Church v Mason [2013] NSWCA 481 (24 December 2013)

Church v Mason [2013] NSWCA 481 (24 December 2013)

Last Updated: 3 January 2014

JUDGMENT

1. MEAGHER JA: This is an appeal from a judgment and orders of the primary judge (White J) granting to Marjorie Mason probate in solemn form of the will of Stanley Church: Estate of Stanley William Church [2012] NSWSC 1489. That will was made on 14 August 2009. Since that order was made Marjorie Mason has died and the respondent is the executor of her estate. In the proceedings before the primary judge the appellant (Robert Church) contested that grant of probate on the grounds that the testator lacked testamentary capacity and that there were suspicious circumstances as to his knowledge and approval of the will which required that it be affirmatively established that he knew the contents of the will and appreciated the effect of what he was doing when he signed it.

The issue in the appeal

2. On appeal Robert Church does not contest the primary judge's finding that the testator had testamentary capacity. He challenges the primary judge's conclusion that the testator knew and approved the contents of his will. Specifically, it is argued on his behalf that the primary judge erred in being satisfied that the testator approved of the contents of his will so that it could be said to express "the true will of the deceased": per Baron Parke in Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 at 484-485; [1838] EngR 1056; 12 ER 1089 at 1091.

3. Before considering this argument it is necessary to introduce the parties and the circumstances in which the will was executed. The findings made by the primary judge in relation to those matters are not the subject of challenge on appeal. The amended notice of appeal does, however, contend that the primary judge erred in his evaluation of those findings - by failing to give sufficient weight to some matters and giving undue weight to others - in respects to which reference will need to be made in more detail.

The parties

4. It is convenient to refer to the relevant parties by their given names. The testator, Stanley, had a half-brother Robert (the appellant) and a half-sister Marjorie (of whose estate the respondent is executor). At the time of his death on 18 October 2009 Stanley was aged 88. He left an estate valued for probate purposes at a little under $6,000,000. He was unmarried and had no children. His closest relatives were Robert and Marjorie. His one and only will was executed on 14 August 2009. By that will he appointed Marjorie as executrix and left the whole of his estate to her.

5. In 2003 Stanley was diagnosed with early Parkinson's disease. In 2006 he was diagnosed with a carcinoma of the prostate. By 2009, he was partially deaf and suffered from chronic lymphocytic leukaemia, dysphagia, gastric ulcers and chronic gastritis. He was admitted to Mona Vale Hospital in January 2009 and remained there until 24 February 2009 when he was discharged to Peter Cosgrove Nursing Home at Narrabeen. He lived there until he was readmitted to Mona Vale Hospital on 18 September 2009. The will was made whilst he was in that nursing home. In the period after February 2009 Stanley had periods of confusion which were episodic and consistent with his suffering from short term physical illnesses.

6. The primary judge found that at the time of his death Stanley was on good terms with both Marjorie and Robert but was closer to Marjorie, and that this provided a rational reason for him to leave everything to her: [12], [19], [57]. There was some evidence of a dispute between Robert and Stanley and their mother which concerned land in Dee Why owned by Stanley and his mother. The relevant events occurred before 1954, were the subject of proceedings between Robert on the one hand and Stanley and his mother on the other and included an allegation that Robert had not honoured an agreement he had made with Stanley about each helping the other to build a home: [16]. Those proceedings were settled. The primary judge did not accept Marjorie's submission that Stanley considered these to be reasons for excluding Robert from his will; principally because Marjorie's husband gave evidence that over the 60 years or so that he had known him, Stanley had only complained on two or three occasions, once in about 2006 and at other times in the mid to late 1960s, that Robert had not honoured their agreement: [17].

7. Marjorie and her husband also gave evidence that in June 2009 Stanley told them that Robert said he had just made a new will and left everything to his daughter, Beverley, to distribute as she thought fit. Their evidence was that Stanley said he was upset when told this. The primary judge did not accept their evidence because it was contrary to the terms of Robert's will, which provided that if Robert's wife did not survive him, his estate would be divided equally between his children, including Beverley, who was to be his executor: [18].

