McGrath v de Plater[2004] QSC 21

SUPREME COURT OF QUEENSLAND

[1] Vera Joan McGrath (“Mrs McGrath”) died on 25 June 2002 at the age of 90 at the Regis Grange Aged Care Facility at Birkdale.  The cause of death was shown on her death certificate as: 1.(a) orthostatic pneumonia (from which she had suffered for one day); (b) being bedridden (from which she had suffered for the previous four weeks); (c) dementia (from which she had suffered for years); and 2. hypertension (from which she had also suffered for years).

[2] Mrs McGrath was a widow when she died.  She had married John Joseph McGrath (“Mr McGrath”) in April 1964 when she was 51 years old.  She had no children but Mr McGrath had four children from his earlier marriage: John Kevin McGrath (“Kevin”) (now deceased); Kathleen Helen Peppard, Frances Mary McCarthy and Thomas John McGrath.  Each of those children in turn married and had children of their own.  When Mrs McGrath died, she had 21 step-grandchildren. 

[3] Mr McGrath died on 14 April 1978 leaving his entire estate to Mrs McGrath.  He was an extremely wealthy businessman and his estate included shares in the McGrath group of companies.  Those companies were progressively wound up over the period from December 1986 until late 1999 converting Mrs McGrath’s shareholding into money.  However, Mrs McGrath was not just a passive beneficiary of Mr McGrath’s estate.  She was active in the administration of the companies.  After the sale of the companies she received significant income from her cash investments and made substantial donations to charity.  These donations reduced her tax burden and she enjoyed the philanthropy.

[4] Mrs McGrath made a number of wills in her lifetime, two of which were in the material before the court.  Her last will was dated 9 November 2000 (the “2000 will”) and the applicant, who is the executor appointed under that will and one of Mrs McGrath’s step-grandchildren, applied to the court for orders:

1.That the court pronounce for the full force and validity of the will of Vera Joan McGrath, deceased, dated 9 November   2000; and

2.That, subject to the formal requirement of the Registrar, Probate of that would be granted to Anthony Gregory McGrath.

[5] The previous will made by Mrs McGrath was dated 29 March 1988 (the “1988 will”).  The 1988 will, as appears on its face, was prepared by a well known firm of solicitors in Southport, Adamson Bernays Kyle and Jones.  The executor appointed under that will was Mervyn de Plater, her trusted financial adviser.  Under that will, Mrs McGrath made the bequest of $10,000 to John Kevin Pforr who had been an employee of McGrath Trailers and a bequest of $10,000 and all of her jewellery to Alyson Cadan.  She then devised all the shares owned by her in the McGrath group of companies to her step-son, Kevin, and the residue of the estate was left to various charities, three-fifths to St Vincent de Paul, one-fifth to the Royal Melbourne Hospital and one-fifth to St Vincent’s Hospital in Melbourne.  She told Mr de Plater that she was leaving her money to charity and that no provision was made for her money to go to “the family”.  There was no suggestion that Mrs McGrath lacked testamentary capacity when she executed this will.  The charitable beneficiaries under the 1988 will have not however raised any objection to the present application.

[6] In the 2000 will, the applicant, Anthony McGrath (“Anthony”), Kevin’s son, was named as the executor and after gifts of $10,000 to Mr Pforr and $10,000 and the jewellery to Ms Cadan, the entire residue was to be divided amongst the grandchildren of Mr McGrath, Mrs McGrath’s deceased husband.  Anthony said in this application that at the time the 1988 will was made, Mrs McGrath’s estate consisted mainly of her shares in the McGrath group of companies.  Anthony said that his father told him on several occasions in 1999 and early in the year 2000 that Mrs McGrath had left her residuary estate to him on his undertaking on his death to leave the shares to the grandchildren of Mr McGrath.  Anthony said that he was appointed Mrs McGrath’s attorney in about early 1999 but has mislaid the Power of Attorney.  Kevin died in August 2000.

