Screen Test: Court of Appeal prefers lawyer’s evidence over medical on testamentary capacity (NSW)

Capacity is quite the minefield.  Any practitioner that works within this field, may very well agree with me.  I would even hazard a guess and go as far as to say that perhaps even medical practitioners may also share the same view.

Recently, in the case of Drivas v Jakopovic [2019] NSWCA 218, the New South Wales Court of Appeal was called to determine the question of testamentary capacity regarding the making of the deceased’s last Will.  The reason this case piqued my interest was as a result of the evidence (both legal and medical) that was proffered by the parties and the fact that the court ultimately determined to give greater weight to the evidence of the solicitor, as opposed to the medical practitioners who weighed in.

If nothing else, this case highlights the importance of a solicitor’s evidence in the making a will, where there is a question or concern regarding the will-maker’s capacity, and also the evolving and complex nature of legal capacity.

In this case, the deceased had left a will dated 10 September 2007 where she had left her estate equally between her two children; Boris and Branka.  Importantly, the Will further provided that in the event that Boris had predeceased her, Boris’s share would flow through to any of his children who survived Boris. However, the same provision did not apply to that of Branka, should she have predeceased her mother.  Sadly, Branka did predecease her mother leaving a child, Anita.

Following the deceased’s passing in September 2015, Anita, as the child of Branka who has predeceased the deceased, sought to apply to uphold an earlier will from May 2007 on the basis that the September 2007 will was invalid due to the deceased’s lack of testamentary capacity. Anita later adjusted her claim to attempt to uphold an earlier 1998 Will. The earlier May 2007 and 1998 will both included provision for Anita, in the event Branka predeceased her mother. Accordingly, the September 2007 Will was quite a marked difference, in terms of provision for grandchildren, to that of the earlier wills made by the deceased. The May 2007 Will had provided for 60% of the estate to go to Branka and 40% to Boris, whereas the September 2007 divided the estate in equal shares between Branka and Boris, thereby reducing Branka’s inheritance by 10%.

In the first instance, the primary judge dismissed Anita’s claim And upheld the September 2007 will. The court was not satisfied that the deceased lacked testamentary capacity when making that well. Anita then appealed the decision and set out 5 grounds for her appeal:

  1. That the primary judge erred in giving weight to the solicitor’s evidence;
  2. That the primary judge erred in failing to give proper weight to the medical evidence;
  3. That the primary judge should have found that Boris’ Conduct gave rise to suspicions as to whether the deceased knew and approved the contents of the September 2007 Will;
  4. Because of those circumstances, the primary judge should have expressly considered when the deceased knew and approved the contents of the Will;
  5. That the primary judge failed to properly evaluate evidence in respect of Boris’ credit.

The Deceased suffered from dementia, specifically Alzheimer’s disease, and started exhibiting symptoms in as early as 2006. The medical evidence tendered in the trial included:

  • Evidence from the deceased’s GP (Dr Mao)  from 2006;
  • A CT scan of the brain showing significant vascular disease consistent with dementia in October 2006;
  • An Mini-Mental State Examination (MMSE) administered by neurologist (Dr Beran) in April 2007 – with a score of 18/30;
  • Notations in respect of an Aged Care Assessment Team (ACAT) assessment carried out in May 2007;
  • A further MMSE administered by a GP (Dr Steinohrt) in June 2007 – with a score of 21/30; and
  • Expert evidence by a consultant geriatrician (Dr Rosenfeld).

In further context of what had occurred in respect of the changes, the deceased had been admitted to an aged care facility against her wishes in about May 2007.  It was understood that the Branka and Anita Had assisted in placing the deceased in care. Boris had given evidence of his conversations with his mother and his mother had complained to him that Branka and Anita had locked her up. There was evidence by Boris and friends of the deceased that the deceased was very distressed and angry about being admitted to the nursing home.

The Solicitor who attended the deceased for the May 2007 Will did not give any evidence.

The Solicitor who attended on the deceased for the September 2007 Will, Mr Taylor, gave evidence of the making of the Will. Mr Taylor gave evidence that he did not have any actual recollection of attending on the deceased but gave evidence as to the content of his file and his usual practice when making Wills for elderly clients. Notably, the solicitor gave evidence that the inclusion of the provision in the September 2007 will that Boris’, but not Branka’s, children would inherit their parent’s share if that parent predeceased was not in accordance with his usual practice and, as such, he would not have included such a provision without being expressed instructed by the testator to do so.