The circumstances in which the will was executed

8. Bruno Gelonesi was admitted to practice as a solicitor in 2006 and first acted for Marjorie in July 2009 in circumstances shortly to be referred to. Prior to that a principal of the firm which Mr Gelonesi and his partner had purchased acted for Marjorie and her husband for many years: [33]. On 7 August 2009 Mr Gelonesi attended on Stanley at the nursing home with Marjorie, who visited him on an almost daily basis. The purpose of that visit was to have Stanley sign documents appointing Marjorie as his attorney and enduring guardian. Mr Gelonesi had spoken earlier to Stanley by telephone to obtain instructions from him for the preparation and execution of those documents: [33]. During the visit Stanley told Mr Gelonesi in answer to a question that he, Stanley, did not have a will and did not need one. After the documents were signed Mr Gelonesi asked Stanley if he wished to make a will. Stanley said that was not really necessary. It is likely that this matter was taken a little further than this because a file note of Mr Gelonesi's personal assistant, also dated 7 August 2009, records an instruction "Marjorie to advise re will": [35]. The primary judge inferred from the existence of this note that Marjorie had told Mr Gelonesi at some stage on 7 August that Stanley "would be making a will": [37].

9. On 11 August 2009 Marjorie telephoned Mr Gelonesi and put Stanley on the telephone to speak to him. Stanley told Mr Gelonesi that he had changed his mind and that he now wished to make a will. Mr Gelonesi explained what an executor did and what happened when a will was made and asked Stanley who he wanted as his executor and who he wanted to leave his property to. Stanley nominated Marjorie both as his executrix and beneficiary. At the time those instructions were given Marjorie was with Stanley in his room at the nursing home. Mr Gelonesi said that he made a file note recording these instructions. He was not, however, able to locate that note: [38].

10. Mr Gelonesi then prepared Stanley's will and attended the nursing home on 14 August 2009 with his wife to have the will executed. The will was in its terms a simple one. It appointed Marjorie as executrix and trustee and gave the whole of his estate to Marjorie. Before describing what happened during that meeting it is necessary to record what happened in the days prior to it.

11. On 12 or 13 August 2009, Marjorie discussed with Stanley a letter from the owners of the property adjoining a property he owned in Dee Why which contained a proposal for the construction of a dividing fence. Stanley's reply, which was typed by Marjorie but on her evidence recorded his instructions to her, indicated a preference for a particular type of three-rail fence, his agreement to where that dividing fence was to be erected and his insistence that the cost of a retaining wall be met by the neighbours. The primary judge concluded that Stanley's instructions showed a rational approach to the issues raised about the adjoining fence "that would indicate a quite acute intelligence concerning financial matters": [45]. That observation is not challenged on appeal.

12. On 13 August 2009 Marjorie produced a typewritten document which she showed to Stanley. The document is set out by the primary judge at [48]. It commenced in the form of a draft will and contained four alternative suggestions as to how Stanley might divide his estate between Marjorie and Robert. Those four suggestions were that the whole estate be divided 50/50 between Marjorie and Robert, that the whole estate go to Marjorie, that the whole estate be divided two-thirds to Marjorie and one-third to Robert or that the real estate be divided equally between them and Marjorie have the balance described as "all Cash, Trust, Bonds and Shares". Marjorie's evidence was that she read each of these suggested dispositions to Stanley and asked him for a response to each. He did so by indicating "no" or "ok". Marjorie noted his response in the margin next to the relevant paragraph. Stanley only responded "ok" to the second suggestion. After she had noted his responses, Marjorie gave the document to Stanley and he signed it.

13. The circumstances in which this evidence emerged required that it be treated with caution. It was not mentioned in Marjorie's first affidavit, sworn on 21 June 2011, which described a discussion with Stanley in which he indicated clearly that he wanted her to have the whole of his estate and did not wish to leave any of it to Robert: [46]. The document was first referred to in Marjorie's affidavit sworn on 10 April 2012, a month before the hearing. Her evidence was that she gave the document to her solicitors shortly after 13 August 2009. That was not Mr Gelonesi's recollection. He could not recall when he first saw the document and said that he found it on one of his files. Prior to the hearing a subpoena to produce documents was served on Mr Gelonesi requiring the production of the file maintained in relation to the preparation and execution of the will, including any record of a statement made by the testator. The document prepared by Marjorie was not produced in answer to that subpoena. The explanation for non-production was that the document, when found, had been in a different file: [58].

14. Whilst, as the primary judge observed, these circumstances raised a suspicion about the authenticity of the document, it contained what appeared to be Stanley's signature and no evidence was led casting doubt on the genuineness of that signature. Nor was any challenge made to Marjorie's evidence that Stanley had signed the document after it had been read to him and his responses noted. Notwithstanding the doubts arising from its late production, the primary judge found that the document was authentic and that it had been prepared in the circumstances described by Marjorie: [59], [67]. Those findings are not challenged on appeal, although it is submitted that the primary judge gave undue weight to them.

