Paul’s keys back in his bag She’s right Lynn. If I ask her to she will know we’ve been discussing her. Maybe you could mention it to her. What do you think? I will suggest it to her say I have been talking to a lawyer my son in law perhaps a lawyer friend OK [13 February 2021 at 6.52 pm] Maruice I can go first thing tomorrow. I will go early and hope he can be awake for a bit when I’m there. Then I can spend more time with George. I promised him xx [14 February 2021 at 12.53 pm] Have a look and make sure she remembers he’s still alive. She’s a gold digger 492 Exhibit R37. -- 145 of 192 -- [2026] SASC 115 B Doyle J 144 [14 February 2021 at 4.23 pm] Lynn, the name on the will pack was ADELTA LEGAL 600 It is not possible to make precise findings about the exchanges between the parties on 13 and 14 February 2021. Clearly, it was around this time that tensions between the parties started to become overt. Lynn disapproved of Cate speaking proactively about Paul’s affairs whilst he was still alive, and she had become cynical (to put it mildly) about Cate. I find that Lynn and Maurice were both, by this time, aware that a will had been made on 10 February 2021, though they likely had not reviewed the document itself. 601 I consider they were beginning to look at the preparation of the will in a different light and were consciously or subconsciously seeking to distance themselves from that process. I find that they told Cate it was illegal for her to use the keys to visit the property. Cate clearly sensed that Lynn and Maurice’s attitude towards her had changed. 602 Whilst I do not accept Cate’s evidence to the effect that Maurice (or Lynn) relayed legal advice received by Mr Solomon, it is possible that Cate’s recollection of events has been affected by the fact that assertions of legal rights commenced to be made from this time. Cate may well have suspected (and subsequently persuaded herself) that Lynn and Maurice had only just come to the realisation that they would receive less under the will than if there was no will, causing her to regard the conduct of Lynn and Maurice’s changed demeanour negatively. It may be noted that in Cate’s text message to Lynn on 10 February 2021 in which she relayed that there was a lawyer in with Paul, Cate appeared to convey her (wrong) understanding that if a will was not successfully made, his estate would go to the Public Trustee. Lynn did not correct her. 603 In my view, the evidence of each of the three protagonists about these exchanges, which were likely tinged with emotion and an element of stress, must be viewed with some caution: (1) as earlier indicated, Lynn’s evidence about her text messages was somewhat defensive; (2) Maurice’s evidence about the text message exchange was also unimpressive – he sought to characterise what was under discussion as an attempt to diffuse the situation in order to avoid an outburst from Cate;493 and (3) Cate’s attribution to Maurice and Lynn of legal advice received by that time from Mr Solomon must also be wrong, so that her evidence is unreliable at least to that extent. 604 Whilst Cate’s affidavit evidence did not refer to a visit on 15 February 2021, and Lynn’s evidence was somewhat equivocal as to the date, it seems likely that each of Cate, Lynn and Ms Ikon briefly overlapped with each other whilst visiting Paul that day. Ms Ikon’s evidence was that Paul ‘still had his wit, but was having 493 Tr 609-611. -- 146 of 192 -- [2026] SASC 115 B Doyle J 145 trouble finishing sentences’.494 Lynn’s perception was that Paul was deteriorating throughout this period and was ‘very confused and hallucinating’.495 605 Cate visited Paul the following day with Raj and Jenny. Photographs show that Paul’s bed was taken outside to a courtyard. According to Cate, they enjoyed each other’s company and he said he wanted to do it again the next day.496 Maurice’s evidence was that when he was with Paul, Paul was disturbed by visual hallucinations.497 Nevertheless, Maurice described Paul as able to talk to Maurice in a lucid fashion; he had insight into the fact that they were hallucinations.498 606 On 17 February 2021, Cate visited Paul and overlapped for a period with Paul’s friend Mike. According to Cate, Paul and Mike had an active and enthusiastic conversation. Paul also expressed a concern about the medication he was taking.499 Lynn’s evidence was non-specific about this period, but the effect of it was that Paul was deteriorating and was speaking erratically.500 607 Overnight, Paul’s health deteriorated. He died in the afternoon of 18 February 2021. Cate (with Raj), Lynn and Maurice all visited the QEH that day. It seems that after Cate sent a text message to Mike, he attended too. There was an issue, having regard to COVID-19 restrictions, about how many people could be in Paul’s room. This caused friction. The parties’ accounts about that vary, but it is not possible or necessary to make precise findings about that. Events following Paul’s death 608 The events following Paul’s death are of peripheral relevance only. By this time, the parties were at loggerheads and lacked objectivity when interacting with each other. That coloured their behaviour, and to an extent their evidence about their behaviour towards one another. I have considered and had regard to the evidence of these events in a general way, but I do not consider it necessary to make or record findings about them. 609 I have not overlooked that on 25 and 26 February 2021, Cate authored email correspondence to the State Coroner which unfairly sought to paint Lynn in a bad light and to raise questions about how Paul was cared for in the last few days of his life.501 This has the hallmarks of an unjustified counter-attack by way of response to the foreshadowed challenge to Paul’s will and the explicit or implicit criticism of Cate’s involvement in that process.502 I do not, however, find that it 494 Ikon, [127]. 495 Lynn, [227] (this evidence was received only as to the witness’ belief). 496 Cate, [255]-[256]. 497 Maurice-1, [175]. 498 Maurice-2, [18]. 499 Cate, [257]-[259]. 500 Lynn, [228]-[230]. 501 Exhibits A3, A4 and A5. 502 I was inclined to accept Cate’s evidence that she heard Lynn make an observation about staff at the QEH to the effect that the staff might recognise her (Lynn), but this does not provide a proper basis for obliquely questioning Lynn’s role in Paul’s care. -- 147 of 192 -- [2026] SASC 115 B Doyle J 146 was designed to discourage a challenge to the will because she knew or believed Paul had lacked capacity. As I have said elsewhere, I considered that Cate’s evidence by way of her affidavit and in court about her interactions with Paul were truthful and generally reliable. F ANALYSIS AND ULTIMATE FINDINGS 610 The evidence canvassed in Part E and the primary findings that I have made are relevant to my assessment of whether, on 10 February 2021, Paul was sufficiently able to understand and evaluate the claims on his estate with a view to making a decision about how to distribute it. Before expressing my ultimate findings, I address in further detail the expert evidence led by the applicants and the criticisms made by them of the process by which Paul’s testamentary instructions were taken. Dr Hecker’s evidence 611 Because of the criticisms of Dr Hecker’s evidence, it is appropriate to consider the background and detail of Dr Hecker’s reports and evidence at some length. Initial instructions and preliminary views 612 By letter dated 28 October 2021, Mr Solomon wrote to Dr Hecker requesting her preliminary views as to the deceased’s testamentary capacity with the benefit of the material in the RAH records that Mr Solomon had recently received.503 I find that these records are the records tendered as Exhibit R22. The letter requesting an opinion was neutral in tone. It did not draw any particular matters to the attention of Dr Hecker. Mr Solomon requested that once she had a ‘thorough read’, Dr Hecker call him to discuss, but that no written opinion was required at that time. 613 Mr Solomon’s file note of his discussion with Dr Hecker on 6 December 2021 was set out earlier, as were my findings about the discussion. Dr Hecker said that having spent about two hours reviewing the RAH records, she did not have enough to say that Paul was probably so impaired that he did not have testamentary capacity at the time of making his will, although she expressed the view it was likely to be borderline. She referred to the possible effects of medications and to hallucinations. She said that before giving a full written opinion, she would wish to see the will maker’s notes and any other relevant information. Request for written opinion 614 By letter dated 2 August 2022, Wallmans Lawyers (acting for the applicants), sought Dr Hecker’s formal opinion in relation to the deceased’s testamentary capacity.504 By way of background, the letter set out a number of matters reflecting the author’s instructions. These included various references to places in the RAH 503 Exhibit R14. 504 Exhibit A14-A. -- 148 of 192 -- [2026] SASC 115 B Doyle J 147 medical records where there was reference to Paul being in pain, confused, delirious, or affected by hallucinations. The instructions also included the following matters: 9.2 Our clients are cousins of the Deceased. We are instructed that the Deceased had a very close relationship with them, as well as Lynn’s two daughters, Natasha and Nicole Rogers. Natasha and Nicole are the Deceased’s second cousins and Godchildren. 9.3 The Deceased was diagnosed with cancer in approximately 2014. Since then, his health significantly declined. The Deceased became increasingly forgetful, vague and unwell. … 9.6 At Christmas 2020, Maurice further observed that the Deceased was weak, jaundiced and frail. The Deceased’s neighbour, Sofie Ikon, reported that in early February 2021 (prior to his admission to hospital), the Deceased was confused, seemed extraordinarily unwell and had lost a lot of weight. 9.7 On 12 January 2021, Lynn drove the Deceased to the Lyell McEwin Hospital for an MRI. The Deceased could barely walk or get into and out of the car. … 9.9 The Deceased had been seeing a psychiatrist for several years. … 9.16 We are instructed by Lynn that on 6 February 2021, the Deceased signed the Note and that he seemed to have forgotten that Lynn was not our client’s full name. … 9.19 Importantly, on 8 February 2021, medical notes record that there were concerns about the Deceased’s capacity and ability to sign legal paperwork. … 9.27 We understand that the Deceased’s neighbour, Sofie Ikon, visited the Deceased on the evening of 10 February 2021. She observed the Deceased being in pain, his eyes rolling and being unable to finish a sentence. We note that at the time, the Deceased asked Ms Ikon whether she wanted to be added in to the Will (despite the Will already being signed), to which she said no. 9.28 While in the RAH, the Deceased was incontinent on numerous occasions. Our client, Lynn, observed the Deceased putting his hands in his nappy and pulling them out with black faecal matter on his hands and under his nails. In the first couple of days of his admission, he would sniff his hands and then allow the nurse to clean him. After the first couple of days, he refused to let our client call the nurse, saying they were enemies. … -- 149 of 192 -- [2026] SASC 115 B Doyle J 148 615 Without any intended criticism of the letter or its author, it may be noted that to varying extents these matters have not been established or differ from (or are at least not representative of) the primary findings I have made. In the case of [9.2], I have found that whilst Paul had a close relationship with Lynn, his relationship with Maurice was somewhat less close.505 In the case of [9.3], the cancer diagnosis was in 2016, and the balance of the sentence, so far as concerns his mental acuity in how he interacted with others, is not entirely consistent with my findings. In the case of [9.6] and [9.7], my findings about how Paul interacted at Christmas 2020 and the first month or so of 2021 are to different effect.506 In the case of [9.9], the evidence did not substantiate this proposition.507 In the case of [9.16], Lynn’s evidence was in fact that Cate wrote Lynn on the piece of paper, Lynn said her full name was ‘Racheline’ and Paul said ‘that’s right’.508 I have not found that Paul forgot Lynn’s full name. In the case of [9.19], I have not found that any medical practitioners or nurses held or expressed a concern about capacity.509 In the case of [9.27], the evidence about that conversation suggested a different complexion. There was no sense that Paul had forgotten he had made the will; he was making a joke.510 In the case of [9.28], Lynn did not give evidence to the effect of the second and third sentences.511 Her evidence about an occasion when Paul did not want the nurses to clean him and used the expression ‘enemies’ concerned 16 or 17 February 2021.512 616 In cross-examination, Dr Hecker was asked about whether she assumed the correctness of the proposition in [9.3].513 The answer was not directly responsive, but suggested that Dr Hecker considered there was material within the medical records consistent with the assumption. She was also asked about whether she proceeded on the basis of the proposition in [9.9] that Paul had been seeing a psychiatrist for many years. Her response was that she could not recall that having any prominence in her mind, adding that ‘[i]t’s actually quite hard to get into a psychiatrist’.514 Dr Hecker’s reports did not expressly indicate that she had assumed the correctness of the background matters referred to above. 505 See [308]-[314] above. 506 See [316]-[320] above. 507 That said, in cross-examination, Dr Hecker indicated that whether or not this was true it had ‘absolutely no bearing’: Tr 868.27-28. 508 Lynn, [162]. 509 See [490]-[492] above. 510 See [159], [530] above. 511 Maurice did, however, describe nurses scrubbing Paul’s fingernails when they had faeces under them: Tr 623.10-11. 512 Lynn, [230]. 513 Tr 832.2-833.10. 514 Tr 868.10-21. -- 150 of 192 -- [2026] SASC 115 B Doyle J 149 Dr Hecker’s first report 617 In Dr Hecker’s report of 22 November 2022, Dr Hecker listed the material she had received and read.515 This included a letter from Ms Cortazzo, enclosing notes and a statement. 618 The report commenced by setting out a ‘Summary of the Relevant Factual Information Presented’. This section mainly comprised short summaries and in some cases excerpts from the RAH records. 619 In the course of cross-examination, Dr Hecker was taken to various of the excerpts and it was suggested that they were incomplete and in some cases misleadingly so. As I observed in the course of Part E, Dr Hecker’s summary also did not mention a number of entries that might be thought to be consistent with the deceased being conversant, lucid and engaged. A summary of what were said to be relevant matters omitted or not included for context in respect of particular excerpts follows. Date Excerpt quoted in Dr Hecker’s report Matter omitted or not included 04.02 Report omits reference to 110 minute social worker consultation during which no difficulties encountered communicating with deceased (Exhibit R22, pp 956-957; put to Dr Hecker Tr 839.4-29). 04.02 Report omits reference to nursing note describing deceased’s cognition as ‘Alert and orientated’ (Exhibit R22, p 958; put to Dr Hecker Tr 841.1-7). 05.02 … medical notes on 05-02-21 (palliative care consult) note he was experiencing hallucinations (seeing people in the house and hearing the phone ring at night) Excerpt omits the words that immediately follow: ‘stated these issues have all resolved’ Same record later includes: ‘Oriented to time/place/person. No features to suggest delirium’ (Exhibit R22, pp 964-965; put to Dr Hecker Tr 844.29-847.26). 