The Court considered the various medical evidence and noted that Dr Beran gave evidence that the CT scan provided “unequivocal supportive evidence of the deceased’s dementia” but the CT scan “amy or may not have an effect on particularly exercises of executive function in the particular patient”. Dr Rosenfled said that the CT scan “not indicate the degree or nature of cognitivie impairment that arises from those changes” further explained that “the degree to which changes are apparent on CT imaging does not correlate closely with the degree of cognitive impairment…” (para 35 and 36).

In relation to the MMSE tests, the Court noted that Dr Beran’s evidence was that the MMSE 18/30 was “clearly indicative of significant and modern cognitive impairment” and “represented significant dementia’ Whereas, Dr Rosenfeld was of the view that a result of 18/30 on the MMSE indicated “likely presence of dementia”. (parap 37).

Of MMSE’s generally, Dr Rosenfeld made the comment, referenced at para 38 of the judgement, that:

The MMSE is an instrument that functions as a screening test and does not provide reliable information in regard to the degree or nature of dementia…

The MMSE provides little and sometimes misleading information regarding higher level cognitive function (executive functions such as for example planning, initiative, insight and understanding).

The diagnosis of dementia does not per se extinguish capacity or testamentary capacity”

Dr Beran responded to the report by Dr Rosenfeld and said that the MMSE test “is a requirement for us to use this test to prescribe appropriate treatment”. In cross-examination, Dr Brean accepted that “a MMSE test is a “small simple test” and it could only measure short term memory loss over the period of time taken to administer the test.” (para 39).

In an earlier report, Dr Rosenfeld said, as referred to in para 40 of the judgement, that:

the MMSE test does not… provide reliable detail of the extent or nature of cognitive (thinking) impairment and, in particular, does not provide a reliable or useful indication of executive function (planning, insight, reasoning).”

Dr Rosenfeld offered the comment that MMSE tests be used to screen the likelihood of dementia, rather than being a measure of cognitive function. Noteably, in cross-examination, Dr Rosenfeld accepted that the MMSE test is a “poor indicator of higher level cognitive function” and “often very significantly underestimates those impairments”. (para 40)

In referring the primary judgement, the Court noted that the primary judge heldthat the fact that the Will was prepared by “an experienced solicitor who detected no difficulties with the deceased’s testamentary capacity when he prepared her Will” was “valuable evidence which favour[ed] [his] finding upholding the Will“. (para 46)

The primary judge was satisfied that the first element of the Banks v Goodfellow test was satisfied and given that the deceased’s estate was ‘simple’, the second element was also satisfied. Of the third element, the primary judge considered whether this depended on the “supposed irrationality of leaving Anita out”. On this element, the primary judge, referred to in para 47 of this judgement, said:

‘Unlike Carr v Homersham, there is no direct evidence from the solicitor who prepared the will of the reasons given by the deceased for not including Anita. Buyt the fact that that the new will also reduce Branka’s share from 60% to 50%, as well as the events of the four months leading up to the making of the will, strongly suggest that the deceased reacted against the conduct of Branka and Anita inputting her into SWIAA gardens against her wishes.

The only evidence directly concerning the deceased’s attitude towards Anita comes from Karen and Boris… That evidence is limited in weight. Boris’ is self-serving and Karen could not be cross-examined on hers. The evidence is plausible but not decisive.

There was nothing unreasonable about Branka wanting to go away on holiday. And, on the face of it, there was nothing unreasonable about Anita wanting to give priority to looking after her children, especially her newborn. The reasonableness of Anita’s conduct is not completely clear on the evidence

The deceased’s wish to stay in her home may have been unreasonable and she may have overreacted been placed at SWIAA Gardens. But the deceased was not wrong in perceiving that she had been placed there for the convenience of Branka and Anita, and that this had been done contrary to her wishes. The deceased would also have known that Anita had done nothing to help her, or, apparently, even to contact her, while she was there. On the evidence before the court it would have been open to the deceased to think that if Anita had been prepared to help, she would have been able to stay at home. On that view, Anita could have been seen as more to blame than Branka. Whether this would have been fair, or even correct, does not matter. The decision to exclude Anita was not so irrational as to bespeak some form of animus against Anita which amounted to a delusion in the relevant sense.

(my emphasis added)

Paras 189-192 of primary judgement.