15. When Mr Gelonesi and his wife visited Stanley on 14 August 2009, Marjorie was initially present but then left his room: [39]. Mr Gelonesi swore two affidavits describing what happened. In each he said that after asking Stanley questions (in a leading form) as to his assets and as to whether he was married and had children, he inquired whether Stanley had any sisters or brothers. Mr Gelonesi said that in response Stanley referred to Robert, that he then asked whether Stanley wished to leave anything to his brother, and that Stanley responded "no". Mr Gelonesi said that he then read through the will one paragraph at a time, confirming with Stanley as he went that it was satisfactory. The will was then signed and witnessed.

16. All of this occurred in the presence of Mr Gelonesi's wife who, in her affidavit, also said that she recalled her husband saying something to Stanley about his brother and asking whether he wanted to leave anything to him, to which Stanley answered "no". In cross-examination Mrs Gelonesi said she recalled her husband reading through the will line by line and asking Stanley questions. Although she had very little recollection of the events of the day, because she understood she was only there to witness a signature, she did recall a question to the effect "you left this to your sister", to which Stanley responded "yes".

17. The primary judge rejected Mr Gelonesi's evidence (and must also be taken to have rejected his wife's evidence) that there had been any reference during the meeting on 14 August to the fact that Stanley had a brother. He did so because he found that in November 2009 Robert had a telephone conversation with Mr Gelonesi in which Mr Gelonesi said that he did not know that Stanley had a brother. The primary judge concluded that if Mr Gelonesi had spoken to Stanley about Robert on 14 August he would not have responded to Robert's inquiry three months later as he did: [41]. It is not contended on behalf of the respondent that this finding involved error.

The reasoning of the primary judge

18. The primary judge accepted that the circumstance that Marjorie was instrumental in causing the will to be made in her favour raised a suspicion concerning Stanley's knowledge and approval and displaced the presumption to that effect otherwise arising from proof of testamentary capacity and due execution: [62]. Accordingly, it was necessary for Marjorie to prove affirmatively that Stanley knew and approved of the contents of the will. What was required was "that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he ... was doing so that it can be said that the will contains the real intention and reflects the true will of the testator": Tobin v Ezekiel [2012] NSWCA 285 at [47].

19. As Peter Gibson LJ said in Fuller v Strum [2001] EWCA Civ 1879; [2002] 2 All ER 87 at [33], suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. That proposition informs the following observation of Chadwick LJ in Hoff v Atherton [2004] EWCA Civ 1554; [2004] All ER (D) 314 at [64] to which the primary judge referred.

"... If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."

20. Accepting that this was a correct statement of the relevant principles, the primary judge addressed the three matters which he considered showed Stanley to have known and approved the contents of his will. He identified those matters at [63]:

"The first is the instructions which he gave to Mr Gelonesi on 11 August 2009. Whilst I have not accepted all of Mr Gelonesi's evidence, there is not sufficient reason to doubt his evidence of those instructions. The second is the intention expressed in the document signed by the deceased on 13 August 2009. The third is the fact that the will was read over to the deceased on 14 August 2009. The reading over of the will is attested to not only by Mr Gelonesi, but also by the other attesting witness, Mrs Gelonesi."

21. The primary judge considered that the first and third of these matters demonstrated that Stanley knew and understood the contents of the will and that the second matter "shows that he also weighed Robert's claims on his testamentary bounty": [64].

22. He concluded at [67]:

"In this case Marjorie's evidence, supported by the document Stanley signed, dated 13 August 2009, that he considered and rejected options for leaving Robert a share of his estate, establishes that Stanley knew and approved the contents of the will in the wider sense to which Chadwick LJ referred in Hoff v Atherton at [64].

The argument on appeal

23. On behalf of Robert it is submitted that, in being satisfied that Marjorie had established knowledge and approval, the primary judge erred in the following respects. First, he did not take into account as a circumstance which excited suspicion the fact that Stanley was 88 years old, suffering from memory loss, dementia, Parkinson's Disease, disorientation, confusion, fatigue and an inability to speak (ground of appeal 2). Secondly, he did not adequately review and weigh the evidence directed to Stanley's knowledge and approval of the contents of the will (ground of appeal 3).