05.02 Report omits reference to nursing note indicating deceased ‘has been alert and orientated to person, time and place this shift. Interacts well with staff’. 515 Exhibit A14-B. -- 151 of 192 -- [2026] SASC 115 B Doyle J 150 (Exhibit R22, p 969; put to Dr Hecker Tr 848.1-16). 06.02 -nursing note 6-02-21 14:30 – “can be confused at times re what happened in the day” Excerpt omits the words immediately preceding this entry: ‘Cognition: Alert and orientated’. (Exhibit R22, p 972, put to Dr Hecker Tr 848.17-849.14). 07.02 Report omits reference to nursing note describing deceased’s cognition as ‘Alert and orientated’. (Exhibit R22, p 981, put to Dr Hecker Tr 849.26-850.3). 08.02 -medical ward round 8-02-21 09:30 – “reports visual hallucinations – the painting on the wall changes, believes other people have seen this; also sees people at the door, things in the corner of his eye” nursing notes confirm visual hallucinations Excerpt omits the words ‘Would like to continue transfusions currently to have enough time to arrange affairs’, omits comment regarding hallucinations that deceased ‘Does not find these confronting, is aware that these are hallucinations at the time’, and omits words that deceased ‘Does not appear confused today’. (Exhibit R22, p 983, put to Dr Hecker Tr 850.18-852.6). 09.02 -palliative care review 9-02-21 15:42 “given one dose of hydromorphone in last 24 hrs…impaired attention. Weakness in R hand (spilt a cup of water)” Excerpt omits the words which immediately preceded reference to impaired attention: ‘Orientated to RAH, year, month. Aware of events today and plan for hospice’. (Exhibit R22, p 993, put to Dr Hecker Tr 852.7-28). 10.02 -nursing note 10-02-21 05:02 “pleasantly confused … patient stated ‘there is something strange going on, there is a Korean show on and people are dying…dying!” The words denoted as omitted by the ellipsis were ‘easily reorientated’ (Exhibit R22, p 1016, put to Dr Hecker Tr 852.29-853.17). 10.02 -palliative care registrar medical assessment 10-02-21 12:45 hydromorphone 0.5 mg given this am. Initially very drowsy post hydromorphone. Friend Cate visiting. Conflict over where to go for palliative care (QEH vs FMC). Able to follow conversation slowly. Assess: ongoing fluctuation, delirium, but currently able Excerpt omits that which appeared after ‘Able to follow conversation slowly’, viz, ‘and understand the issues as above regarding hospice’ (Exhibit R22, p 1022, put to Dr Hecker Tr 853.18-854.11). -- 152 of 192 -- [2026] SASC 115 B Doyle J 151 to make decisions re discharge destination. 10.02 -nursing note 10-02-21 13:33 patient alert and orientated but is having some issues communicating at times. Given two doses of PRN hydromorphone over shift. Lawyer came today and discussed end of life wishes. Excerpt omits words immediately following reference to communication difficulties: ‘Can communicate pain and discomfort well. Patient states nil hallucinations today’. (Exhibit R22, p 1024, put to Dr Hecker Tr 855.1-856.27). 10.02 Report omits reference to palliative care consult note made at 15:31 which reports the deceased as being happy for Dr Cursaro to refer him to hospice at QEH. (Exhibit R22, p 1025, put to Dr Hecker, Tr 856.31-857.5). 10.02 Report omits reference to a social worker’s note describing a long discussion in which the deceased was interacting with the social worker. (Exhibit R22, p 1026, put to Dr Hecker, Tr 857.6-23). 620 Dr Hecker’s summary of the factual information relied upon by her also contained the following: Drug records show -pregabalin 75mg BD – continued until discharge -hyoscine 10mg oral BD PRN – commenced 4-02-21 and discontinued 10-02-21 at 13:53 -hyoscine 20mg subcut injection every 2 hours PRN from 10-02-21 until discharge -fentanyl 40-75mcg subcut injection PRN hourly – continued from 4-02-21 to discharge -hydromorphone oral 0.5 to 1mg hourly PRN – from 05-02-21 until discharge -midazolam 2.5mg subcut injection every hour PRN commenced 10-02-21 until discharge -haloperidol 0.5 to 1mg subcut injection every 4 hours PRN from 10-02-21 until discharge All of these drugs have impacts on alertness and cognition. Hydromorphone oral liquid was given once on 7-02-21, once on 9-02-21, three times on 10-02-21 (at 11:10, 13:29, 19:28). -- 153 of 192 -- [2026] SASC 115 B Doyle J 152 621 Records tendered in evidence disclosed that the deceased had in fact been prescribed pregabalin since September 2013.516 The Court received literature which indicated that most reported adverse effects of pregabalin were mild to moderate intensity, dose-dependent and occurred within the first two weeks of initiating treatment.517 The deceased’s clinical records do not suggest that his regular ingestion of pregabalin had caused any adverse effects in the past. Whilst it may be, as Dr Hecker suggested in cross-examination, that the effects of pregabalin might alter due to weight loss and reduced renal function, I am not satisfied, without more, that pregabalin impairing the deceased’s cognitive function whilst in the RAH is more than a bare possibility. 622 With respect to fentanyl, whilst this had been prescribed or authorised for administration on an hourly basis, it was in fact only administered to the deceased twice, on 4 February 2021.518 The possibility that it was actively affecting his cognitive function on 10 February 2021 can, in my view, be excluded as a reasonable one. Dr Hecker’s evidence on this topic was that the medication may have had a longer half-life in the deceased’s case.519 She also made the point, that in the context of palliative care, the frequency at which drugs may be approved for administration will reflect a focus on patient comfort rather than necessarily avoiding any longer term impacts.520 Whilst I can accept these propositions, I exclude as unrealistic the proposition that the fentanyl administered on 4 February 2021 was materially affecting Paul’s cognitive function some six days later on 10 February 2021, particularly given the various interactions in between times that I have emphasised. 623 With respect to hydromorphone, I return later to the potential significance of the three doses administered on 10 February 2021. 624 Otherwise, with respect to hyoscine (10mg oral), hyoscine (20mg subcutaneous injection), midazolam (2.5mg subcutaneous injection) and haloperidol (0.5 to 1mg subcutaneous injection), Dr Hecker agreed in cross- examination that, despite being prescribed, these drugs were never in fact administered to the deceased.521 When cross-examined about the mention of these drugs in her report, I considered Dr Hecker to be somewhat defensive and argumentative. I reproduce part of the exchange below:522 Q Can I refer you back to your report then and the passage I took you to, after listing all of those drugs in the way that you did, you then say ‘All of these drugs have impact on alertness and cognition’. 516 Exhibit R23. 517 Exhibit R19. 518 Exhibit R22, p 1064. 519 Tr 862.21-863.1. 520 Tr 863.33-38. 521 Exhibit R22 pp 1063, 1069, Tr 860-863. 522 Tr 864.1-865.11. -- 154 of 192 -- [2026] SASC 115 B Doyle J 153 A That’s correct. Q What possible relevance to the references to the two different dosages of hyoscine, midazolam and haloperidol, what possible relevance do they have to the proposition that there are impacts on alertness and cognition, if they were never given to him. A Well, I’ve just summarised the things that were on his drug chart that might have had an impact on alertness and cognition. I didn’t say they were given. Q But I suggest to you that anybody reading this passage in your report would infer that they were given because of what you then say ‘All of these drugs had impacts on alertness and cognition’. That’s, I suggest, the plain reading of what you put there. A That isn’t what I said in my report. Q That’s not what you said. A No, I did not say that they were given. Q All of these drugs had impacts on alertness and cognition. A I’ve said what the orders were. Q What does it matter what orders were given if they weren’t given to him, they can’t have any impact on his cognition, can they. A Not if they weren’t given, no. Q Then why refer to it in the way that you did in this report. A Because I probably didn’t look through every single record - to actually get this you have to go into every drug on the computer. It’s not that easy. I summarised the orders that were there, for which medications potentially impacting and certainly, he was taking some of those things. Q But I return to my question; what is the purpose of summarising the effects on cognition of drugs that this man never got. There’s no purpose, is there. A That’s not the case for all of those drugs. Q It’s the case for the ones I read out. What’s the purpose of listing them with all of the detail you did there, unless it was to create the impression that this man was getting all of those drugs and they all impacted on his cognition. I suggest that’s what you did. A Well, I can only disagree with you. 625 Returning to Dr Hecker’s report, her summary opinion was extracted earlier in these reasons. The more detailed reasoning is extracted below, with paragraph numbering included for ease of cross-reference. OPINION: 1. When admitted to RAH in early February 2021 Mr Macdonald was extremely unwell – markedly anaemic (haemoglobin less than half the normal level); actively bleeding -- 155 of 192 -- [2026] SASC 115 B Doyle J 154 from the gastrointestinal tract (bleeding with continued through his RAH admission with ongoing evidence of melena and further drops in haemoglobin despite transfusion); hypotensive with systolic blood pressure 75 (also only about half normal); evidence of shock on blood parameters (including very high lactate); evidence of sepsis (based on white cell count elevation and CRP rise and positive blood culture); evidence of both renal impairment (elevated creatinine and urea and poor urine output) and liver failure (hepatic flap, and elevated LFT’s) precipitated by gastrointestinal bleeding; and evidence of delirium with confusion, hallucinations, and impaired attention. The background and current imaging at that point showed widespread progressive metastatic colorectal cancer despite aggressive treatment with surgical and oncological treatment for almost 5 years. 2. He had clear impairment of function at home which appeared to be quite a chronic situation based on the photos and ambulance reports. It does not appear this had occurred only in the last 4 weeks he reported increasing physical symptoms. I do not have any evidence of whether he had any prior cognitive symptoms identified or treatment for such but this documented evidence supports a more longstanding cognitive problem. There was a history of depression reported but he was not taking any antidepressant treatment from his admission drug list. Information provided by his cousins would support he was declining for many months both in respect of cognition and also gait. This is entirely consistent with my predictions based on the presentation of his house. His oncologist and GP may be able to provide further information. 3. The deceased did have a full hand of vascular risk factors – hypertension, diabetes and hypercholesterolaemia. His brain CT scan (I have only the report – I have not seen the pictures) suggests chronic subcortical vascular disease. The extent can be reported very variably and viewing the films is helpful. This would certainly explain the chronic decline in gait, falls, progressive impairment in self and home care and the visual hallucinations. This is the most likely explanation for the progress of his impairment and his cognitive presentation in hospital. 4. His confusion and impaired attention in hospital could be associated with several possible underlying brain pathologies. He could have had a simple delirium due to the significance of his other physical pathology. This could explain the fluctuation and the clinical picture. I think it is more likely, however, that there was an additional background chronic brain pathology. This is more consistent with the obvious ongoing issues with his home maintenance which pre-date the hospital admission by a significant period. If there is a background pathology in the brain, he is much more likely to suffer a superimposed delirium, so a combination is very likely. Possible background pathologies include subcortical vascular pathology (for which there is evidence on the brain scan) and he had all the risk factors associated with his (hypertension, diabetes, hypercholesterolaemia). Finally, the prominent visual and auditory hallucinations and the fluctuation of attention and alertness would also be consistent with dementia with Lewy Bodies. These two chronic and progressive dementias present in a similar fashion with similar symptoms and the course described in the notes could be consistent with either of these or potentially a mixture of both. They are both associated with fluctuations of cognition and impaired attention. Unfortunately, there was no objective assessment of cognition (although the palliative care registrar did perform some brief beside assessment on 8-02-21 documented above). Some of the nursing and medical notes are telling in relation to cognitive impairment. The palliative care registrar on 8-02-21 noted he was disorientated to date even though he had just had a birthday and was unable to name the months of the year backwards (managed only two) – a bedside test of attention. The same person also commented on the day following the Will provisions -- 156 of 192 -- [2026] SASC 115 B Doyle J 155 that the deceased had been quite drowsy the previous morning (which was when he provided instructions to the lawyer). 5. It would appear from the regular nursing assessments that his alertness and cognition was at a low point on the day his Will instructions were taken. As above the nursing charts reflect abnormalities which were not documented in these charts to be present on most of the prior days. The documented nursing statements seem to be supported by the palliative care and some other medical comments. His haemoglobin had once again dropped quite low – 73 the day prior to his Will provisions – and he had ongoing active bleeding. He had an increasing amount of narcotic analgesia which he himself noted was associated with drowsiness (particularly when taken in addition to regular pregabalin). He had 3 doses of narcotic (hydromorphone) in the 24 hours on 10-02-21 compared to no more than one dose on previous days. He was also taking other regular medication which had a negative impact on alertness and cognition – pregabalin was given regularly and a number of the PRN drugs were ordered (described above). It is clear he had lost significant weight in recent weeks – 10Kg – and this would be associated with a reduced volume of distribution for drug and hence an increased drug effect and side effect. I note the nursing notes on the day he provided instructions for the Will, described him as having trouble with communicating his basic physical needs – this seems inconsistent with someone who was able to weigh up varying options regarding their testamentary distribution and communicate this effectively to a lawyer. Of note he seemed not to mention one of his cousins when instructions were first drawn up and the lawyer’s notes report he only agreed to this after she raised it. 6. He had not made any provisions for legal documents despite knowing for several years that he had a progressive metastatic malignancy – this certainly supports some impairment in the executive brain function – likely impairment in planning and organisation and / or potentially insight. He had not given thought to his wishes for the extent of his medical care despite his deteriorating health status, and was not certain about his care directives when this was discussed shortly after his admission. He had not prepared an Advance Care Directive. 