SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: In the Estate of Ruimao Liu deceased

Citation: [2019] ACTSC 49

Hearing Dates: 22, 23 and 24 October 2018

Decision Date: 8 March 2019

Before: McWilliam AsJ

Decision: See [100]

Catchwords: WILLS, & ADMINISTRATION – Administration and Probate Act 1929 (ACT) – – where in advanced stages of cancer executed a will four weeks before death excluding wife and only child – whether testator lacked requisite mental capacity to make the will – whether testator suffering from insane delusion – where onus on person propounding the will to satisfy the court that the testator retained mental powers to the requisite extent – onus not discharged – letters of administration granted to only surviving daughter without security

Legislation Cited: Administration and Probate Act 1929 (ACT) ss 9, 12(1)(b), 24, 49, Schedule 6 Court Procedures Rules 2006 (ACT) rr 3045, 3046 Wills Act 1968 (ACT) s 9

Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Carr v Homersham [2018] NSWCA 65 In Will of Wilson (1897) 23 VLR 197 Re Estate of Griffith; Easter v Griffiths (1995) 217 ALR 284 Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Timbury v Coffee (1941) 66 CLR 277 Walsh v Legge (unreported, Supreme Court of New South Wales Equity Division, Cohen J, 12 March 1997) Watson v Kerridge (1888) 9 LR (NSW) Eq 35 Worth v Clasohm (1952) 86 CLR 439

Parties: Mimi Liu (Applicant) Peter Burns (First Defendant) Wei Qian Burns (Second Defendant)

Representation: Counsel R.J. Arthur (Applicant) D.A. Hassall (First and Second Defendants)

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Solicitors KJB (Applicant) Canberra Lawyers (First and Second Defendants) File Number: PRO 662 of 2016

McWilliam AsJ: 1. This proceeding concerns the estate of Mr Ruimao Liu (the deceased), who died on 12 May 2016. Shortly before he died, the deceased signed a document dated 12 April 2016, the terms of which were repeated and expanded upon in a further document dated 19 April 2016. The documents each purport to be his Last . The deceased had not otherwise previously executed any will. Their effect is essentially to exclude his wife of nearly fifty years and the plaintiff, his only daughter, in whose house he had lived in with his wife for the three years prior to his death, from receiving any benefit under the will.

2. The deceased had been admitted to Calvary Hospital on 28 March 2016, and on 6 April 2016 was diagnosed with advanced lung cancer, with an MRI confirming that the cancer had spread to his brain. He was transferred to Canberra Hospital, ultimately to the Intensive Care Unit, and died on 12 May 2016. The plaintiff, Mimi Liu (Mimi), alleges that at the time her father came to sign each of the documents purporting to be his will, he lacked sufficient mental capacity to make a will. In particular, he was suffering from delusions, which led him to believe that (among other allegations) he was being physically abused by his wife, and had been poorly treated by his daughter.

3. The second defendant, Ms Wei Qian Burns (Wei), is the niece of the deceased and named in each of the April 2016 documents as being responsible for appointing a local solicitor as executor of the deceased’s estate. She nominated her husband, the first defendant, Mr Peter Burns (Peter), as a competent person to be the executor of the deceased’s estate. Given the number of witnesses with the same surname in the proceedings, these reasons refer to the family members by their first names, without intending any disrespect.

4. Neither defendant is expressly a beneficiary under either document, as the deceased’s wishes were that his entire estate should be given to ‘an appropriate foundation/organisation’.

5. Central to the dispute is whether the 12 April 2016 and the 19 April 2016 documents were valid. This depends upon whether the deceased possessed the necessary testamentary capacity at the time he signed them.

6. It was accepted during the hearing that the deceased’s state of mind did not materially change during the week that passed between those two documents being executed, or at least that no additional pertaining solely to the earlier document was required. As a consequence, and as will be seen from a discussion of the evidence below, the validity of the 12 April 2016 document rises or falls with the validity of the 19 April 2016 document. Accordingly, I will refer to the document signed on 19 April 2016 as ‘the Will’, as it was the last in time document executed.

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Relief sought 7. By originating application filed 7 September 2016, the plaintiff seeks an order for the grant of administration of the estate of her father without a will. Such an order would follow the Court finding that neither of the documents signed in April 2016 constituted a valid will.

8. On 22 June 2016, the defendants lodged a caveat, number C235, against any grant of representation to the plaintiff in respect of the deceased’s estate. As a consequence, on 7 September 2016 when the originating application was filed, the plaintiff also filed an application in proceeding seeking to set aside the Caveat, which was then amended on 22 October 2018.

9. On 28 July 2016, the plaintiff also lodged a caveat against a grant of representation to the defendants. Whether the foundation for this caveat remains will also be determined by these proceedings.