[7] Anthony said that he was contacted by Maria Redman in May 2000, before the death of his father.  Mrs Redman told him that Mrs McGrath wanted a new will prepared appointing Anthony her executor and leaving her residuary estate equally to Mr McGrath’s grandchildren.  It appears that Mrs Redman was a friend of Mrs McGrath who had been her neighbour prior to early 2000 when Mrs McGrath moved to a retirement village.

[8] Anthony said that he travelled to the Gold Coast and spoke to Mrs Redman.  He does not disclose in his affidavit the date of this visit.  He said that Mrs Redman told him again that Mrs McGrath wanted a new will prepared, appointing Anthony her executor and leaving her residuary estate equally to Mr McGrath’s grandchildren.  Anthony says he then spoke to Mrs McGrath and went through the various items that had been raised with him by Mrs Redman.  He says that Mrs McGrath confirmed that this was what she wanted in her new will.  In his affidavit filed in this matter, he swears that when he spoke to the deceased about this she appeared to him to be entirely lucid and fully aware of the purpose of the will, of what her assets were and to whom she wanted to leave them.

[9] Anthony swore that he subsequently arranged the preparation of a will in accordance with Mrs McGrath’s instructions.  He posted the will to Mrs Redman and took no further part in its execution.

[10] After Mrs McGrath’s death, Timothy Whitney, a solicitor who is an accredited specialist in succession matters, was appointed interim administrator of the estate with his grant limited to the collecting in of the deceased’s estate and paying her debts.  He paid the bequest to Kevin Pforr and Alyson Cadan and the residue of the estate has now been converted into money.  The net estate now stands at $8,997,538.61.

[11] On 14 April 2003, Mervyn de Plater renounced his right and title to probate and execution of the 1988 will. 

[12] Anthony McGrath, who was appointed executor under the November 2000 will, has applied to the court to pronounce for the full force and validity of the 2000 will and that, subject to the formal requirements of the Registrar, probate be granted to him.  The principal matter for concern in this case is whether or not Mrs McGrath had testamentary capacity at the time when she executed the will dated 9 November 2000.

[13] In order to show testamentary capacity, the applicant must show that at the time Mrs McGrath executed the 2000 will, she knew what she was doing and the effect of her dispositions.  The testator must know what estate she had to dispose of and what persons might have a claim on her.[1]  The burden of proof lies on the propounder of the instrument to show that she had testamentary capacity.[2]  Before being admitted to probate, it must be shown that the will was the last will of a free and capable testator.[3]

[14] Mrs McGrath’s general practitioner during her lifetime was Dr GBL Parker of Surfers Paradise.  On 20 October 2002, he wrote a medical report in which he said:

“This lady enjoyed excellent health throughout her life until her final years known to me.  At this stage she developed a painful kypho-scoliosis and began to exhibit signs of dementia.  When I saw her last in 1999, Mrs McGrath had severe dementia and had lost her testamentary capacity.”

[15] Subsequently, Dr Parker provided a further note to the applicant’s solicitors dated 15 July 2003 which says:

“While it is true that I attended Mrs V McGrath for in excess of 30 years all records have been destroyed.  My state of health is such that I recall very little in the way of her history”.

[16] Anthony says with regard to that:

“Reference to the Pindara Hospital records obtained by my solicitor indicates that Dr Parker was in error when he said in his first report that he last treated the deceased in 1999 and that he in fact last treated her in 2001 shortly before she was admitted to the Regis Grange Aged Care Facility.”

The Pindara Hospital records are not contained in the material before the court.  It appears however that Mrs McGrath was admitted to the Regis Grange Aged Care facility in May 2001.  That may have been the date when Dr Parker last saw Mrs McGrath.  Accordingly, Dr Parker’s brief reports, while causing some concern, do not advance the matter one way or the other.