As regards the medical evidence, the court referred to the primary judges comment, referred to at para 48 of this judgement, as follows:

For his part, Dr Rosenfeld saw Mr Taylor’s general practice, as described in his affidavit, as being “suggestive but not definitive” of the deceased having had testamentary capacity. The decisive matter for Dr Rosenfeld appears to be that the deceased did not refer to her grandchildren by names in their wills as well as the generalised evidence of cognitive impairment, memory dysfunction and “likely executive thinking impairment”. In his supplementary report Dr Rosenfeld also relied on the previous wills and the deceased which provided in conventional form for her children’s children to take their parent share in the event that they predeceased her. He said that “the significant change in distribution to her grandchildren in the event of her children predeceasing her was more likely than not a higher-level reach that she would not have obtained”.

I acknowledge that there is room for debate about the issue. But I have already explained why I do not agree with these views. To my mind, the very fact that the deceased made a distinction between Boris’ children and Branka’s child, Anita, in writing her will suggest that she did bring reasoning to bear on the question. The fact that previous wills did not make the distinction is meaningless if as I have suggested the decision to exclude Anita could have been a reaction to the way she had behaved, will was supposed by the deceased to have behaved, in connection with the deceased in voluntary admission to SWIAA Gardens. The events surrounding the admission were not subject to instructions to Dr Rosenfeld. This was quite understandable but it underlines the point that Dr Rosenfeld conclusion was not a matter of scientific reasoning.

The difficulty with an expert expressing a conclusion on a mixed question of fact and law is of the expert opinion may ultimately depend upon an understanding of the legal principle, perhaps unstated, which is incorrect; or upon a view of the facts which is not congruent with the findings ultimately made by the court; or both. In my view, the opinions in this case are prime examples of this. I have seen and analysed the whole of the evidence in this case, which Dr Beran and Dr Rosenfeld have not. I have also had the advantage of the decision in Carr v Homersham which had not even been delivered at the time they wrote their reports and gave evidence. I have also had the assistance of submissions from both counsel on the legal and factual issues in the case. In my view, the opinions of Dr Beran and Dr Rosenfeld do not assist in resolving the question of deceased testamentary capacity.

(my emphasis added)

Paras 199-202 of the primary judgement.

In determining the appeal, the Court said that it felt that the primary judge was correct to place significant weight on Mr Taylor’s evidence and noted that he “was a solicitor of considerable experience, including in dealing with elderly clients and their testamentary wishes” (para 52).  The court noted the time in which the solicitor attended on the deceased to take instructions and that he had met with the deceased alone when both receiving instructions and when she had signed the documents. The Court said that there was no reason not to accept Mr Taylor’s evidence that he would not have included a provision excluding Anita without the express instructions from his client to do so. (para 52-53). The court noted that the solicitor’s experience coupled with the considerable time he spent alone with the deceased allowed the solicitor to form a view regarding the Banks v Goodfellow matters and conclude that she had testamentary capacity. (para 55)

As regards the medical evidence, the court noted that the deceased CT scan provided evidence of dementia, however the primary judge was not offered any evidence that was “conclusive, or even weighty,” (para 58) of the deceased lack of testamentary capacity.

The court noted that the deceased did perform quite poorly on the MMSE test however regarded that the evidence provided by both Dr Barron and Dr Rosenfeld suggested that the tests were of “limited value” (para 59). In particular, the court noted Dr Rosenfeld comments that “the MMSE test  ‘does not provide reliable information in regards to the degree or nature of dementia’ and ‘provides little and sometimes misleading information regarding higher-level cognitive function’”. (para 59).

Having regard to this evidence of the experts, the court was satisfied that the evidence did not constitute significant evidence of testamentary incapacity. (para 61)

The Court expressed the view that Dr Beran’s answer in respect of addressing the first element of Banks and Goodfellow test went no further than to express doubt as to the deceased competence to understand the result of her making such a new will. However, in terms of the third question (in the Banks v Goodfellow test) The Courf noted Dr Beran had said that the deceased was not aware the consequences of her actions however the Court noted that Dr Beran’s views were based on an incomplete picture of the relevant facts (para 63). In particular, Dr Beran appears to have referred to such a finding on the basis of his statement that he had observed a good relationship between the patient and her daughter, Branka. The court, however noted that such an observation did not necessarily provide appropriate foundation for Dr Beran taking the view that the deceased had no reason to reduce Branka’s share. 