7. I believe he was suggestible and likely to be readily influenced by those around him. This is supported by his failure to initially suggest one of his cousins as a benefactor but ready agreement to change this on suggestion of his lawyer. It is apparent in the medical, nursing and social work progress notes there appeared to be some conflict and difference of opinion between his cousin, Lynn, and his friend, Cate. This was discussed in relation to his decision about which hospice to transfer to and he seemed changeable and suggestible in relation to this issue. This is important in relation to potential influences on his testamentary directions. It is notable that his friend, Cate, was present in the hospital on the morning he provided instructions for his Will and spoke to the lawyer involved. 626 In paragraph [2], Dr Hecker attached significance to what could be inferred from photographs and ambulance reports and considered that the impaired function these suggested was not likely limited to the last four weeks whilst he had experienced increased physical symptoms. However, Paul’s house had been in a cluttered state due to his hoarding for a very long time, and during periods when there is no satisfactory evidence to suggest that his executive function was materially impaired. To the extent that Dr Hecker proceeded on the basis of reports of Paul’s cousins that his cognition had been declining for many months, on the -- 157 of 192 -- [2026] SASC 115 B Doyle J 156 basis of my findings, this overstates the extent of any apparent or evident cognitive decline. 627 In paragraph [3], reference is made to a ‘full hand of vascular risk factors’, which are said to be consistent with chronic subcortical vascular disease as suggested by the CT scan report. In cross-examination, Dr Hecker was taxed with the proposition that references to hypertension, diabetes and hypercholesterolaemia were contained in the records reviewed by Dr Hecker when she had expressed her preliminary opinion to Mr Solomon. In the course of that discussion, the effect of Mr Solomon’s note was that Dr Hecker said there was a brain scan ‘which did not show anything’. Whilst Dr Hecker was unclear about whether she had received the entirety of the RAH records (which had been obtained by way of Freedom of Information application) prior to her conversation with Mr Solomon, I find that she did. Dr Hecker was not able to recall exactly what she had said about the CT scan report, and was reluctant to accept that she had used the words attributed to her, because she said that was not her position about what the CT scan report said. As she put it ‘it’s there in black and white in the actual report’.523 She said she may have said words to the effect that the report did not show anything ‘acute’.524 As earlier indicated, I am prepared to accept that this, or something similar, such as that the report did not show anything ‘significant’, was said. In reaching the conclusion that Dr Hecker might have expressed herself on the basis that the CT scan report suggestive of chronic subcortical vascular disease was not something that she regarded as relevantly acute or significant, I take into account Dr Hecker’s comment in cross-examination that:525 … actually, I wouldn’t normally make a judgment about someone’s ability to give instructions for a will based on the appearance of a scan, because as I’ve tried to point out today, the scan isn’t the central thing. The central thing is whether someone had cognitive impairment and, you know, whether they understood all of the relevant factors that are needed to be making a will. I don’t feel like the brain scan’s the most important thing. 628 In respect of paragraph [4], again, it was put to Dr Hecker that so far as the matters she relied upon as supporting background chronic brain pathology (as distinct from the physical pathology associated with his physical condition) as a or the cause of his fluctuating confusion and impaired attention, they were all matters disclosed by the materials she had reviewed when expressing different views to Mr Solomon. Further, and in any event, when it was put to Dr Hecker that physical pathology (that is, the underlying metastatic disease) was likely the cause of simple delirium, Dr Hecker said:526 Well I’m sure it is … He almost certainly had delirium, but it was what things might have been additional or contributing to that, so people with background cognitive impairment are much more at risk of delirium so. Whether that background impairment is chronic 523 Tr 807.13-17. 524 Tr 798.16-20, 807.27. 525 Tr 805.11-19. 526 Tr 808.9-30. -- 158 of 192 -- [2026] SASC 115 B Doyle J 157 small vessel disease or alcohol related brain damage or obstructed sleep apnoea, related changes to brain, or, you know, and a neurodegenerative disease, all of those thing make somebody more likely to have a delirium. And when this man actually came to hospital he was a very sick man. I mean, I’m not at all surprised he had a delirium, we can all be delirious if we have enough of an insult, so even with a completely normal background brain if you have enough insult you can be delirious. You know, I guess the questions about whether there were additional factors to the delirium are a little bit academic because what really matters is what was the state of his cognition and executive function at the time that he gave the instructions, I mean, what contributed to that is somewhat academic. 629 In respect of the ‘telling’ nursing and medical notes, it was put to Dr Hecker that her survey was incomplete or unrepresentative. In respect of the very last sentence (apparently attributing drowsiness to the time of provision of instructions for the will), this was also a matter raised by Dr Hecker in cross-examination, when countering the significance of Dr Cursaro’s observations and evidence about Paul’s presentation on 10 February 2021. In fact, the note to which Dr Hecker was referring was a note made by Dr Brook, not Dr Cursaro, and the reference to drowsiness the previous morning was a reference to a time later in the morning, after the will instructions had been taken and a dose of hydromorphone was administered.527 630 In respect of paragraph [5], I do not consider that Paul’s alertness and cognition were, so far as the hospital observations and the lay evidence reveals, at a ‘low point’ on the day the will was taken. As earlier noted, the instructions were taken before any hydromorphone was administered, and when the solicitors returned much later in the day Paul recalled the instructions he had earlier given and there was nothing in his presentation to suggest an obvious deficit. 631 In respect of paragraph [6], I do not place any significance on the fact that Paul had not previously made a will despite knowing for several years he had a progressive form of cancer. I do not consider this was indicative of likely impairment in planning and organisation or insight. Dr Takhar and Dr Curssaro both said that in their experience it was common to see patients close to the end of their life who had not attended to legal documents for one reason or another and without a deficit in their executive function.528 As I later address, Dr Innis agreed in cross-examination this was a weak indicator of any compromise in executive function. Whilst I have ultimately concluded that Paul was keen to put his affairs in order whilst in the RAH, and did give attention to the matter, my sense is that his failure to have done so at an earlier stage is more likely indicative of a reluctance to face up to the reality of his approaching death, combined with the fact that as a non-materialistic person with a relatively modest estate and no dependants, the making of a will was perhaps less of a priority than for many other people. In closing submissions, the applicants’ counsel acknowledged that the failure to have made a will earlier was not a particularly significant matter and was not at the forefront of their case.529 I would also not attach any particular 527 Tr 791-793. 528 Takhar-2, [8]-[9], Cursaro-2, [8]-[9]. 529 Tr 1020.32-33. -- 159 of 192 -- [2026] SASC 115 B Doyle J 158 significance to the fact that Paul did not prepare an advanced care directive in the period up to and including shortly after 10 February 2021. 632 Paragraph [7] might be thought to stray beyond an expression of medical opinion into a contentious interpretation of the conduct of others, albeit I accept the line is hard to draw. In any event, I do not consider that Paul’s ultimate decision to go to the QEH was the result of influence so as to suggest he was suggestible (and compromised in terms of his executive function). On the contrary, and with the benefit of Dr Cursaro’s evidence, I consider that his engagement with this issue is some positive evidence of executive function. Dr Hecker’s second report 633 Dr Hecker prepared a second report dated 30 August 2024,530 following receipt and review of Dr Innis’ first and second reports531 and some additional medical records (most relevantly, Paul’s clinical records from the Trinity Gardens Medical Centre).532 634 Dr Hecker agreed with many of the matters in Dr Innis’ first report, including that it was likely the deceased was cognitively impaired for some time prior to his admission. She considered the state of his house was ‘certainly support for this’, as was the fact that he had not arranged legal documents prior to this point, despite knowing of his metastatic cancer for some time. As will be observed later, Dr Hecker’s opinion regarding the state of Paul’s house appeared to proceed upon the premise that power had been disconnected and that this reflected Paul’s inability to manage his finances. I have not accepted that assumption. 635 In respect of Dr Innis’ second report, Dr Hecker: • agreed with the part of Dr Innis’ report in which she said she was ‘surprised’ to read the ‘Adelta Legal Instructions’ as part of the draft will completion because his apparent ability to provide those instructions was ‘discordant’ to the medical records of ‘a man that was hallucinating, delusional and confused both before and after providing the will instructions’, and in which Dr Innis said the deceased’s change in position regarding Maurice was ‘troubling’; • expressed a level of disagreement with Dr Innis’ proposition that Alzheimer’s pathology might equally be an explanation for cognitive impairment. Dr Hecker preferred the hypothesis of vascular cognitive impairment. However, she noted it would be useful to view the brain scan films to assess whether he had hippocampal and medial temporal atrophy to support Alzheimer’s disease; 530 Exhibit A15. 531 Exhibits A12 and A13. 532 Exhibit R23. -- 160 of 192 -- [2026] SASC 115 B Doyle J 159 • expressed a level of disagreement with Dr Innis’ view that Lewy body dementia was not a likely possibility on the basis of an absence of reported visual and auditory hallucinations prior to admission and the absence of a typical tremor; and • acknowledged that it was possible, as Dr Innis had observed, that the failure to prepare a will at an earlier time may reflect that doctors treating the deceased may have avoided delivering an unambiguous prognosis. 636 In relation to Paul’s clinical records, Dr Hecker drew attention to his history of sleep apnoea, observing that this can be a cause of cognitive impairment. She also referred to his treatment of bilateral arm pain with pregabalin, which she said is ‘associated with confusion’. Dr Hecker also noted hypertension, significant weight loss (which can affect the impact of medicines) and the deceased’s treatment for depression. Dr Hecker said depression is commonly associated with subcortical vascular pathology and Lewy body dementia. In this context, Dr Hecker described Paul as having had a ‘significant mood disorder’. However, as was pointed out in cross-examination, the records do not suggest that a diagnosis in those terms was in fact made.533 637 Dr Hecker also referred to a record of a hepatobiliary meeting in November 2016 in which Paul was described as having ‘co-morbidities of diabetes, hypertension, obstructive sleep apnoea, depression and alcohol (++) use’. She said these were all factors contributing to cognitive impairment and that the first three in particular contribute to small vessel disease. 638 Dr Hecker then continued that having reviewed the further material and Dr Innis’ reports, she had not changed her prior opinion. She said that: I continue to believe Mr Macdonald had significant executive cognitive impairment which impacted on his ability to provide instructions for a Will during his final hospitalisation. His general physical state of health and his medications were relevant factors in this impairment. I continue to believe that subcortical small vessel ischaemia (vascular cognitive impairment, likely moderately severely extensive) was the most likely predominant aetiology based on his presentation (despite the lack of objective cognitive testing). Further factors which were mentioned in the notes include alcohol intake – this is referred to in one note (multi-D treatment team re cancer treatment options) and may well be a contributor, his depression which was obviously longstanding and had not been treated for many years, and his severe obstructive sleep apnoea is another important factor influencing vascular pathology and cognitive impairment. Nothing I have read excludes dementia with Lewy Bodies and the clinical presentation would fit with this, however I believe the vascular hypothesis is stronger. I continue to believe that it is more likely than not, Mr Macdonald lacked testamentary capacity at the time he provided instructions for his Will in hospital. 533 Tr 868.38-869.5. -- 161 of 192 -- [2026] SASC 115 B Doyle J 160 Dr Hecker’s oral evidence in chief 639 By the time she gave her oral evidence, Dr Hecker had reviewed the CT scan films, whereas she had previously only reviewed the radiologist’s report of a CT scan of the deceased’s brain. When asked whether that prompted any comment in relation to the issues addressed in her reports, she said that: • there was some periventricular hypoattenuation around the frontal lobes, an important area of the brain for executive function, although perhaps not as severe as she would have imagined;534 • there was definitely some atrophy in the frontal regions of the cortex;535 and • there did not appear to be hippocampal atrophy, which one would expect in somebody that had, for example, Alzheimer’s disease.536 640 Dr Hecker noted that having further reviewed some GP records and other medical records, alcohol may have been an issue for the deceased. For instance, she noted a multidisciplinary planning report for his bowel cancer in 2016 that documented ‘alcohol ++’. She also noted references to sleep apnoea. Dr Hecker said:537 So both of those issues are important in relation to cognition but may not show any changes on a scan as such, so they may not be associated with structural changes. Alcohol potentially leads to atrophy, and sleep apnoea can lead to central changes in executive dysfunction but doesn’t necessarily associate with a structural problem noted on a scan. So they were additional important things, and both might be relevant to the atrophy that was noted. 641 Dr Hecker said that the absence of hippocampal atrophy was supportive of vascular pathology, and that atrophy could be attributable to that or potentially the past history just described.538 She disagreed that the CT films simply reflected normal age-related change.539 Dr Hecker adhered to her view of a potential diagnosis of small vessel ischaemia, that is, potential vascular disease.540 She also clarified that whilst in her view alcohol was associated with a lot of problems including brain impairment it was not associated with small vessel ischaemia.541 642 Dr Hecker added, however, that:542 something I’d like to reinforce is that from brain imaging you cannot ever say what the clinical status of the patient is, that you need to do a clinical examination including 534 Tr 773.25-33. 