[17] Mrs Redman described in her affidavit how it was that she came to contact Anthony with regard to a proposal for Mrs McGrath to change her will to leave the residuary estate to her step-grandchildren rather than the charities she had nominated in her 1988 will.  Mrs Redman was born on 7 June 1925 and is now 78 years of age.  Prior to her retirement in 1990, she worked in dress shops in Surfers Paradise.  She deposed that she was friendly with Mrs McGrath for more than 15 years prior to her death in 2002.  They met at the local church and became close friends.  After the death of her husband, Mrs McGrath purchased a home unit in the block of units known as “Blue Surf” where Mrs Redman owned a unit.  Over the years they spent time together on most days and Mrs Redman took Mrs McGrath to shopping and to church and assisted her as she became older whenever she needed help.  Mrs Redman refused any offers of money from Mrs McGrath for that assistance. 

[18] Mrs Redman said that when Mrs McGrath’s husband died, his son, Kevin, looked after Mrs McGrath’s business affairs with her.  Mrs Redman said that about 10 years ago, Mrs McGrath started discussing her business affairs with Mrs Redman and showed her a copy of her will.  Among the bequests was the bequest of the shares in the McGrath group of companies to Kevin.  Mrs Redman said that Mrs McGrath informed her that the shares formed the major part of her estate and that she had told Kevin that, in the event of her death, she wanted them to go to her husband’s grandchildren and she was relying on Kevin to do this for her.

[19] Mrs Redman said that about five years ago, Mrs McGrath informed Mrs Redman that the family shares were gradually being sold and converted into cash and she was concerned that if she did not change her will her husband’s grandchildren would miss out.  Mrs Redman telephoned Kevin and discussed the matter with him.

[20] Mrs Redman said that in about 1998, Kevin’s health was deteriorating and his son, Anthony, took over dealing with Mrs McGrath’s affairs.  Mrs Redman said she discussed Mrs McGrath’s will with her and Mrs McGrath said that she proposed appointing Anthony as executor and leaving the rest and residue of her estate to her late husband’s grandchildren.  Mrs Redman said that she contacted Anthony who lived in Sydney at Mrs McGrath’s request and discussed the new will with him.  There is no explanation as to why Mrs McGrath did not contact Anthony herself.  Mrs Redman said she discussed the new will with Anthony a few times and told him of Mrs McGrath’s wishes.

[21] Anthony said he received a request from Mrs Redman to prepare the 2000 will for Mrs McGrath.  Anthony is an accountant.  He deposed that he did not know any solicitor practising in succession law so he telephoned Grant Carolan, a solicitor in Canberra, and retained him to prepare the will.  He said he had met Mr Carolan sometime prior to 1991 when Mr Carolan was practising in Sydney.  Apart from the preparation of the 2000 will, Anthony and Mr Carolan met socially once or twice each year between 1993 and 1999 when they were both living in Canberra.  In addition, Mr Carolan acted for Anthony personally in a conveyancing matter and professionally in some insolvency work.  Mr Carolan practised as a solicitor in Canberra from 1992.

[22] Mr Carolan deposed that he met with Anthony after Anthony telephoned him and invited him to join him for a cup of coffee and to “discuss a matter concerning his grandmother’s will”.  They discussed Mrs McGrath and the circumstances in which Mrs Redman had provided Anthony with instructions for the preparation of a new will.  Mr Carolan regarded Anthony as an honest and reliable professional who wanted to do the right thing.  Mr Carolan told Anthony that he would be prepared to draw a will in accordance with the instructions received from Mrs Redman.  Mr Carolan said that Anthony told him that Mrs McGrath was quite old, that she was living in Brisbane and that “every now and again she was not quite with it”.  Mr Carolan told Anthony that he might want to talk to a doctor to see if she was capable.  Anthony deposed that he told Mr Carolan that the deceased was quite elderly and that she was “not 100 per cent”.  He said he cannot recall Mr Carolan giving him advice about whether or not he or another lawyer ought to interview Mrs McGrath prior to the execution of the will in order to assess her testamentary capacity.