The court said:

In these circumstances, Dr Beran’s conclusory evidence cannot be regarded as of any significant weight. It was based on facts of which he was insufficiently apprised and, in interpreting the facts as he thought they were, he was not drawing on his expertise in the field of specialised knowledge. His evidence did not conform with the strictures for expert evidence that Hayden JA identified in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [86] (see also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]). Although there is no charge to the admission of Dr Beran’s conclusory opinions and evidence, the primary judge was correct not to give the opinions any significant weight. As his honour said, in relation to both experts, their opinions are based on facts which were not congruent with his findings (at [201]).

The position is similar in respect to Dr Rosenfeld’s conclusory evidence in his report of 5 June 2007. His evidence, quoted at[43] above, appears to have turned on the absence of any specific reference in the September 2007 well all the deceased previous. The deceased grandchildren by name. Whilst he acknowledged in general terms the significance of Mr Taylor’s evidence, Dr Rosenfeld appears to have assumed, without good reason, that there was no discussion between Mr Taylor and the deceased concerning the grandchildren and, in particular, about the deletion of the contingent gift in favour of Anita. This was however an unwarranted intrusion into the fact-finding function of the court, similar to that which I had described in relation to Dr Beran’s evidence. The primary judge’s acceptance of Mr Taylor’s evidence that he would not have provided in the September 2007 well for the removal of the contingent gift in favour of Anita without specific instructions from the deceased indicates that there was in fact some discussion as Dr Rosenfeld appears to have assumed did not occur. If it occurred, it is difficult to see how Dr Rosenfeld’s reasoning could logically lead to a conclusion that the deceased was unable to consider the claims of her grandchildren to her bounty. As a primary judge said, “the very fact that the deceased made a distinction between Boris’ children and Branka’s child, Anita, in writing her will suggest she did bring reasoning to bear on the question” (at [200]).

At para 65-66 of the judgement.

In concluding the matter, the court said:

My conclusion that the primary judge was correct to give Mr Taylor’s evidence considerable weight on the issue of the deceased testamentary capacity, taken with my conclusion is that the expert medical evidence ought not to be given any significant weight on that issue and that the 2006/7 medical evidence was of only limited significance, leads to the results of the primary judge was correct to find that the deceased had testamentary capacity when she made the September 2007 well. Acceptance of Mr Taylor’s evidence also necessarily requires a conclusion that the deceased knew and approved of the contents of that will. In this regard, His Honour was correct to infer from Mr Taylor’s evidence of practice and his first documents that Mr Taylor spent at least an hour and ½ alone with the deceased on 10 September 2007 taking her instructions for her new will, satisfying himself that she had the capacity to give him those instructions and, it follows, satisfying himself that she knew and approved the contents of the will.

Para 69 of the judgement

In the appeal, the appellant also suggested that Boris’ conduct gave rise to suspicions as to whether the deceased had knowledge and approval of her will. Given the findings of the primary judge (and the Court of Appeal’s agreement with such findings) that the deceased knew and approved the contents of her will, there was no further reason to consider or examine Boris conduct any further.

The appeal was dismissed with costs.

You can read the full case here.

This particular case was a really interesting read. It is clear, from the commentary of the court, the level of detail that is necessary to really understand the weight and value of any evidence where testamentary capacity is questioned. What I found particularly interesting when reviewing the evidence before the court referred to in the judgement was the difference between screening and identifying cognitive impairment that was referenced in the CT scan and MMSE test but how little those two investigations can really evidence the nature and extent of cognitive impairment.

As legal practitioners, this case highlights the importance of the weight of a practitioner’s evidence with regard to not only assessing testamentary capacity but also their general practice in regard to this work. In practice, it can often be comforting to receive a supportive MMSE test, which is often provided in support of a person’s ability to make a Will, however this case does certainly demonstrate that an MMSE (albeit an unsupportive one, in this case) is, in some people’s opinion, of “limited value” in determining the degree and nature of dementia of cognitive function. Perhaps this case also encourages the position that the best medical assessment that can be done is at the time that the Will is made with the assistance of a specialist medical practitioner, well-versed in cognitive function, in collaboration with an expert succession lawyer.

As modern medical technology improves, I suspect we will see an evolution of case law as regards the medical evidence that might weigh in on the question of testamentary capacity.

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