535 Tr 773.36-38. 536 Tr 774.27-32. 537 Tr 774.18-27. 538 Tr 774.34-38. 539 Tr 777-778. 540 Tr 778.7-18. 541 Tr 778.28-35. 542 Tr 781.12-27. -- 162 of 192 -- [2026] SASC 115 B Doyle J 161 objective cognitive assessment, so you cannot make a diagnosis of a cognitive impairment or dementia from brain imaging. It’s used to support what the causes of abnormality may be but it does not give you a diagnosis … by itself. And even we do sometimes see people with remarkably impaired looking brains who are functioning quite well and the reverse because there are many factors acting together and sometimes there are factors that don’t lead to changes on the imaging. So you know I think that it’s a clinical diagnosis both delirium and dementia. Brain imaging is used in dementia to help with the reasons for that. 643 Towards the conclusion of her examination in chief, Dr Hecker agreed with the proposition, having viewed the films, that small vessel ischaemia was a ‘potential diagnosis’. That is, she maintained her view that there was ‘potential vascular disease’. 644 Her evidence in chief concluded with this exchange.543 Q I understand from the effect of your evidence that the observations made in respect of the CT scan are insufficient by themselves but you point to other factors set out in your reports that give rise to the potential diagnosis and in turn potential cognitive impairment. A Correct. But I think in the end what’s important is how someone is functionally and I think there’s a lot of evidence about that in the Royal Adelaide Hospital notes even though there wasn’t any objective testing as such. Q Those are the matters that you’ve set out in your two reports. A Yep. Cross-examination and criticisms of evidence 645 At the outset of Dr Hecker’s cross-examination, she accepted that the assessment of testamentary capacity involved a clinical judgment and that there were limitations in making a retrospective assessment.544 She agreed that a retrospective assessment was reliant on contemporaneous records and other contemporaneous evidence about the testator’s cognitive function.545 646 The respondent submitted that in the course of the cross-examination that followed, Dr Hecker was argumentative, volunteering non-responsive answers in support of a thesis, or attempting to anticipate and head off a challenge to her approach. 647 By way of example, in response to a question about whether the observations of family or friends about how the deceased interacted with them might be relevant, Dr Hecker said:546 Well there is some evidence available in the nursing records and at 5.02 in the morning on the day that he made the will the nurses wrote: ‘He’s pleasantly confused, stating ‘There’s 543 Tr 782.6-19. 544 Tr 782.21-30. 545 Tr 787.10-14. 546 Tr 787.15-26. -- 163 of 192 -- [2026] SASC 115 B Doyle J 162 something strange going on. There’s a Korean show on and people are dying, dying’. So, you know, that statement of a nurse only about four hours before he gave instructions for his will would suggest there’s definitely problems with his cognition. 648 Dr Hecker was then taken to the interactions that Dr Cursaro (who at the time was nearing completion of her training as a geriatrician) had with Paul about end of life care, and the fact she had not observed any red flags. The following exchange occurred:547 Q Her evidence was that on her dealings with him she detected no red flags that were - always something that she was on the lookout for. Allowing again for the fact that she didn’t test him formally for testamentary capacity, that would nevertheless be evidence, contemporaneous evidence that you would want to have regard to that gave some indication of his function, wouldn’t it A Yes. If I can just read from my report about her note from 11 February, the next day at 12.22 ‘Minimal history possible from Paul. Drowsy with incoherent sounds and words at times, although nodded when asked if comfortable. I note yesterday’ - which was the day of the will – ‘Paul was quite drowsy in the morning and more alert in the afternoon’. Q Sorry, where are you reading from. A From my report of 2022, p.5, 739 in the folio. And then it was the morning of the 10th that he actually gave the instructions to the lawyers. The other thing I would make note of here is the nursing assessment charts, that’s at the bottom of that same page in my report: 10 February ‘21, 10.30 in the morning ‘Communication and hearing: difficulty expressing basic needs’ is what the nurses wrote. Q Yes. A So I think that someone who’s having that level of trouble with basic communication is probably going to have trouble with the level of discussion that you need to give instructions for a will. Q What’s that got to do with the question that I asked you, doctor. A Just what you said, it’s information that’s from the time. Q The question that I asked you related to Dr Cursaro’s engagement with this patient. A And the - Q What has what you’ve got to do got to do with that. A The first thing I read you was what she said the next day. The palliative care medical assessment was her, on 11 February at 12.22, where she says ‘I note yesterday’ - the day of the will instructions – ‘I note yesterday Paul was quite drowsy in the morning’, which was when the lawyers were present. Q You might want to have a look at page - 547 Tr 791.14-793.21. -- 164 of 192 -- [2026] SASC 115 B Doyle J 163 A So I think that is relevant, it’s what she said at the time. Q You might want to have a look at p.1030, Dr Hecker, in the Royal Adelaide notes. A Yes. Q That’s a note by a medical officer Emma Brook at 12.22. A Yes. Q It’s not Dr Cursaro at all, is it. A No. All right, it’s not. Palliative care medical assessment. Sorry, it’s not her. Q Yes. The timing: are you aware of the fact that the instructions were given to the solicitor for the will in the morning. A Yes. Q And that he was given medication after the visit of the solicitors, after he gave the instructions. A I understand so, yes. Q And so the reference to the patient being drowsy is likely to be a result of the drugs he was given, which was after he'd given the instructions to the solicitors, isn’t it. A I don’t think it was given until after lunchtime. Q No. A Middle of the day. Q Yeah. A I did actually record that here. Somewhere I have documented exactly what was given. Q The hydromorphone at 11:10, 13:29 and 19:28. The solicitor came at 9 o’clock in the morning and came back at half past 5.00. A He had three doses of hydromorphone that day, I know that, and that may have affected things later in the day. But in actual fact this report suggests he was more drowsy in the morning, which is surprising, because the doses were given later. Three times on 10 February: 11:10, 13:29 and 19:28. So you know, most of the dosing was later in the day, and the palliative care registrar has said he was quite drowsy in the morning. He was on other medication that were - strong effects on cognition, particularly the pregabalin. 649 By way of further example, when it was put to Dr Hecker that she had first been asked to consider the deceased’s capacity in October 2021, instead of responding ‘yes’, she proffered that:548 548 Tr 794.5-9. -- 165 of 192 -- [2026] SASC 115 B Doyle J 164 Well I had a phone conversation with Mr Solomon and he provided me with not much information. It was mainly, have a look at a brief bit of stuff and a phone chat, and that was the end of it until I heard from Wallmans much later, mid-2022. 650 As has been observed, Mr Solomon’s letter to Dr Hecker included the entirety of the RAH records and requested that she contact him to provide a preliminary view about testamentary capacity once she had had a ‘thorough read’ of the material. In the cross-examination that followed, Dr Hecker was somewhat reluctant to accept, although she ultimate did, that she had had the entirety of the RAH records at the time she spoke with Mr Solomon.549 651 In the course of cross-examination, Dr Hecker was challenged with the apparent difference between her preliminary opinion and the opinion expressed in her written reports: in particular, it was put to her that opinions expressed in her reports had not found voice in her discussion with Mr Solomon, even though she had access to medical records disclosing the underlying matters supporting those opinions. Dr Hecker’s answers included that she could not recall what she might have said to Mr Solomon, that she doubted the accuracy of the impression created by his note and that, by the time of her report, she would have had a ‘closer look’ at the notes because when you are asked to provide an opinion (in writing) ‘you obviously read things with a finer tooth comb and write in more detail about your opinion’.550 652 Dr Hecker was next challenged about the fact that she had told Mr Solomon that she would want to see the will-maker’s notes before providing a detailed written opinion, and that she would also want to understand the context relevant to the state of the deceased’s home. As to the former, it was put to Dr Hecker that those notes suggested that the deceased had, without prompting, given a statement of his assets and the approximate value of them, and that this was consistent with having a capacity to understand the extent and nature of his estate.551 Dr Hecker responded:552 A Yes. I mean, if all of that’s correct and he wasn’t given a list of his assets, and nobody else was talking to him about that immediately beforehand. There are a whole lot of maybes and ifs in all of that. Q The matters that I want to bring to your attention are what you’d been provided with by the solicitors included this will proforma, and it included the statement of the solicitor as to the manner in which that information was obtained by her. A Yeah. There’s quite a lot of information from that day that doesn’t really gel together. So you know, that’s not really consistent with the nursing notes of the same time that suggest that he was – 549 Tr 800.35-803.3. 550 Tr 804.2-813.12. 551 Tr 818.1-12. 552 Tr 818.13-819.19. -- 166 of 192 -- [2026] SASC 115 B Doyle J 165 Q Why are the nursing notes sacrosanct. Is that because they assist the thesis that you are promoting, doctor. A No. I mean, they are an independent, completely unrelated judgment of his function at the time. I do think that’s important. Q If the solicitor goes in alone, asks non-leading questions, and elicits all of the information in relation to his asset pool, which is broadly speaking correct; if that’s the case, surely that aspect or the testamentary capacity would, at least on its face, appear to have been met. Don’t you agree. A Yes. I’m not certain whether the giving of all of the assets was on a written bit of paper or whether he verbally told the solicitor. Q You had the solicitor’s statement, and the solicitor said she asked him the questions and he volunteered the information. That was before you in the material that Wallmans gave you. If that be the case, I repeat my question to you that if that be the case, then you had before you evidence which was strongly indicative that at least in respect of that aspect of the test of testamentary capacity – A That he understood his assets? Q He understood it. A Yeah, I that’s correct. Q Right. Whey didn’t you put that in your first report. Why was the only thing you put in your report the bit about leaving Maurice out. A I guess because all of this didn’t totally fit with the rest of how he functioned that day in the hospital, and the nursing notes that were consistently recorded in different times of his function. 653 Whilst this limb of the Banks v Goodfellow test was not seriously in dispute by the end of the trial, the significance of the cross-examination, at least in the respondent’s submission, is that it showed that Dr Hecker had been selective in the material that she included in her report and had not included material that did not ‘fit’ with the opinion she expressed. A similar issue was raised by the cross- examination of Dr Hecker about the way in which she had selected excerpts relating to cognition from the nursing and other notes.553 That line of cross- examination culminated in an exchange in which Dr Hecker was asked why she had not included a particular reference to the Paul having been alert and orientated. Dr Hecker responded:554 Because I can’t put in what the nurses said every eight hours, you know, I have to give a summary of how things are overall and point to the things that I think supported what my belief is, that he didn’t have capacity, having looked at the whole lot. But I can’t point you to every piece of information and say ‘Well, it looks like he was alert and orientated that time’. … 553 Tr 836.23-841.18. 554 Tr 841.12-33. -- 167 of 192 -- [2026] SASC 115 B Doyle J 166 654 A few moments later, this exchange occurred:555 Q I want to pick up something that you said at the commencement of that rather long answer. And that was this, that you put in the material that supported the opinion you had that this man lacked capacity. That’s what you said wasn’t it. A Well, that’s correct, but I guess I’ve read all of this documentation, and delirium is a fluctuating condition where attention and alertness fluctuates. 655 And later, when challenged with the proposition that a reader of the report might understand or expect Dr Hecker’s summary of relevant factual information to be representative, Dr Hecker said:556 A Well, I’m saying the relevant information that leads to my opinion, which is summarised in the opinion section. It’s the documented evidence of why I had the opinion I had. It’s not that I haven’t looked at anything else. But you would not be able to read the report and you wouldn’t want to pay for it if I had to put in every bit of information. That’s just unrealistic. Q No, but can I suggest that what would be entirely inappropriate would be to selectively delete material which was contrary to the suggestion that he had incapacity. That wouldn’t be appropriate, would it. A I haven’t deleted any material, it’s all there in the notes. 656 Later again in the course of cross-examination to the effect that Dr Hecker’s summary of the medical notes was selective or imbalanced, Dr Hecker said:557 Perhaps I should have titled it ‘Relevant information to support my opinion’ or just given the opinion and not detailed all of this, which is all in the notes. 657 I indicate here that if the alternative explanations for Dr Hecker’s approach are that Dr Hecker chose not to include material with a view to justifying a position for which she was merely advocating,558 or that she decided not to include material that she had considered but which had not ultimately dissuaded her from an opinion that she honestly held, I prefer the latter. As I earlier indicated, I did not doubt that Dr Hecker held the views she expressed. However, that does not entirely answer the cross-examiner’s criticism. Ideally, an expert should lay out the material that they considered might point in a different direction to the opinion expressed and, to the extent relevant and possible, should explain why they have not been moved by that material. Of course, there are limits to this, and there may be questions of degree, but a report that presents a balanced summary of the relevant material, together with an explanation of the expert’s reasoning in respect of the material 555 Tr 841.34-842.3. 556 Tr 844.16-28. 557 Tr 856.28-30. 558 The suggestion that she tailored her reports so as to be supportive of the opinion she was expressing was put to Dr Hecker and she said that whilst she could understand why the cross-examiner was thinking that, she rejected the suggestion, explaining that she included in her report the matters that had driven her to the conclusion she had reached, but that it was not possible to go through ‘every minute’ of the deceased’s time in hospital: Tr 843.11-844.9. -- 168 of 192 -- [2026] SASC 115 B Doyle J 167 contraindicating the view they express, will usually be of more assistance to a Court. 