[23] Mr Carolan says that he was shown a copy of another will of Mrs McGrath’s by Anthony which he read.  This must mean that Mr Carolan was aware that Mrs McGrath had solicitors from her own locality who had acted for her in the preparation of that will.  It does not appear, however, that he recommended that Anthony contact Mrs McGrath’s solicitors.  No explanation for that is proffered.  Nor is any explanation proffered as to why Anthony did not accept Mr Carolan’s advice or suggestion and have Mrs McGrath assessed by a medical practitioner. 

[24] Mr Carolan said he recalled reference in the earlier will to the disposition of some shares in the McGrath group of companies and that Anthony had told him that the companies were or had been wound up and the shares converted to cash.

[25] Mr Carolan told Anthony that he did not wish “to get into a professional situation in relation to any assistance” that he provided to Anthony.  He has given no explanation to the court as to why that was the case.  However, Mr Carolan agreed to draw the will and had his secretary in the Canberra office of Corrs Chambers Westgarth draft a will in accordance with the instructions provided to him by Anthony.  Mr Carolan did not keep notes nor a copy of the will, nor did he open a file.  He said he quite deliberately did not identify on the coversheet of the will the office of Corrs Chambers Westgarth in Canberra.  He said, “I suppose it could be said I simply did it for him as a favour”.  Mr Carolan said he was not asked by Anthony to attend the execution of the will nor to visit Mrs McGrath and consequently he did not do so and nor did he ever speak to her.  Mr Carolan did not render an account for his work in relation to the preparation of the will.

[26] Anthony says that he received the draft 2000 will in the post from Mr Carolan within a month of asking him to draw it.  He did not contact a medical practitioner or a legal practitioner to attend upon Mrs McGrath to determine whether she had testamentary capacity to execute the will.  As I have said, he has not explained why he did not do so.  After reading the 2000 will, he posted it to Mrs Redman.  Mrs Redman said that after she received the will, it sat there for several months as there was “no urgency about having it signed”.  She was waiting for Mrs McGrath to have a “good day” so that the will could be executed.  Mrs Redman says that in about August 2000 Kevin died, and shortly after that, Mrs McGrath and Mrs Redman had a further conversation in which Mrs McGrath said it was important to her to have the new will signed to make sure that Mr McGrath’s grandchildren were properly cared for. 

[27] The best evidence, indeed the only evidence, which might suggest that Mrs McGrath had testamentary capacity was found in the evidence of the two lay witnesses to the 2000 will.  Mrs Redman gave evidence as to Mrs McGrath’s state of mind on the day in which she executed the will.  Mrs Redman says that in 2000 there was no doubt that Mrs McGrath was suffering from dementia but, according to Mrs Redman, she had her good days and her bad days.  Mrs Redman’s evidence, as deposed to in her affidavit, is as follows:

“On her good days Vera read the newspapers and watched television.  She particularly enjoyed reading the local church newsletters.  On these days she was quite capable of discussing current affairs and the news generally.  On her bad days she was quiet and withdrawn and seemed happy for me to chat.

On the day her will was signed, 9 November 2000, I realised that Vera was having a good day and I arranged for another witness to be present at which time I read the will to Vera and discussed it with her.  She then read the will.  She appeared to understand it and said words to the effect, ‘That’s what I want.  I want to make sure that John’s grandchildren are properly cared for under the will’.

So far as I am concerned Vera was totally lucid and understood what she was signing and the effect that it would have on her estate.”

[28] Merrell Carey was the other witness to the execution of Mrs McGrath’s will.  Mrs Carey met Mrs McGrath in November 1999 when Mr and Mrs Carey moved into an apartment opposite the one occupied by Mrs McGrath.  She saw Mrs McGrath most days.  However, she knew nothing about her business affairs and they never mixed socially other than to say hello to each other.  She had met Mrs Redman on various occasions when Mrs Redman had been visiting Mrs McGrath. 

[29] Mrs Carey deposes that one day in November 2000, Mrs Redman came to her apartment and told her that she wanted someone to witness a will.  She told Mrs Carey that she had approached the superintendent of the village, Colleen O'Connor, who had told her that it was against company policy for staff to witness documents.  She said that Ms O'Connor recommended that she find a witness who knew Mrs McGrath.  Mrs Redman asked Mrs Carey if she was prepared to witness Mrs McGrath’s will and Mrs Carey agreed. 