24. Specifically, it is said that the primary judge failed to give sufficient weight to the following matters: that the services of Mr Gelonesi were procured by Marjorie; that there was no satisfactory explanation for Stanley's change of mind between 7 and 11 August 2009 as to the need to make a will; that Stanley's instructions given on 11 August 2009 were given over the telephone and in the presence of Marjorie; that on the day the will was executed Marjorie had been with Stanley until Mr Gelonesi arrived and thereafter remained in the vicinity; that Marjorie stood to receive a substantial benefit under the will (in the order of $3m on the assumption that had Stanley died intestate she would only have received half of the value of the estate); and that there was no rational reason why Robert should have been excluded from Stanley's testamentary disposition (ground of appeal 4).

25. Finally, it is submitted on behalf of Robert that his Honour gave undue weight to the three matters that he identified at [63] namely, the fact of the instructions given on 11 August 2009 to Mr Gelonesi, the document signed by Stanley on 13 August 2009 and the circumstances in which the will was executed on 14 August 2009 (ground of appeal 5).

26. Ultimately, as is submitted on behalf of the respondent, the question for this Court is whether, in weighing the evidence and findings of primary fact, the primary judge erred in concluding that Stanley did in fact know and approve the contents of his will.

Disposition of the appeal

27. In Tobin v Ezekiel at [43]-[54] this Court addressed the doctrine of suspicious circumstances as it applies to the presumption of knowledge and approval of the contents of a will. Particularly relevant in the present context is the following observation at [47]:

"What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it."

28. It is worthwhile also recalling what Viscount Simons said in Wintle v Nye (at 291) in relation to the same subject:

"It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined. Here was an elderly lady who might be called old, unversed in business, having no one on whom to rely except the solicitor who had acted for her and her family; a will made by him under which he takes the bulk of her large estate; a will made, it is true, after a number of interviews extending over a considerable time, during which details of her property and of her proposed legacies and annuities were said to have been put before her, but in the end of a complexity which demanded for its comprehension no common understanding; on her part a wish disclosed in January, 1937, to leave her residuary estate to charity which was, by April, superseded by a devise of it to him, and on his part an explanation of the change which was calculated as much to aggravate as to allay suspicion; the will retained by him and no copy of it given to her; no independent advice received by her and, even according to his own account, little pressure exercised by him to persuade her to get it; a codicil cutting out reversionary legacies to charities allegedly for the benefit of annuitants but, in fact, as was reasonably foreseeable, for the benefit of the residuary beneficiary."

29. The task which the primary judge was required to undertake, adopting the language of Isaacs J in Nock v Austin [1912] HCA 73; 25 CLR 519 at 528, called for a "vigilant and anxious examination ... of the evidence as to the testator's appreciation and approval of the contents of the will".

30. The primary judge's finding that Stanley had testamentary capacity is not challenged. In making that finding his Honour took account of Stanley's age, enfeebled condition and occasional periods of confusion. He found that there was nothing that indicated Stanley was suffering from such an episode at the time he made his will: [60]. That finding is not challenged. The evidence of Mr Gelonesi did not suggest that there was any confusion or lack of understanding evident in his communications with Stanley on 11 or 14 August. Nor did Marjorie's evidence of the events of 12 and 13 August refer to any confusion.

31. The primary judge also found that Stanley understood the nature of a will and that it was likely he understood in general terms what his real property and other assets were: [20]. Neither of those findings is challenged. The primary judge made findings as to Stanley's conversations with Mr Gelonesi concerning the making of a will on 7 and 11 August 2009. In the first conversation the question whether Stanley had a will was raised, he said he did not need one and was told by Mr Gelonesi what the consequences might be if he did not make one: [8], [33]. On 11 August 2009 Stanley gave instructions for the making of a will and received an explanation as to what an executor did: [38]. This evidence confirmed an understanding of the nature of a will as a document by which Stanley could record in a binding way what was to happen to his property after he died.

32. The evidence as to the nature and extent of Stanley's property was that it had not changed for some time so that his knowledge of that property was, as described by Associate Professor Peisah, "old 'crystallised knowledge'": [20]. The instructions Stanley gave concerning the response which Marjorie should make to the letter received from the owner of the adjoining property in Dee Why revealed a fairly detailed recollection and knowledge on his part of the physical characteristics of that particular property. There was also evidence that on 11 August 2009 Mr Gelonesi asked Stanley over the telephone, albeit by leading questions, about his properties and other assets and received responses to those questions which confirmed, to some extent, his knowledge of them: [38].

33. It is significant that, in contrast to the position of the testatrix in Wintle v Nye, the task which faced Stanley at the time he made his will was a fairly straightforward one. He was familiar with his property and assets, there were only two persons having an immediate call on his bounty - Marjorie and Robert - and the will as drafted and presented to him on 14 August 2009 was simple in its terms.