658 Returning to the issue of the evidence about how the instructions for the will were taken, when challenged in cross-examination along these lines, the following exchange occurred:559 A I think when you’re looking overall, you need to weigh up what you give weight to and what information you’ve got about the person both in background and on that day. You know lawyers have lawyers for slanting things in a certain way too, and if they don’t come out thinking that a person doesn’t have capacity, then they don’t get to do the will. And so, you know, they’re not – no-one’s – not many people are intentionally dishonest but we all have a slant to how we’re working, I guess. I mean I just gave more weight to some of the other information that was completely unbiased and that it was from individuals working in the hospital who were there over an eight-hour period that’s relevant at that point, and who are documenting things that they’re finding; skilled people looking after patients. I feel that that’s – I weighted that more than the lawyers. Q You didn’t even expose that reasoning process in your report. A Well, I think that’s – Q You just didn’t even refer to it. A – I think that’s what we do, is the process of looking at all of the information that’s available. Q But what about this as an alternative explanation; that the solicitor, who’s actually sworn an affidavit and given sworn evidence in this case consistent with what’s in her statement, was actually telling the truth. A I’m not saying she wasn’t telling the truth. Q If you’re not saying she wasn’t, then surely it follows that in respect of that aspect of testamentary capacity there was strong evidence of the fact that he did have that capacity to understand the extent of his estate and you just decided to leave it out. A Did I say that he didn’t know what his – I don’t think that I actually said that? 659 I interpolate at this point that in fact in her second report Dr Hecker did express agreement with Dr Innis’ opinion that whilst it was possible the deceased would have known what his estate included it was ‘more likely than not that he did not understand the extent of his estate’.560 The cross-examination continued:561 Q … but if we are talking about his cognitive ability at the time of making a will and there is contemporaneous evidence that he was able to describe his estate with reasonable accuracy in general terms what it comprised then that of itself, I suggest, 559 Tr 821.28-823.19. 560 Exhibit A15, page 2. 561 Tr 823.33-825.20. -- 169 of 192 -- [2026] SASC 115 B Doyle J 168 is evidence of his cognitive functioning being sufficient to have capacity to make the will. A Well I think the main thing that’s [at] stake in most of these situations is not the ability to remember what you own, roughly. It’s more about the ability to weigh up pros and cons and working out the benefits and drawbacks of various testamentary divisions. I mean, that’s the more complex part and that’s usually the part that I find is where people fail to have capacity to provide instructions for a will. It’s not – it’s usually not the understanding of what a will is. It’s usually not having a vague understanding of what their assets are and it’s not usually understanding who the potential beneficiaries are. The main reason that people are not fit or unable to provide testamentary provisions is usually that they can’t weigh up the options and understand the different options and look at the pros and cons, and that reasoning process. Q But you’ve already answered a question of Mr Ower’s earlier on that such changes that you see on the CT films that you’ve described to his Honour, they don’t necessarily translate into cognitive impairment. That’s got to be a clinical judgment based on the activities and operations of the patient at the particular time. A Mm. Q That’s right, isn’t it. A That is right, but you know – Q Right. So when you’re making a retrospective assessment like you were, if there’s one aspect of the contemporaneous evidence which indicates that this man was not cognitively impaired in being able to describe, without leading questions, the nature and content of his estate, that is surely a positive indicator of his overall cognitive function. A Well it’s not consistent with the same man who, less than an hour before, could not give the day or the month according to the medical document that day and had been hallucinating all night. So – Q So if his Honour accepts the solicitor as to the process by which that information was elicited from Mr Macdonald, namely in non-leading questions alone volunteered by him in the detail that he did, if his Honour accepts that’s what happened and accepts that the solicitor is giving truthful evidence on her oath as a practitioner of this court, if his Honour accepts that then that might raise a question about how much you can rely on the nursing note, mightn’t it. Because the inconsistency doesn’t necessarily have to be resolved by ignoring what happened with the lawyer, surely. A Well, I think it represents a man who was certainly fluctuating and who was certainly very impaired and very unwell. And, you know, I guess when I look at the likelihood of him being able to weigh up the options that he had available to him, I think I stand by what my thought was. That he was more likely than not not able to do that. 660 The cross-examination demonstrated a difficulty that arises from omitting reference to material that an expert has considered but not ultimately found to be influential on their opinion, namely, that they may have attributed less weight to, or put to one side as unlikely, material that did not appear to them to be consistent with a body of other material accepted by them. The difficulty is that the Court -- 170 of 192 -- [2026] SASC 115 B Doyle J 169 may take a different view of some of the underlying matters. The reason for doing so may involve a different assessment of matters that are not within the expert’s specialised skill and learning (such as the possibility of subconscious bias on the part of a solicitor taking instructions for a will). It will be important for the Court to understand the extent to which, if a matter is accepted as accurate, it would cause the expert’s views to be different, either in absolute terms or in terms of the confidence they express. In the end, the cross-examination enabled the Court to understand that, even assuming the events unfolded as Ms Cortazzo described, Dr Hecker would adhere to her view, but she acknowledged that Ms Cortazzo’s evidence, if accurate, would tend to reinforce fluctuation in the deceased’s cognitive state, rather than a more constant state of impairment. 661 By way of further illustration of this difficulty, in answering why aspects of the oncology ward round note of 8 February 2021 (set out in the table earlier) were not included in her report, Dr Hecker proffered that the words in question ‘sounds like a doctor who was one month into his work as an intern’.562 When it was then put to Dr Hecker that the intern would be a scribe for the consultant, Dr Hecker said ‘They are, but I can tell you that they don’t always put in there what you think and what you said’.563 Putting to one side whether that is the case, the fact that an expert has attributed no or less weight to an entry based on a proposition of that kind should ideally be exposed in the report rather than by way of cross- examination. 662 Another matter taken up in cross-examination was Dr Hecker’s emphasis, in her second report, and in her oral evidence, upon alcohol misuse as a possible alternative explanation for the atrophy upon which she commented in the CT scan films. The point made was that the basis for this was a single reference in a multidisciplinary meeting report in 2016, but that there were four other references in the medical records which tended to suggest that the deceased consumed minimal alcohol or did not misuse alcohol.564 As earlier indicated, I do not consider there is a sufficient basis in the evidence to conclude that the deceased misused alcohol, at least not consistently over the decade or so prior to his acute illness. 663 The cross-examination of Dr Hecker concluded with an exploration of whether Dr Hecker’s opinion would be different if, contrary to her assumption, the deceased had not been suggestible in relation to his end of life care, if, contrary to her assumption, he had been managing his finances, and if he had been assisting friends with tasks like editing documents. Broadly speaking, Dr Hecker’s evidence was that none of those things would necessarily demonstrate that there was no impairment of executive function. The line of cross-examination culminated with the following exchange.565 562 Tr 850.32-33. 563 Tr 851.6-7. 564 Tr 870-872. 565 Tr 877.22-878.37. -- 171 of 192 -- [2026] SASC 115 B Doyle J 170 Q Would you agree with me that if Mr Macdonald, prior to his emergence admission, was attending to his financial affairs, that is paying his bills as they fell due, both utilities, credit cards etc., that would be evidence consistent with intact executive function, wouldn’t it. A To some level, but I believe he wasn’t. There’s evidence from Alicia’s report that he wasn’t paying his power bills, and the ambulance had actually said that the power was cut off at home when they collected him. So, you know, at least for some period he was not doing so. Q Well just let me deal with that matter, if I may. If the fact of the matter was that the power was not disconnected, that it was in fact still intact, he hadn’t had the power disconnected. Assume that. And assume that he was paying his bills on time, or at least as they fell due, managing his finances. If they [had been] the facts, that is an indication of intact executive functioning, isn’t it. A Not completely. I mean, it’s one thing that supports that he’s got capacity to do some things, but you know the executive function covers many areas, it does not mean he doesn’t have deficits. Q No, but it certainly would be an indicator that the executive function of the brain required to manage your finances was intact, wouldn’t it. A He had a reasonably good background education, you know, this man. He’d worked as a teacher, I believe, he had tertiary training. Q Is there any particular reason - A You know, I mean it’s all relevant but you know, I mean I see many of my patients who can still pay bills but are very impaired. So, I don’t think that that’s a categoric. You know, you could say ‘Yes it probably points a positive rather than a negative’ but it’s not a guarantee that their executive function’s intact. Q If he was in - when he was in hospital in February ‘21, he was giving instructions to people requesting them to pay bills which were due to be paid. That would be an indication of, at least to that level, his executive functioning while in hospital was intact too, wouldn’t it. A No, not intact. Not necessarily, it was never tested, all right. People can do [perfunctory] duties like that and still have a lot of deficits. He was also fluctuating a great deal. There are other times in there where, you know, they describe that he had difficulty expressing his basic needs. So, that’s completely inconsistent with someone that’s providing instructions to pay bills. So, there was a lot of variation in his function over that period of time, there’s no doubt about that, quite consistent with the delirium. Observations 664 There were some unsatisfactory features about the way in which Dr Hecker’s reports were prepared (they were not explicit about the facts assumed to be correct, they did not present a complete picture of some aspects of the material, and they did not expose the author’s reasoning for not giving weight to aspects of the material to which no reference was made), and there were some unsatisfactory -- 172 of 192 -- [2026] SASC 115 B Doyle J 171 features about the way she gave evidence (numerous answers were argumentative, defensive or non-responsive). 665 This does not mean that her evidence should be rejected as of no assistance to the Court. An expert may be argumentative but their reasoning may remain cogent. Defensiveness can be a natural reaction to a robust challenge. However, the matters to which I have drawn attention have made it more difficult confidently to extract assistance from Dr Hecker’s evidence in circumstances where the factual basis upon which I will make my assessment of capacity differs in various respects from the basis upon which she proceeded. In other respects, the factual basis for her opinions was not pellucidly clear from her report and was left to be explored in cross-examination occurring some considerable time after the opinions were formed. The lack of clarity about the factual basis upon which the first report proceeded also makes it difficult to assess the significance to be given to the fact that Dr Hecker’s views evolved between the time of her conversation with Mr Solomon and the date of the first report. There is no necessary difficulty with an expert’s views changing or being refined with greater reflection. But where the process of reasoning is not exposed in detail, and where the written report was in response to a letter of instructions which emphasised a number of matters in a way that does not align with my findings, it becomes more difficult for the Court to accept that the reasoning that underlay the second impression, as distinct from that which underlay the first, is the more reliable. 666 I have had regard to the entirety of Dr Hecker’s evidence and have borne in mind the considerable expertise and experience that she possesses. I draw the following propositions from her evidence: (1) the CT scan films are consistent with small vessel ischaemia and potential vascular disease; (2) the deceased’s reported history of hypertension, diabetes and hypercholesterolaemia support that possible diagnosis; (3) a conclusion that the deceased in fact suffered from vascular disease (or any other underlying brain pathology) so as to materially affect his cognitive function in a relevant sense cannot be made without contemporaneous evidence about his function; (4) confusion and impaired attention including hallucinations could be explained by the deceased’s underlying physical pathology, but if he was suffering from a pre-existing cognitive impairment by reason of underlying brain pathology, this may have made more extreme or pervasive his confusion and impaired attention when he became physically acutely unwell; and (5) a person may engage in some interactions in an acceptable and normal way despite having deficits in their executive capacity. 667 I place much less weight on Dr Hecker’s opinions about the likelihood that the deceased was suffering an underlying and chronic brain pathology that materially impaired his cognitive ability both prior to and following his admission to the RAH. Those opinions drew upon factual matters I have not accepted or lines of reasoning I have not found persuasive (including, but not limited to the nature and extent of the deceased’s issues with depression and alcohol misuse, the question what could be inferred from the state of his house and his attention to financial obligations, the extent to which some hospital notes reflected the -- 173 of 192 -- [2026] SASC 115 B Doyle J 172 considered views of consultants, the extent to which Ms Cortazzo’s account could be accepted as accurate, the timing and likely effect of medications, and the proposition that at the time he gave instructions for the will his alertness and cognition was at a ‘low point’). I also consider Dr Hecker’s evidence understated what could be inferred from the deceased’s executive function in periods where he was not ostensibly confused and was ostensibly lucid and responsive. I further consider that Dr Hecker’s report (and her reasoning) gave more prominence to reports of hallucination and confusion than my survey of the medical and lay evidence. Dr Innis’ evidence 668 As earlier noted, Dr Innis prepared two written reports and gave oral evidence. Dr Innis’ first report 669 Dr Innis related some of the deceased’s complex medical history before noting the CT report and its reference to ‘likely small vessel disease’. She noted that this would not be unexpected given the history of hypertension, hypercholesterolaemia and diabetes. She said that individuals with small vessel disease often experience cognitive impairment and are particularly vulnerable to delirium in times of medical illness. 