[30] When they arrived in Mrs McGrath’s apartment, Mrs Carey said to her, “I’m going to witness your will”.  Mrs McGrath replied, “You’re not in it”.  Mrs Carey then said to her, “The fact that I’m a witness means that I would be unable to receive anything under the will”.  Mrs Carey says that she remembers that Mrs McGrath had some trouble finding a suitable pen, but when she found it, she signed the will in the presence of Mrs Redman and herself and they both then witnessed the will. 

[31] Mrs Carey said that she was not present when the will was read and was not aware of the contents of the will.  This directly contradicts the evidence of Mrs Redman who said that she arranged for another witness to be present when she read the will to Mrs McGrath and discussed it with her. 

[32] Mrs Carey said that she had frequent contact with Mrs McGrath at that time and was not aware that she was suffering from dementia.  It appears that this social contact was very superficial.  Mrs Carey said that Mrs McGrath was always pleasant and well dressed.  She concluded by opining, “So far as I’m concerned Vera was totally lucid and understood that she was signing her will.  She was proud of the fact that she didn’t need glasses”.  This is of course the opinion of someone who did not know Mrs McGrath well and has no knowledge of the nature of testamentary capacity.[4]

[33] The difficulty that arises in the present situation is that Mrs McGrath, who on any reliable account was suffering from dementia, made a significant change to her will worth millions of dollars in a situation where she did not herself see or even speak to a solicitor either to give instructions or to attend upon her when she executed the will to ensure that she had testamentary capacity.  The evidence does not reveal that she saw a medical practitioner who could attest that she had testamentary capacity. 

[34] The only medical evidence before the court, apart from the notes by Dr Parker referred to earlier, are two reports dated 29 September and 2 October 2003 by Associate Professor David Fonda, the director of Aged Care Services at the Caulfield General Medical Centre in Victoria.  The letters of instruction to Associate Professor Fonda are not included in the material and neither is the medical evidence to which Associate Professor Fonda had regard in providing his opinion.  He did not ever see Mrs McGrath and so was obliged to rely on assessments made by others who had seen her.  There is no evidence of any medical evaluation made of Mrs McGrath in November 2000.

[35] Associate Professor Fonda’s mind was directed to the relevant question which was, “What was her state of mind in relation to testamentary capacity in November 2000?”  He reviewed various medical records from various admissions of Mrs McGrath to the Pindara Gold Coast Private Hospital (“Pindara”) in January 2000, July 2000, September 2000 and February 2001, ie before and after she executed the 2000 will in November 2000. 

[36] It appears from Associate Professor Fonda’s report that Mrs McGrath was admitted to Pindara in January 2000 for removal of skin cancers.  Reference is made to her “dementia” on 12 January 2000 as well as a note of “patient confused at inappropriate times”.  On 14 January 2000, Associate Professor Fonda reports that there is an entry, “wandered into adjacent room”, and “climbing over raised bed rails”.  On 15 January 2000, the hospital records note that she, “wandered into next room again during night”.  On 16 January 2000, the records note, “does not understand the concept of call bells”.  Associate Professor Fonda’s interpretation of this information is that there was no doubt Mrs McGrath was significantly confused, but given that she had been given a general anaesthetic on 12 January, this might be interpreted as a post-operative delirium of someone who had dementia.

[37] In July 2000, it appears that Mrs McGrath was again admitted to hospital for further excision of skin cancers on her face.  Again, dementia was noted in the admission history.  Under general anaesthetic, she had skin grafts applied following the excision of the skin cancers.  Post-operatively, it was noted, “She has continually picked at the suture lines and dressings.  At 20:45 she came out having just removed all bandages and combines and skin grafts from the centre of the forehead, there is profuse bleeding”.  The next morning she was again found picking and pulling at the dressings such that the entry from her surgeon noted that, “She has removed and destroyed her grafts”.   On discharge on 10 July, the notes record that she was “pleasantly demented”.  There was a request noted to, “Please try and keep dressings in place.  We know this is difficult”.  Associate Professor Fonda was of the opinion that this might again reflect a post-operative delirium.