34. The question was whether Stanley intended to make a will in those terms - so that it could be said that it expressed his "real intentions": Barry v Butlin at 485; 1091; and "true will": Tyrrell v Painton [1894] P 151 at 157, 159. That question had to be considered in circumstances which created a suspicion that it may not do so because Marjorie, who took all of the benefit under it, had participated in its preparation and was present before it was executed.

35. As has already been noted, the primary judge referred to three matters which he considered showed that Stanley knew and approved the contents of his will. They were aspects of the events of 11, 13 and 14 August 2009. On the basis of the first and third of the events, the primary judge was satisfied that Stanley knew of the contents of the will. On 11 August he gave instructions for the drawing of a will which left the whole of his estate to Marjorie and on 14 August the will was read over to him before he signed it.

36. The primary judge considered that the events of 13 August 2009 showed that Stanley also had weighed Robert's claims on his testamentary bounty: [64]. In particular, his Honour considered that Stanley's signing of the document prepared by Marjorie showed an intent to leave the whole of his estate to Marjorie notwithstanding that he had a half-brother who also had a claim on his bounty. Although that was the outcome of the exercise undertaken on 13 August, Stanley's decision to leave the whole of his estate to Marjorie was made or confirmed on the following day when he signed his will. The significance of what happened on 14 August is that it occurred in the absence of Marjorie and after the will had been read aloud to him.

37. The events of 13 August established that Stanley knew he had a brother and that he could leave his estate to be divided between Marjorie and Robert or to be given to one or other of them. That was not controversial because, as the primary judge notes at [59], Marjorie's evidence that Stanley signed the document following the discussion she said she had with him was not challenged. A consequence of this was that his earlier rejection (at [18]) of the evidence of Marjorie and her husband as to Stanley being "upset" about Robert having made a new will was not relevant. Nor was his concern as to Marjorie's mental acuity at the time of the hearing: [58].

38. If the primary judge is to be understood as saying, by his conclusion at [67], that Marjorie's evidence of what happened on 13 August 2009 established that the will expressed Stanley's "real intentions", the effect of that evidence is overstated. As I have said, its significance is that it showed Stanley to have been conscious of his brother's existence and claim upon his bounty at the time he made the will. Those facts, taken with the events of the following day when he signed a will which had been read aloud, were sufficient to establish affirmatively that he knew and approved of its contents.

39. The appellant points to a number of matters which it is said the primary judge either failed to take into account or to give sufficient weight when addressing the issue of knowledge and approval. It is convenient to deal with those matters in the sequence in which the events to which they relate occurred.

40. In relation to the events of 11 August 2009, it is emphasised that Mr Gelonesi's firm had previously acted for Marjorie, that she procured its services to draw the will and that the instructions as to its terms were given by Stanley by telephone and in her presence. The primary judge correctly regarded each of these circumstances as suspicious in the relevant sense; as also was the fact that Marjorie stood to receive a substantial benefit under the proposed will. Also he did not accept Mr Gelonesi's evidence as to the discussions he had with Stanley about his having brothers or sisters: [41]; and was rightly critical of the fact that Mr Gelonesi had not asked any non-leading questions so as to ascertain the particular reasons for Stanley's decision to leave the whole of his estate to Marjorie. Despite these reservations, the unchallenged evidence was that during the telephone conversation Stanley instructed Mr Gelonesi to prepare a will by which he left everything to Marjorie. The giving of such an instruction by someone having testamentary capacity was evidence that Stanley knew of the terms of the will which was to be prepared for his signature.

41. Secondly, the appellant refers to Stanley's change of mind between 7 and 11 August 2009. The reasons for that change of mind are not known. A possible explanation is that he thought further about what was said to him by Mr Gelonesi on 7 August: [8]. Since about 2005 Marjorie had assisted Stanley on a daily basis with things such as the preparation of meals, payment of accounts, shopping and medical appointments: [12]. The primary judge found that this close relationship provided a rational reason for his decision to leave the whole of his estate to Marjorie. It may also have provided the motivation for his decision to make a will. The primary judge was conscious that Marjorie may have sought to persuade him to that course: [37]. The fact that Stanley changed his mind in such circumstances required vigilance in being satisfied that he understood what he was doing. Whilst it is argued that there was no good reason why Robert should have been excluded completely from Stanley's testamentary disposition, it is not submitted that in this case his exclusion was so irrational as to make it unlikely or less likely that Stanley could have known and approved of its contents. There were reasons which were capable of justifying the decision he made as rational and considered.