670 Her report opined that capacity was decision specific and she was unpersuaded that Dr Takhar or Dr Sansome were in a position to express an opinion relevant to the capacity to make a will. In that context she expressed the view that whilst a treating doctor may be well suited to assess testamentary capacity, in her view, very few doctors actually have the skill set to satisfy themselves of the Banks v Goodfellow criteria. 671 Dr Innis said that testamentary capacity is best assessed contemporaneously. Her report continued: I suspect Mr Macdonald had been cognitively impaired for some time prior to his final hospital admission; as demonstrated by the squalor of his property, him assumedly not managing to pay his power bill and that he had been living with metastatic cancer since diagnosis in 2016 and had failed to execute a will in the subsequent five years. 672 In cross-examination, that reasoning was subject to challenge, both as to its premises and, even assuming the premise to be correct, as to its cogency. 673 In the balance of her report, Dr Innis: • expressed the view, largely by reference to a report that there was no power or electricity in his residence, that it was more likely than not that the deceased did not understand the extent of his estate; and -- 174 of 192 -- [2026] SASC 115 B Doyle J 173 • expressed the view, by reference to the fact that the deceased initially volunteered two beneficiaries before later including Maurice, that this was concerning in that he either did not appear to consider all potential beneficiaries, or he did and omitted one deliberately, before swiftly changing this view when asked. 674 Dr Innis referred to Dr Cursaro’s assessment that the deceased was competent to decide where he wished to receive end of life care. She said that from a medical perspective, the threshold for capacity to choose where you receive end of life care is a lot lower than the capacity required to execute a will. Dr Innis’ second report 675 In a supplementary report prepared shortly after the first report, Dr Innis responded to further materials that had been provided by the solicitors retaining her, Mr Solomon’s file note and Dr Hecker’s report. 676 In relation to Mr Solomon’s note, whilst it may be doubted whether it was an appropriate topic for expert opinion, Dr Innis observed that the opinion attributed by Mr Solomon to Dr Hecker in his file note was ‘perplexing’ because Dr Hecker’s report was ‘really quite similar to mine and I feel that the balance of probability based on the medical information provided leans quite clearly on the side that Mr Macdonald lacked testamentary capacity’. 677 In respect of the additional Adelta Legal instructions reviewed by Dr Innis, she observed as follows: I was surprised to read the Adelta Legal Instructions as part of the draft will completion. Mr Macdonald’s abilities to provide this level of information is quite discordant to the medical records of a man that was hallucinating, delusional and confused both before and after providing the will instructions. The only medical explanation for this ability, is of fluctuating cognition which can be seen in delirium. 678 Having reviewed Dr Hecker’s first report, Dr Innis disagreed with the view that vascular cognitive impairment was the most likely explanation for his ‘probable cognitive impairment’, observing that it ‘could equally have been related to [A]lzheimer’s pathology’. She went on to say: I believe Mr Macdonald’s cognitive presentation in hospital was most likely due to a delirium; of which cognitively impaired individuals are at higher risk. I agree with Dr Hecker’s view that his cognitive impairment in hospital was acute on chronic; a delirium on a background of an undiagnosed underlying brain disorder. I disagree with Dr Hecker’s suggestion that a lewy body dementia is a likely possibility. I agree that visual and auditory hallucinations are typical and prominent features of individuals with lewy body dementia; however I have not noted any evidence in the medical records of hallucinations outside the penultimate hospital admission. The other prominent features of lewy body dementia are parkinsonism and I see no note of a typical tremor; though accept this isn’t seen in all cases of lewy body dementia. On the basis of probability, I would think the hallucinations were most likely in the setting of delirium (critical illness, medications, end of life state) rather than a lewy body dementia. My opinion on this would -- 175 of 192 -- [2026] SASC 115 B Doyle J 174 differ however if there was report of delusions and hallucinations in the year preceding hospitalisation. 679 In respect of Dr Hecker’s reference to the absence of a will, Dr Innis observed that she often sees patients in practice that are at a high risk of mortality who have not arranged a will. However, in cross-examination, Dr Innis accepted the proposition that in terms of low level signs that might indicate a compromise of executive function, the failure previously to have made a will was ‘about as low as it gets’.566 Dr Innis’ oral evidence 680 After preparing her reports, and before giving oral evidence, Dr Innis had the opportunity to review the CT films. She said in her evidence that on looking at the axial images there appeared to be some atrophic change of the brain involving the parietal lobes, particularly at the vertex, and expressed the view that this can also be representative of underlying degenerative brain disease.567 She said that the radiologist’s observation of mild periventricular hypoattenuation can be a sign of small vessel disease which can be seen in cognitive impairment.568 681 With reference to evidence Dr Takhar had given, Dr Innis agreed with the proposition that the CT scan film was an insufficient basis to make a diagnosis of cognitive impairment. She said that cognitive impairment is not diagnosed based on imaging alone; it was part of the diagnosis.569 She considered, however, that the atrophic changes were not ‘age congruent’.570 682 In the course of cross-examination, Dr Innis confirmed that this meant she disagreed with the registrar who reviewed the films and the consultant who reviewed the CT report and approved it insofar as they commented ‘ventricular and sulcal calibre age appropriate’.571 It was put to her that radiologists were skilled in interpreting axial images in CT scans, but she said she often does not read the reports and looks at the pictures herself given her experience with brain images (‘I couldn’t tell you anything about bellies or feet or toes … but brain imaging, I’m very good at’).572 She was challenged on why, if she had reservations about the reliability of radiologists, she had been prepared to provide a report based on the report rather than insist on reviewing the films. She said that she had noted in her report that she had not reviewed the films, and considered this ‘raised’ the point.573 683 In cross-examination, Dr Innis agreed that a retrospective assessment of testamentary capacity suffered from the deficiency that the person has had no 566 Tr 745.25-30. 567 Tr 724.7-11. 568 Tr 724.12-18. 569 Tr 725.19-23. 570 Tr 726.29-31. 571 Tr 726.36-727.11. It was also put to her that his meant disagreeing with Dr Takhar, who she accepted was on the same page as the radiologists: Tr 728.35-729.4. 572 Tr 727.12-25. 573 Tr 727-728. -- 176 of 192 -- [2026] SASC 115 B Doyle J 175 opportunity to observe the testator firsthand at the relevant time and no opportunity to converse with them and form views about their cognitive ability. She accepted that the opportunity for contemporaneous interaction was valuable.574 However, she rejected the value (at least for her purposes) of the reports of interactions with friends and family and other associates, saying she deliberately does not involve them because often they have ‘alternative motives sadly and it’s one-on-one capacity assessments with me’.575 No doubt that is a sensible and cautious approach for a practitioner engaged to make a capacity assessment, but I must have regard to all the evidence, having made due allowance for conscious or subconscious bias of those reporting on their interactions with the deceased. 684 The questioning that followed tended to highlight Dr Innis’ very cautious approach to assessment of capacity. She disagreed that the nature of the assessment would be a function of their clinical and other presentation at the time, and when asked whether that means everybody who indicates in her presence that they want to make a will would be subject to a complete Banks v Goodfellow testamentary capacity, she responded ‘[e]very single time’.576 685 In relation to the reliance in her report upon the state of Paul’s premises, Dr Innis agreed that the state of his house might be a function of physical frailty or that the person was a hoarder or eccentric or weird or strange but still cognitively intact.577 686 She was then asked about her reliance upon the non-payment of bills. The cross-examination included this exchange:578 Q Now, if he was managing his finances all you’ve got left is the squalor, isn’t it, in relation to question 2. A No, because the ability to manage finances is a very low level reflection of financial capacity, the ability to pay a bill is very low level as opposed to the high level required in testamentary capacity. Q But you offer that up as the basis of why it was likely he did not understand or able to understand the extent of his estate, so you use it to bolster an assertion that you say it’s likely he didn’t know those things. Now, if it’s so low level, what’s it doing in your opinion here as the basis for a conclusion to question 2. A In the paucity of any really valuable evidence, that low level evidence is all I had to comment on. Q Well, what I’m asking you to agree to is this: if the evidence in the case, that is this case, as opposed to what you had when you gave your opinions, is that this man was paying his bills on time, he was paying his credit card off every month and the electricity hadn’t been disconnected, if they are the facts then I invite you to say that 574 Tr 729.14-31. 575 Tr 731.14-23. 576 Tr 731.24-38. See also Tr 733.1-6. 577 Tr 734.29-735.24. 578 Tr 738.5-34. -- 177 of 192 -- [2026] SASC 115 B Doyle J 176 that would be an indicator, an indicator, that he had cognitive ability sufficient to understand the extent of his estate because he could manage his finances. A I can’t agree to that, no. Q So you want it one way but you won’t concede the other, is that it. A In this case, yes. 687 However, as the cross-examination continued, Dr Innis appeared to moderate that view, as this exchange illustrates:579 Q You said about an ability to pay bills on time that that was a low level indicator of, in other words being able to manage your finances is a low level indicator for the question of whether or not you understand the breadth of your estate. In terms of executive function, that is an indicator of intact executive function, isn’t it, that you can meet deadlines, you recognise an obligation to meet liabilities and you carry into effect their payment. A Yes, agreed. Q If that’s what Mr Macdonald was doing in the lead-up to and including his hospitalisation in February 2021, that would be an indicator of intact executive function, wouldn’t it. A On its own, yes. Q Executive brain function, yes. Now, if it be the case that when Mr Macdonald was in hospital for this admission, he’d made requests that certain accounts that were due to be paid were paid on his behalf while he was in hospital, that would be an indication, I don’t suggest it’s an absolute indication, but it would be an indication that his executive brain function was intact while he was in hospital, wouldn’t it. A It’s a positive sign towards it, yes. Q Now, can I come back to this question of there would need to be more evidence about his knowledge of his estate beyond just his ability to manage his finances. I put to you the obverse of the proposition and I now want to come to other evidence, contemporaneous evidence of the knowledge of his estate. Would you agree with this proposition that what he told the solicitor, Ms Cortazzo when she attended at the hospital on the morning of 10 February, the day he made his temporary will and then later in the day signed his final will, what he told Ms Cortazzo about what comprised his estate, is important contemporaneous evidence of what his capacity was to know that, isn’t it. A I would agree, his knowledge of what his estate includes appears to be present on her evidence, yes. 688 In relation to Paul’s instructions as recorded in the Adelta Legal instructions, Dr Innis was asked whether this surprised her because she had not thought that the deceased had the cognitive ability or capacity to make a will and she answered that 579 Tr 739.23-740.24. -- 178 of 192 -- [2026] SASC 115 B Doyle J 177 ‘[i]t was like it was a different person’.580 Nevertheless, she pointed out that it still did not answer how he ‘forgot a beneficiary’ and then ‘quickly added it in when it was prompted’.581 689 Dr Innis was shown a number of communications between Paul and Cate during 2020 and invited to accept that the communications were an indication of someone who was not cognitively impaired. Whilst not accepting that they were conclusive, she agreed they were positive indications that the deceased was not cognitively impaired at the time of the communications.582 This culminated in the following passage in cross-examination:583 Q Yes. So armed up with that material, can I ask you to return to p.759, and where you say, in para.11.2, ‘I suspect Mr Macdonald had been cognitively impaired for some time prior to his final hospital admission’, I want to suggest to you that, in light of that material, that that suspicion - and no disrespect to you, what you had at the time, but that suspicion wasn’t well-founded. A I concur. 690 Dr Innis was then cross-examined in relation to the proposition in her report that the change in testamentary intention within the course of 10 February 2021 was concerning. She was asked whether a different interpretation of the change to the deceased’s instructions was open. The following exchange occurred:584 Q Omitted, but a testator is allowed to omit, if they want to, aren’t they. That’s not an indication of lack of capacity, if you decide to favour someone who might have a claim on your estate rather than someone else. A I would agree with that, yes. Q And what I want to suggest to you is that when the question was asked in a non- leading way, if he had any other family and he volunteered his cousin, Maurice, then the question was asked ‘Do you want to leave anything to him’. The answer ‘Maybe it would be best’, can I suggest, indicates an evaluative choice made by Mr Macdonald at that time. It’s just as consistent with him thinking ‘Well I don’t really want to leave it to Maurice’ earlier on and changing his mind that it maybe it’s to be best, in other words recognising that Maurice might have a moral claim on his estate. A Yeah, I wish he had have said that, though. That would have been helpful. If he said ‘Maybe it would be best because he could have a claim’. Q Yes, if he said that, we wouldn’t be here, Doctor. A No, I concur. ‘Maybe it would be best’, you could argue that it means he’s reevaluating his opinion. You could also read it as he is vulnerable and susceptible 580 Tr 742.9-15. 