[38] In September 2000, Mrs McGrath was again admitted to Pindara having fallen and fractured her wrist.  The admission notes again refer to dementia in her past history.  The notes two days post-operatively refer to Mrs McGrath being confused at times and trying to pull off her plaster of Paris.  Her confusion is again noted on 18 September 2000.  It is recorded that she “needs to be fed as she forgets to eat”.[5] Associate Professor Fonda says that the procedure was performed under general anaesthetic with some post-operative pethidine which can cause confusion.

[39] Mrs McGrath was not admitted again to Pindara until February 2001 having been sent in by ambulance with abdominal pain.  However, when she arrived she denied that anything was wrong with her.  The notes say that they were, “unable to obtain any history from patient” and that she “does not want to be in hospital.  Not sure why she is here”.  Associate Professor Fonda again says the vagueness is consistent with at least moderate dementia unless she was suffering from delirium. 

[40] Medical notes from Dr Stellmach commenced, according to Associate Professor Fonda’s report, around May 2001.  He apparently notes, “Demented”, in her medical history.  Dr Stellmach’s report is not in the material before the court, however, it is quoted in part in an opinion by counsel, which is exhibited to Anthony’s affidavit, as follows:

“At my first visit (09/05/2001), I have recorded “Demented” as my assessment … although I have not recorded an MSQ (Mental State Questionnaire) value.  This entry means to me that she would have been demented and was not able to manage her affairs.

In my time as her GP, I was not able to have any conversations with her due to her dementia …  She was not able to understand anything I said to her … I do not think she would have had any lucid moments after her admission to the Grange Nursing Home and I don’t think she could have managed her affairs”.

[41] As well as the reports from Pindara and the notes from Dr Stellmach, Associate Professor Fonda also referred to various records of the Regis Grange Aged Care Facility which was the nursing home to which Mrs McGrath was admitted in early May 2001 and where she lived until she died.  Associate Professor Fonda referred to many entries in those records from May – June 2001 that reflect that she was significantly confused, for example, “entering other rooms uninvited” and “found sitting on the toilet with clothes on”.  In the Activities Daily Living assessment made on 15 June 2001, in the section about level of comprehension, the box is ticked, “Constantly given reminders for living activities of daily living and at times staff have to assist resident with living activities”.  In the behaviour summary chart apparently made in May 2001, there were daily ticks under “Verbal aggression, physical aggression, wandering and danger to self”.  On 20 June, she is recorded as yelling at staff and crying. 

[42] In 20 June 2001, her speech was noted to be “slurred, mumbles, inappropriate speech.  Hard at hearing”.  It further notes that Mrs McGrath, “has difficulties assimilating information due to dementia.  She is unable to comprehend most information, is unable to reply appropriately in most situations.  Due to her dementia she is intimidated and suspicious of staff attempts to address her care needs”.  In the medical assessment made on 10 May 2001, it is noted that, “due to confusion does not recognise medication or the reason why she needs it”.  In the section related to her personal hygiene it notes, “a stressful reaction to hygiene requirements.  Potential for verbal, physical aggression”.  Associate Professor Fonda interpreted this information as saying that there could be no doubt that from her period of admission to the nursing home in May 2001 she was suffering from at least moderate, to moderate to severe, dementia.  This was a relentless process until the time of her death in 2002.

[43] In view of all this information, Associate Professor Fonda formed the opinion that she already had quite significant dementia by May 2001 and would certainly not have had testamentary capacity from that date.  He was also of the view that there was little doubt that during each of the periods of hospitalisation from January 2000 to February 2001, she would not have had testamentary capacity.  In his opinion, the hospital records showed that she was either suffering from moderate to severe dementia or acute delirium.