42. The appellant relies on the circumstances in which the 13 August document was produced and the unsatisfactory aspects of Marjorie's unresponsive evidence given in cross-examination in relation to the events of that day as requiring that this evidence should have been given little weight. Certainly it had to be evaluated carefully. The unchallenged findings establish, however, that the document was prepared, read aloud and signed; and that in that process there was reference to Robert and to different ways in which Stanley might divide his estate between Robert and Marjorie.

43. The appellant refers to the fact that on 14 August Marjorie had been with Stanley when the solicitor arrived, at which time she was asked to leave the room. However, the subsequent events showed that Stanley was given sufficient time to consider and affirm, in her absence, what he was doing. The will was read aloud and there was some questioning directed to confirming that he understood its contents. Stanley then signed the will. The primary judge's acceptance of the evidence of Mr and Mrs Gelonesi as to these events is not challenged; and is not affected by his rejection of their evidence that there had been a discussion about Stanley's having a brother or sister.

44. What is said, however, is that the fact that a will is read aloud is not necessarily conclusive. That is undoubtedly so. But in the circumstances of this case it was persuasive and entitled to significant weight. The will was in simple terms. There were only two persons having an immediate call on Stanley's bounty. The will left everything to Marjorie. That was apparent on the reading of the will. It was consistent with the instructions Stanley had given on 11 August. On 13 August Robert's claim on Stanley's bounty had been brought to Stanley's attention. Given that state of affairs, the primary judge is not shown to have erred in concluding that when Stanley signed his will on 14 August 2009 he knew and approved of its contents.

Proposed orders

45. The following orders should be made:

(1) Appeal dismissed.

(2) Appellant pay the respondent's costs of the appeal.

(3) To the extent that the respondent's costs are not otherwise satisfied by order 2, those costs are to be paid out of the estate of Stanley William Church on the indemnity basis.

46. BARRETT JA: White J found that, despite some circumstances exciting suspicion, the evidence as a whole justified a conclusion that, on the balance of probabilities, the testator knew and approved the content of the will he signed on 14 August 2009 in the presence of Mr Gelonesi and Mrs Gelonesi. For the reasons given by Meagher JA, his Honour was correct to do so. Orders should be made as Meagher JA proposes.

47. EMMETT JA: The question in this appeal is whether, in making a will bearing the date 14 August 2009, Mr Stanley William Church knew the contents of the will and appreciated the effect of what he was doing when he signed it. A judge of the Equity Division found that he did and granted probate in solemn form to the executrix named in the will. The executrix was a half-sister of the testator. The appellant, a half-brother of the testator, who was a party to the proceedings before the primary judge, appeals from the primary judge's orders.

48. I have had the advantage of reading in draft form the proposed reasons of Meagher JA for concluding that the appeal should be dismissed. I agree with his Honour's conclusion and the orders proposed by his Honour, for the reasons given by his Honour. However, I wish to make a brief additional observation.

49. In the course of his reasons, the primary judge referred to comments made by a psychiatrist, Associate Professor Peisah, concerning the mental capacity of the testator. Dr Peisah commented upon the inofficiousness of the will signed by the testator. In particular, his Honour (at [52]) referred to observations made by Windeyer J on evidence given by Dr Peisah in a similar kind of case (Kozak v Berwecki [2008] NSWSC 39 at [44]). Windeyer J referred to the view of Dr Peisah that the will in that case was "inofficious". His Honour said that such considerations emanate from Roman law and need to be treated with considerable care since "freedom of testation is the law". Clearly enough, Dr Peisah was referring to the notion in Roman law of the testamentum inofficiosum. The notion of the officiousness of a will relates to the fairness of the testator's disposal of his or her property to those who may have some claim on the testator's bounty.

50. Under Roman law, certain persons unfairly cut out or passed over were allowed to bring the querela inofficiosi testamenti, or the complaint of the undutiful or irresponsible will. Such a complaint could be made under Roman law by children against parents and parents against children who were passed over for no good reason. The right was also given to brothers and sisters of the deceased who had the same father as the deceased, but only if the will appointed a turpis persona (see Institutes 2.18.1). A turpis persona was a person whose occupation or conduct was regarded as disreputable, such as actors, gladiators, prostitutes and brothel owners. In the present case, there has been no suggestion that the testator's half-sister was a turpis persona. Accordingly, there can be no suggestion that the will presently under consideration was a testamentum inofficiosum.

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