581 Tr 742.20-23. 582 Tr 746-751. 583 Tr 751.34-752.4. 584 Tr 757.1-27. -- 179 of 192 -- [2026] SASC 115 B Doyle J 178 to changing his opinion, particularly when it says that he had it within a few seconds, is my memory of what the document said. That he thought about it for a few seconds. 691 She was taken to the note of 6 February 2021 (which she had not previously seen) and asked whether, if there was evidence that between those two dates, Paul was actively considering how the estate might be allocated, and that there was a principled basis for reducing a ‘five way split’, this would be consistent with an affirmative answer to the third limb of Banks v Goodfellow. Dr Innis agreed, ‘particularly when the time period is more than a few seconds’.585 The questioning then continued:586 Q Now, the extent to which the significance of the omission of Maurice might be relevant, is also can I suggest, related to the extent of the closeness that these cousins might have had of a relationship, you would agree with that. A Yep, possibly. Q So you’d bring that into the mix when you were considering the significance of Maurice being out on the morning of the 10th but in shortly after, wouldn’t you. A Yes. Q And any earlier statements that Mr Macdonald might have made and the evidence is that in 2018 when his next-door neighbour Ms Ikon was herself redoing her will, she had a conversation with Mr Macdonald across the side fence and asked him whether he had a will and he said he didn’t and she recommended that he ought to get one, this is after he had his metastatic cancer diagnosis, and that he said words to the effect that he really only had his house as his principal asset and that’d probably go to his next of kin who was his cousin Lynn. So in 2018 Maurice didn’t get a mention either. That would be a - and I’m not suggesting this is an absolute answer - but that would be a relevant piece of information to bring into the mix of how much were ascribed as significant of Maurice being out on the morning of the 10th wouldn’t it. A I agree. Q Can I then come to question 4, now question 4 in the letter is whether in your medical opinion as to the morning of 10 February the deceased was suffering from any disorder of the mind that could influence his decision and who could benefit from his estate, now we’ve covered this in large measure already doctor and I’m not going to go over old ground, but I did want to come to one aspect and that is in the hospital notes at p.762 - no, no, sorry, I do apologise, 762 is your report and it’s an observation made in relation Dr Cursaro’s assessment as Mr Macdonald being competent to where he wished to receive his end of life care, and you say in your report, both the first and the second, that capacity is very much task dependent and because you might have the capacity to decide where you want to spend the last few days of your life, doesn’t necessarily mean you have the capacity to make a will, according to the Banks v Goodfellow criteria, that’s your evidence isn’t it. A Yes. 585 Tr 759.37-38. 586 Tr 760.1-761.18. -- 180 of 192 -- [2026] SASC 115 B Doyle J 179 Q But it’s also the case isn’t that if you are assessed as having the capacity to make decisions about, that is, be cognitively aware and intact to make reliable decisions for your future treatment and care, that’s at least an indicator of your level of cognitive functioning might not be task specific but it’s not a negative factor. A It’s not a negative factor. 692 Dr Innis was then asked questions about the potential significance of the decision Paul made about his end of life care arrangements.587 Q Right. So depending on what the interaction is might go to the calibre of the information that you elicit, would that be fair. A As long as he picked a reasonable option such as home with help or a nursing home or hospice, then yeah, they’re reasonable options. Q Indeed. But what I wanted to come to is this, Dr Cursaro’s evidence about the issues of resolving his hospice care was more complex than that and I want to put a couple of matters to you, ask you to assume that this is what happened and invite you to comment on it, all right. So, the position was this, that in relation to where he was going to go for hospice care, his cousin Lynn [whose] husband himself was in a nursing home in Fullarton, wanted him to go to Modbury because Modbury being on the eastern side of town was more convenient for her commitments to her husband as well as to Mr MacDonald, but Modbury didn’t have a private room and Mrs Rogers indicated to Dr Cursaro that she didn’t think that would be a problem for Mr Macdonald, so she was plugging for Modbury. Ms Rogers who’d come in from Queensland was staying with her sister down at Aldinga Beach and she was keen on Mr Macdonald going for his palliative care to Flinders, because that was going to be more convenient for her. Now, Mr Macdonald was the person who I ask you to assume, resolved that by determining he go to the QEH, which is not where either of his cousin or his long-term friend wanted him to go but it’s where he could get a private room. Now, what I want to suggest to you is that that is at a higher level of decision-making than simply ‘Where do you want to go to die? Well, you know, I'll go x’, would you agree with that. A I absolutely agree. Q And to the extent that in the course of resolving that issue which he did and conversed with Dr Cursaro to explain why it was that he wanted to make that choice, that sort of dialogue if there were cognitive impairments in him you would expect that they would have been observable wouldn’t they. A Mm, yes. 693 The cross-examination concluded with this exchange:588 Q And what we're talking about here, particularly when you're making a retrospective assessment, is trying to build up all of the contemporaneous inputs that you can find. A Yes. 587 Tr 762.9-763.11. 588 Tr 764.19-765.9. -- 181 of 192 -- [2026] SASC 115 B Doyle J 180 Q Would that be right. A Agree. Q Allowing for the fact that no one ever did a formal assessment of his testamentary capacity, there are, can I suggest, inputs which would indicate - that last one with Dr Cursaro being one of them - that whatever might have been his hallucinatory behaviour – I’ll come back to that just in one moment - or his delirium, whatever it is described, that the description of his engagement with those experienced clinicians is one which gave them no red flags at the time; and the positive description of what he did is consistent with him not being cognitively impaired. Would you agree with that. A Again I wouldn’t go quite as far, saying his not cognitively impaired, but I would go as far as to say that - what I said before, that it does show his ability to weigh up options, so that is some executive function. Q And so we might get to the point where he’s got some compromise, but not such a compromise as to answer question 4, that he had a condition of the mind to prevent him making a will. Do you agree with that. A Yeah, with this extra information, yes, that’s a reasonable assertion. Observations 694 The applicants did not ultimately rely on the opinion expressed in Dr Innis’ reports that the deceased likely did not understand the extent of his estate.589 In respect of the deceased’s capacity to evaluate the claims on his estate and make a deliberative choice about how to distribute it, Dr Innis acknowledged the importance of contemporaneous observations and accepted the limits of a retrospective assessment. 695 As the applicants’ closing submissions acknowledged, Dr Innis agreed that a diagnosis of cognitive impairment could not be made on the basis of the imaging alone, and as to the nature of any cognitive impairment that might be consistent with the CT scan films, she did not agree that it could be concluded that vascular factors were the most probable explanation. 696 Importantly, Dr Innis agreed with the proposition that the clinical observations that were made of him, which tended to show fluctuating cognition, could be explicable by reference to his underlying metastatic disease and hospitalisation (without there necessarily being the product of an underlying brain pathology).590 697 To my mind, this tended to highlight the need for a close consideration of the evidence about how the deceased interacted with others in the period before he became acutely physically unwell, the nature and extent of the contemporaneous assessments made by treating doctors and hospital staff and the evidence of lay 589 Applicants’ Written Closing Address (FDN 132) (‘AWS’) at [3]. 590 Tr 743.2-24. -- 182 of 192 -- [2026] SASC 115 B Doyle J 181 witnesses and Ms Cortazzo. In doing so, I bear in mind, consistently with Dr Innis’ evidence, that a person may be able to engage in a superficially acceptable way notwithstanding a significant deficit in their executive function (particularly where observations are only made over a short period). I must also consider these matters with an appreciation of the deceased’s relationships and personality and the relative simplicity or complexity (as the case may be) of the claims upon his estate. 698 As indicated earlier, I have decided that I should not give independent weight to the opinions ultimately expressed by the experts, and should focus on the cogency of the reasoning upon which they identified as contraindicative or supportive of testamentary capacity. In forming my conclusions as to the ultimate issue, I have born in mind the reasoning of Dr Hecker and Dr Innis, but given little or no weight to those lines of reasoning that I have not found to be persuasive. 699 To the extent that Dr Innis placed reliance on the state of the deceased’s home and his failure to attend to financial obligations, I did not find that reasoning persuasive. To the extent that in her first report, she emphasised the deceased’s failure to make a will earlier in his illness, I also found that reasoning unpersuasive.591 Criticisms of Ms Cortazzo’s approach 700 In Ryan v Dalton; Estate of Ryan,592 Kunc J summarised the matters a solicitor should consider when retained to prepare a will, particularly for an elderly client. He said:593 (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; (c) who resides in a nursing home or similar facility; or 591 When cross-examined, Dr Innis did not place great emphasis on this matter. Nor, in closing submissions, did the applicants: Tr 1020.16-37. 592 [2017] NSWSC 1007. 593 [2017] NSWSC 1007 at [107]. -- 183 of 192 -- [2026] SASC 115 B Doyle J 182 (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. 701 This approach has been referred to with apparent approval in decisions of this Court.594 It does not follow, of course, that any departure from this approach dictates that the evidence of the solicitor may not provide some support for a conclusion of testamentary capacity, and the applicants accepted as much.595 702 In the present case, the applicants submitted that Ms Cortazzo:596 • made no immediate inquiry of a medical practitioner as to the deceased’s condition at the time she took instruction; • did not interview the deceased in private or in a manner conducive to candid disclosure; • did not maintain a consistent, recorded line of questioning; and • did not make a file note contemporaneously following her attendance(s). 703 As to the first of those criticisms, I do not consider that, if there was a shortcoming, it has significance in the disposition of this case. Ms Cortazzo had been informed by Ms Khambatta on 9 February 2021 that Paul had the capacity to make a will. Ms Khambatta said the same thing the following morning before Ms Cortazzo entered the room to meet with Paul. Ms Cortazzo felt, based on her interactions with Paul, that he was clear and decisive. Nevertheless, she did request the provision of a letter concerning the deceased’s testamentary capacity, albeit she viewed this as being out of an abundance of caution. A medical opinion was expressed by Dr Sansome, reflecting the view that he and Dr Takhar had formed. Dr Cursaro had the same view. Had Ms Cortazzo made an inquiry at an earlier stage in the process, it is unlikely that anything would have been different. 704 In respect of the second and third criticisms, whilst ideally the instructions would have been taken without any beneficiary in proximity, and without any 594 Moloney v Hayward [2022] SASC 79 at [281]-[282] (McMillan AJ), O’Dea v McInerney [2024] SASC 110 at [30] (McIntyre J), McInerney v D’Ortenzio (formerly O’Dea) [2026] SASCA 7 at [169] (Livesey P and David JA). 595 Tr 1015.29-35. 596 AWS [173]-[201]. -- 184 of 192 -- [2026] SASC 115 B Doyle J 183 discussion with a beneficiary before finalisation of those instructions, there were practical reasons to consult with Cate concerning her preparedness to share the executor duties with Lynn and, so far as an implied risk of influence is concerned, the conferral with Cate could not be said to have prompted any change to the deceased’s instruction that was to her advantage. Further, it is apparent that even before Cate’s arrival in Adelaide (and any discussion with her about the management of his affairs), Paul had contemplated involving Cate and Lynn as possible decision-makers for him.597 705 In respect of the fourth criticism, I have found both that Ms Johns’ note of the second attendance was reasonably contemporaneous and accurate,598 and I have accepted that Ms Cortazzo’s evidence concerning the first attendance substantially drew upon a genuine retained memory, albeit aided as to aspects of the detail by the notes she took of her instructions and her general practice.599 706 The more important criticism ultimately advanced by the applicants involved the proposition that the deceased’s reasons for his disposition were not probed.600 That criticism must be considered in light of the fact that in the initial phase of taking instructions, the deceased did not include Maurice as a beneficiary and did so after Maurice was mentioned by Ms Cortazzo. It is also necessary to bear in mind that Nicole and Natasha were not provided for in the same way that was contemplated by the note prepared four days earlier. 707 In closing submissions, the applicants argued that ‘[i]n this case, given where the rest of the evidence lands, giving rise to the findings of what can be characterised as doubt, it’s just not sufficient. There needs to be, if only, a line, ‘I’m leaving this to Cate and Lynn because Lynn is my closest cousin and I’ve always loved Cate’.601 In a similar vein, later, they submitted that ‘if he had said to Ms Cortazzo ‘Look I’ve helped out Cate over the years, she’s done it tough, she’s got her son Raj, I want to leave her a third of the estate; that would probably be conclusive’.602 The applicants accepted, in closing submissions, that if there was an obvious explanation beyond argument for the testamentary dispositions, then a failure to probe the reasons may not matter. That was not this case, however, both because Cate was not a de facto partner and because there was a difference between the will and the note.603 708 In considering the significance of this issue, I bear in mind the following matters: • in the discussion on 6 February 2021 in the context of the inclusion of Cate as a beneficiary, Paul referred to their having had a close relationship for 597 See [341] above. 598 See [568], [572] above. 599 See [108] above. 600 Tr 1015.36-38. 601 Tr 1016.1-6. 602 Tr 1026.9-13. 