[44] Significantly, as Associate Professor Fonda observed, there was no reference at all in the materials provided to him which showed that Mrs McGrath had anything other than a significantly confused state in the period between January 2000 until her death in 2002.  His opinion as to her capacity in November 2000 was expressed as follows:

“Given that she had what appeared to be a moderate to severe dementia in June 2001 it seems unlikely that this would have developed acutely in the proceeding six – eight months.  Dementia generally is a slowly progressive condition over many years and therefore seems almost certain that to reach the degree of severity in June 2001 that she would have had at least mild, or mild to moderate dementia during the year 2000.  Hence, if this information alone were to be used to gauge testamentary capacity then it would be logical to extrapolate that she did not possess this in November 2000.  However, this is speculation as there is no information provided to inform us of her mental state between periods of hospitalisation”.

[45] He concluded:

“In conclusion, there is little doubt that she did not have testamentary capacity during any of the periods of hospitalisation in 2000 and 2001.  Furthermore, she certainly would not have had testamentary capacity by June 2001.  In the absence of any documented evidence one way or the other of her mental state between the above periods of hospitalisation, I cannot dismiss the possibility, that she could have recovered from her episodes of delirium to the point of having testamentary capacity in November 2000”.

That report was given on 29 September 2003.

[46] On 1 October 2003, the applicant’s solicitor sent copies of the affidavits of Mrs Redman, Ms O'Connor and Mrs Carey and an unsworn statement by Clifford Rodd to Associate Professor Fonda, asking if the contents of any of those affidavits shed further light on Ms McGrath’s state of lucidity in November 2000.  Associate Professor Fonda said that in his report of 29 September 2003 he indicated there was no evidence presented to show that the deceased had “lucid” periods between her episodes of confusion and delirium.  On the basis of the affidavit material, he was however prepared to say that Mrs McGrath did have some lucid periods in 2000 but that did not necessarily equate to her having testamentary capacity as he was unable to determine from the information provided one way or the other whether her short term memory was sufficiently intact in November 2000 to understand the essential criteria for testing competence.  His conclusion was that the additional information increased the possibility that Mrs McGrath may have been sufficiently aware at the time of signing her last will in November 2000 to have a general awareness of her estate, her beneficiaries and her preference for changing her will.

[47] It follows that the best medical evidence the applicant is able to provide to the court suggests no more than that it was possible that Mrs McGrath had testamentary capacity at the time of the execution of her will.

[48] Advice given by the applicant’s counsel which was exhibited to the applicant’s affidavit refers to a number of other hospital admissions to which Associate Professor Fonda was not referred.  She was admitted to Pindara on 8 August 1997 after a fall the previous day.  She remained in hospital for 10 days.  On admission, counsel’s advice reported, she was noted to be alert and orientated but by 12 August she was noted to be very vague.  On discharge she was transferred to Cavemont Hostel for an unknown length of time where she was visited by Mr and Mrs de Plater.  Mr de Plater described Mrs McGrath at this time as being “quite vague but at other times perfectly lucid”.

[49] Counsel’s advice also referred to two incidents in 1998 and 1999.  In December 1998, Mr Rodd, the manager of the ANZ Bank in Surfers Paradise where Mrs McGrath did her banking, became concerned because he could not raise her on the telephone for a period of some days.  He contacted the police who broke into Mrs McGrath’s unit.  They found that she had fallen over some days previously and injured her right shoulder.  She had been unable to get up and, when found, was lying on the floor covered with faeces.  She was taken by ambulance to Pindara where she was admitted until 6 January 1999 and treated for her shoulder injury and a left leg ulcer.  On admission, she was noted to be disorientated and very confused. 

[50] On 1 January 1999, her confusion was noted to be much less but she was very incontinent of urine.  On 2 January, her confusion improved further, only to deteriorate again on the morning of 5 January when she thought that people were having a party in her home unit.  By the evening of 5 January, her confusion had improved again and she was no longer incontinent of urine.