603 Tr 1016.16-1017.19. -- 185 of 192 -- [2026] SASC 115 B Doyle J 184 around 30 years. Cate recalled the word ‘love’ in this context and Lynn did not, but on either view a rational basis for Cate’s inclusion was identified;604 • Ms Ikon’s email to Ms Benge on 9 February 2021 records a rational for the disposition Paul ultimately settled on; • in the course of Ms Cortazzo’s initial interaction with Paul on 10 February 2021, she asked Paul how he had come to know Cate, which was an indirect way of identifying whether there was a rational reason for her inclusion. He spoke about their longstanding friendship and close and frequent communication;605 • I have found that Paul was in closer contact with Lynn than with Maurice, and his selection of Lynn but not Maurice as an executor is consistent with that; and • as for the change in the way Nicole and Natasha were provided for, I have accepted that Cate had a discussion with Paul capable of informing the decision he made about that,606 and the fact that there was a discussion of how the ‘gift over’ provisions would work gives me confidence that Paul’s different treatment of them was not a function of having entirely overlooked their claims.607 709 I bear in mind that the issue is not so much whether Paul did exercise a sensible deliberative choice in relation to the distribution of his estate, but rather whether he had the capacity to do so, and I bear in mind that the Court should not infer the existence of capacity from the mere reasonable likelihood that the exercise of capacity would have resulted in a similar or the same disposition. That said, I consider that all the circumstances are capable of informing my assessment of the ultimate issue. I do not accept that if Cate had been a de facto partner, her inclusion would support a finding of capacity, but that because no one suggested the relationship was that close, the closeness of the relationship is no evidence at all. The closeness of the relationship with Cate also needs to be understood relatively to the other claims on his estate. Paul’s cousins were his closest living relatives but their relationship cannot be assimilated with that between siblings or parent and child. There is no reason to think that his cousins, or Lynn’s daughters, were in circumstances of financial hardship. Against this, Paul had a track record of helping Cate financially. This is reasonably powerful evidence supporting the existence in fact of a rational basis for her inclusion. 710 The upshot is that whilst I accept there were some shortcomings in the approach adopted by Ms Cortazzo, her evidence remains important and valuable in my assessment of testamentary capacity, and whilst far from definitive, it (a) 604 See [366], [374] above. 605 See [542] above. 606 See [473] above. 607 See [552] above. -- 186 of 192 -- [2026] SASC 115 B Doyle J 185 removes any suggestion that at the time Paul was providing instructions, he was affected by hallucinations or significantly impaired attention in the way that at other times he was reported to be, and (b) is ostensibly demonstrative of a capacity to recall and convey relevant information and to engage with and reflect upon information presented to him. Conclusions 711 In closing submissions, the applicants accepted that the Court was probably not in a position to make a categorical finding as to an underlying pathology.608 In my respectful view that was an appropriate concession. 712 As for small vessel disease or small vessel ischaemia on the basis of periventricular hypoattenuation in the CT scan of the deceased’s brain: • the radiologist’s report (prepared by one radiologist and reviewed by another) describes ‘mild’ periventricular hypoattenuation and indicates only that this is commonly encountered in the context of small vessel ischaemia; • on her review of the films, Dr Hecker observed some periventricular hypoattenuation around the frontal lobes, but not as severe as she would have imagined;609 • Dr Takhar said periventricular hypoattenation suggests but does not require the conclusion of small vessel ischaemia;610 • Dr Cursaro said that whilst mild hypoattenuation is seen in those with small vessel disease it is also commonly seen in older individuals;611 • I accept that a history of hypertension, diabetes and hypercholesterolaemia makes more likely the development of small vessel disease; but • ultimately, Dr Hecker spoke in terms of a ‘potential’ diagnosis of small vascular disease. 713 Further, and in any event, it was common ground among the experts that the presence of small vessel disease was not determinative of whether the person is in fact suffering from a cognitive impairment. Indeed it was put to Dr Cursaro, and she accepted, that the mild periventricular hypoattenuation could be an ‘early sign’ of chronic small vessel disease and that such a finding alone does not indicate cognitive decline.612 It was further put to her, and she accepted, that in its early 608 Tr 1005.18-22. 609 Tr 773.25-33. 610 Tr 693.18. Dr Innis agreed with that proposition: Tr 725.26-29. 611 Tr 679.6-10. 612 Tr 679.11-27. -- 187 of 192 -- [2026] SASC 115 B Doyle J 186 stages, small vessel ischaemia is unlikely to cause significant cognitive impairment.613 714 As for the potential that the deceased was otherwise or additionally cognitively impaired by reason of atrophy in the front regions of the cortex: • Dr Hecker felt there was some atrophy visible in the CT scan films614 and Dr Innis expressed a similar opinion;615 • these observations were at odds with the assessment in the radiologist’s report616 and do not appear to have been made by Dr Takhar or Dr Cursaro; and • whilst alcohol use is one of several factors that could lead to atrophic changes of the kind under discussion, I am not satisfied that the deceased had a longstanding pattern of alcohol misuse.617 715 Whilst their specialties likely afforded them more experience with respect to the interpretation of a CT scan of a brain than had Dr Takhar, the geriatricians all accepted that a diagnosis of cognitive impairment could not be made on the basis of the films alone. 716 Having regard to all the evidence, I do not consider that prior to the period of his acute sickness in late January and early February 2021, the deceased was suffering from cognitive impairment that significantly impaired his executive function either as a result of vascular pathology, or by reason of any other underlying brain pathology. 717 I have not overlooked that Lynn thought Paul was not as ‘sharp’ when she saw him on Christmas day in 2020. However, I consider that if the deceased had been suffering cognitive impairment which was in fact significantly impairing the executive domain of his cognitive function for some little while, it is likely more obviously to have manifested itself in the interactions Paul had with others in the months preceding his admission. Based on my review of his interactions with others including by email and text message, I find that the deceased was interacting in a relatively sophisticated, even if idiosyncratic way.618 718 I do not consider the state of his house to support a finding that underlying chronic brain pathology was significantly impairing his executive function. Whilst he had been a hoarder for a long time, and was no doubt embarrassed about that, this was not, in my view, a manifestation of a significant impairment to his 613 Tr 680.26-29. 614 Tr 773.33-34. 615 Tr 726.17-21. 616 Exhibit R22, p 1084. 617 See [285] above. 618 See [316]-[320] above. Whilst standing alone it may not carry much weight, as mentioned earlier (at [234]) a September 2020 assessment suggested severe cognitive impairment was unlikely. -- 188 of 192 -- [2026] SASC 115 B Doyle J 187 executive function. His physical frailty over the days prior to his admission is likely to have exacerbated the untidy and unclear conditions within his home. He was managing his affairs satisfactorily. 719 I accept that, whether or not the deceased had any significant impairment of his executive function before he was acutely physically ill does not address the possibility on the evidence that if he did have underlying brain pathology, this may have made him more likely to suffer from hallucinations, impaired attention and confusion whilst critically unwell at the RAH. 720 However, such a possibility does not particularly assist in resolving whether, when not affected by hallucination and when not ostensibly confused or drowsy, the deceased had a reasonably intact cognitive function, including with reference to the executive domain. In respect of those periods of apparent lucidity, the observations of the treating doctors who gave evidence, those of Ms Cortazzo, as well as those of the lay witnesses (most relevantly, but not only, Ms Ikon) are important. 721 The interactions are relevant in two ways. First, having regard to the nature, quality and duration of the interactions, the fact that medical practitioners with relevant experience and training, and who were aware that the preparation of a will was in contemplation, did not observe any ‘red flags’, is of significance. 722 Secondly, in my view, some of the interactions are (at least in combination) positively indicative of the deceased retaining more than merely basal or superficial cognitive function, and suggest a capacity for abstract thinking, a capacity to hold information, a preparedness to absorb new information and a capacity to make a decision about the best course of action. These are supportive of the deceased having substantially retained his executive function and testamentary capacity. Without being exhaustive, I refer to my findings that: • Paul was able to recall and relay relevant information to Dr Brook on 5 February 2021 in a way which evidently did not cause her to initiate investigations about his cognitive state;619 • Dr Takhar considered that Paul engaged with him on 6 February 2021 in a way that demonstrated an ability to reason logically and coherently as related to his end of life planning;620 • Paul was able sensibly to participate in the discussion that resulted in the preparation of the note on 6 February 2021;621 619 See [341] above. 620 See [129] above. 621 See [381] above. -- 189 of 192 -- [2026] SASC 115 B Doyle J 188 • Dr Takhar considered that Paul engaged with him on 7 February 2021 in a way that demonstrated insight into the fact he had suffered hallucinations and that he was coherent and logical;622 • Paul discussed the payment of three bills with Cate on 7 February 2021 and requested that she attend to them in the manner she described;623 • on 8 February 2021, Paul was told by Dr Lim that transfusions were not a long term solution but said he would like to continue them to have enough time to arrange his affairs;624 • later that day, Paul was able to engage in an appropriate conversation with Dr Cursaro about palliative care options;625 • in the course of discussions with Cate on 8 February 2021, whilst on some occasions confused, on other occasions Paul was able to engage in reflective discussion about his beliefs, his treatment and the wellbeing of others (Cate’s mother). Paul also turned his mind to the question of his mother’s jewellery and articulated that he was not proposing to provide separately for Raj;626 • on 9 February 2021, Paul was informed that antibiotics and blood transfusions were only a temporary solution and, absorbing that information, he agreed to cease them;627 • also on that day, Paul engaged in a further discussion with Dr Cursaro about end of life care options in which it is apparent that a number of different considerations were in play;628 • on 9 February 2021, Paul articulated what he was thinking about his will to Ms Ikon in a manner that prompted her to make the contemporaneous observation that he was ‘still of sound mind’;629 • at or around this time, the deceased articulated a possible concern about leaving his estate to Lynn’s daughters;630 • on 10 February 2021, Paul discussed end of life options with Dr Cursaro and made a decision for himself that appeared to involve synthesising a number of relevant considerations;631 622 See [130] above. 623 See [414], [419] above. 624 See [425] above. 625 See [459] above. 626 See [443]-[444] above. 627 See [451] above. 628 See [456] above. 629 See [157], [470] above. 630 See [473] above. 631 See [514] above. -- 190 of 192 -- [2026] SASC 115 B Doyle J 189 • Paul engaged with Ms Cortazzo on the morning of 10 February 2021 in the way she described in her evidence and, later in the day, recalled what he had discussed and agreed with her;632 and • on 11 February 2021, the deceased relayed to Dr Takhar that he had completed a will the previous day.633 723 I accept that, generally speaking, the preparation of a will is likely to involve a higher level of executive capacity than does the expression of a preference for where to be cared for. In the circumstances of this case, any gulf between those tasks is less pronounced than it might otherwise be. So far as his estate and claims upon it go, Paul’s situation was not complex, and he had occasion to reflect on how he might proceed between 6 and 10 February 2021. So far as end of life decisions go, Paul was called upon to balance his own preference with the convenience of others who, he came to appreciate, had different ideas. 724 In view of my findings about Paul’s circumstances and relationships, the testamentary dispositions upon which the deceased settled are not at all surprising. Whilst Paul suffered hallucinations and at times, was patently confused or drowsy, this was a fluctuating state. I am comfortably satisfied that for significant intervals when he was not so affected, he maintained the executive function necessary to make a deliberative evaluation as to the distribution of his estate. 725 I have considered the matters that might point against that conclusion, including but not limited to the initial omission of Maurice, and the possible effect of medications, but I am satisfied by reference to the evidence as a whole that the respondent has discharged her onus. I do not consider that when he first met Ms Cortazzo on 10 February 2021 the deceased’s medications impaired his cognition. He had been receiving pregabalin for some time and it did not appear to have been producing a variable effect on his cognition in periods where he was alert and responsive and not drowsy. When Ms Cortazzo returned later in the day any continuing effects of hydromorphone doses administered at 11.00 am and 1.29 pm are not likely to have been material. Paul’s retention of the detail of what he had discussed earlier that day points against such a possibility, as does the evidence of Dr Cursaro regarding her interactions with the deceased during the afternoon. 726 With respect to Maurice, the more likely explanation (given my findings about the relationships involved) is that Paul entertained preferring a more substantial distribution to Cate and Lynn before reverting to the approach of including him (as he had, albeit in a different share) on 6 February 2021. But even allowing for the less likely possibility that in the first part of the discussion on 10 February 2021 he failed to consider Maurice, I would find that with Maurice’s possible claim drawn to his attention Paul had the capacity to evaluate and make a deliberative choice. I am also satisfied, particularly given there was a clear 632 See [534]-[564] above. 633 See [577] above. -- 191 of 192 -- [2026] SASC 115 B Doyle J 190 discussion about gift over, that Paul’s failure to provide directly for Lynn’s daughters was not inadvertent nor unthinking. G DISPOSITION 727 I find that Paul had testamentary capacity when he gave instructions for and executed the will. There is no dispute as to the other matters relevant to the validity of the will, and I find that the deceased knew and approved the contents of the will. I will make an order pronouncing for the force and validity of the will. I will hear the parties as to costs. -- 192 of 192 --