[51] On discharge, Mr Rodd, the bank manager, arranged for Mrs McGrath to go to an independent living unit at Cyprus Gardens Retirement Village at Carrara rather than to return to live in her Broadbeach apartment.

[52] On 6 July 1999, Mrs McGrath was re-admitted to Pindara for an ACAT assessment, due to her suffering an increasing number of falls and increasing confusion.  On 9 July, she was noted to have an offensive body odour because she had not showered for several days.  She was very confused, incontinent and staff had to take possession of her money ($560) because she was dropping it around her room.  She required full assistance with activities of daily living.  The ACAT assessment took place on 14 July.  It noted she was very confused and could not sensibly answer questions put to her.  She had no significant insight into her difficulties.  On 16 July 1999, when she was transferred back to Cyprus Gardens, she was noted to be “pleasantly confused”.  It does not appear that this material was before Associate Professor Fonda when he made his reports.

[53] Mr de Plater says that when he visited Mrs McGrath in a nursing home in August 1997 she was sometimes vague and sometimes lucid.  He said that Maria Redman rang him because she was concerned about Mrs McGrath’s condition.  One day Mrs Redman rang to say that Mrs McGrath had gone missing and was found in one of the units at ‘Blue Surf’ where she had spent the night sleeping on the floor. 

[54] Mr de Plater deposes to being concerned when he heard from Mrs McGrath’s bank manager that the McGrath family were taking over the running of her affairs.  He was concerned that they had not contacted him because he had been her personal financial adviser for so long.  Mr de Plater contacted David McEvoy at Coopers and Lybrand and expressed his concern.  A short time later, Anthony telephoned Mr de Plater. 

[55] Mr de Plater told Anthony that he was concerned that what the family had planned for Mrs McGrath may not coincide with what Mr de Plater had always believed to be her wishes.  Mr de Plater then telephoned Mrs McGrath and asked her if she was aware that her financial arrangements had been taken over by Anthony.  He received a very vague response from her.  Mr de Plater said that he asked if she wanted him to visit her to talk about it and she said, “I’ll be in touch”.  When Mr de Plater heard nothing from Mrs McGrath and because of his concern for her financial welfare he wrote a letter to the Public Trustee setting out his concern.  The Public Trustee told Mr de Plater after enquiries had been made, that before any document had been done on behalf of Mrs McGrath, a medical certificate had been obtained indicating in effect that she was in her right mind to sign documents.  Mr de Plater took no further action as he felt that he had done everything he could do as her financial adviser. 

[56] It does not appear whether he knew about the 2000 will but he certainly did not know that no medical certificate had been obtained prior to her signing a new will.  If, as it appears, a medical certificate was obtained prior to her signing the enduring power of attorney, then it is apparent that Anthony was well aware of the problems about the capacity of his step-grandmother and the prudence of having her testamentary capacity assessed by more than an ex-neighbour and friend when she executed her will.

[57] A number of matters in this case give rise to concern.  They include the circumstances that Anthony received instructions initially from Mrs Redman; his failure to have Mrs McGrath’s testamentary capacity assessed by a medical practitioner at the time of execution of the will; the unusual circumstances of Mrs McGrath’s 2000 will being drafted by a solicitor from Canberra who did not ever see or speak to Mrs McGrath and who was not present when the will was executed; and the unexplained failure to consult the executor under the 1988 will or the solicitors who acted for Mrs McGrath in the drafting and execution of that will.  The applicant’s own medical expert is, quite properly, not able to do anything more than admit the possibility that the testator had testamentary capacity at the time of execution of the 2000 will.  The evidence before the court, not all of which was given to Associate Professor Fonda, suggests that Mrs McGrath was suffering from dementia from at least 1997.

[58] The applicant asked that this matter be determined summarily.  However, I am far from satisfied that Mrs McGrath had testamentary capacity at the time she executed a will on 9 November 2000.  I therefore refuse the application to pronounce for the full force and validity of that will and refuse the order that, subject to the formal requirements of the registrar, probate should be granted to Anthony Gregory McGrath.  I will hear submissions as to the form of the order.