10. The applications were heard simultaneously with the same evidence relied upon to found each aspect of the relief sought. The terms of the Will

11. It is perhaps useful to provide the context chronologically and start with the terms of the document signed on 12 April 2016. It contains the following:

I, Liu Riumao, being in ill health but of sound mind, have decided that from today onwards the contacts for my medical treatment bodies (including Canberra Hospital where I am receiving treatment) are QIAN Yin and QIAN Wei (Wei Burns), not LIU Mi. A few days ago when I was in the Calvary hospital, LIU Mi asked me to sign a Power of Attorney document. In that Power of Attorney document, I trusted LIU Mi to be my Executor or guardian in the event that I have become de-capacitated. That signed Power of Attorney document has now become null and void.

After my death, all arrangements will be decided and carried out by my blood relatives in Australia, through consultation with my third sister, LIU Ruilian. LIU Xihe, LIU Mi and LIU Xiaopeng are not to be included. LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object.

I wish my ashes to be spread into the sea, returning to nature.

The Executor of this Will is to be a Canberra-based solicitor or other competent person nominated by QIAN Wei (Wei Burns).

In relation to my personal properties, I have made the following decisions:

1. The apartment in Fuzhou should be sold as soon as possible. 50% of the money from the sale should go to LIU Xihe. 50% of the money from the sale should belong to my estate.

2. All my remaining possessions, including cash, bank deposits, shares in China, my retirement funds/payments etc, should be dealt with by my blood relatives, through consultation with LIU Ruilian. LIU Xihe, LIU Mi, LIU Xiaopeng and their family are not to be included. LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object.

3. My third sister, LIU Ruilian, will have the final say on how my persona properties are to be dealt with. LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object.

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12. The Will contains the following key extracts:

I, LIU Ruimao, although is in ill health, I am of clear and sound mind.

When I was in the Calvary hospital a few weeks ago, LIU Mi asked me to sign a power of Attorney document. In that Power of Attorney document, LIU Mi was listed as my Executor or guardian in the event that I have become incapacitated. That signed Power of Attorney document has now become null and void and I hereby revoke it.

After my death, all arrangements shall be decided by my nephews and nieces in Canberra, through consultation with my third sister, LIU Ruilian, in China. My nephews and nieces in Canberra are: LI, Feng, LI Jing, QIAN Jun, QIAN Wei (Wei Burns) and QIAN Yin. LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object their decisions.

LIU Mi and LIU Xiaopeng, however, shall pay all relevant funeral expenses…

…The Executor of this will is to be a Canberra-based solicitor, or other competent person, nominated by Qian Wei (Wei Burns). LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object.

After taking serious considerations of the following facts that

- I have been the key financial supporter of my family my whole adult life;

- My finance and day-to-day living expenses have been totally separate from that of LIU Xihe’s and LIU Mi’s ever since I arrived in Australia (I have paid rent to LIU Mi, contributed to bill payments to LIU Mi and bought my own food/medications); and

- How inhumanely and cruelly LIU Xihe, LIU Mi and LIU Xiaopeng have being (sic) mistreated me over a long period of time, especially when I have fallen gravely ill at this time.

I have made the following directions:

1. LIU Xihe, LIU Mi and LIU Xiaopeng and their children shall not benefit,financially or otherwise, from my death.

2. The apartment in Fuzhou, China, which is the only jointly-owned property by me and LIU Xihe, shall be sold immediately. 50% of the money from the sale should go to LIU Xihe. 50% of the money from the sale should belong to my estate.

3. My estate shall include the following: all remaining cash after paying appropriate legal fees, my bank deposits, my immigration deposits as requested by the Department of Immigration, my Chinese stock shares and all my retirement entitlements/benefits.

4. All estate shall be donated to appropriate foundation/organisation. I authorise QIAN Wei (Wei Burns), in consultation with my other Canberra-based nephews, nieces and my third sister, LIU Ruilian in China, to undertake liaison work and to finalise the matter in due course.

All above decisions shall be carried out as instructed. LIU Xihe, LIU Mi and LIU Xiaopeng have no right to intervene or object. 13. Each document is written in Chinese but has been translated into English and there is no dispute about the above words being an accurate translation.

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14. It should be noted that although a 50% share of the property in Fuzhou, China was to be given to Xihe Liu, this is because the property was jointly owned. It was not a gift nor a distribution under the Will.

15. In oral argument, the parties canvassed whether the legal position as to joint tenancy in China needed to be established because the defendants submitted that in truth, the 50% share was a distribution under the will and therefore the testator had left something to his wife, which would contradict the plaintiff’s case. However, the proper application of the principles of in China are irrelevant to the dispute. What matters is what the deceased intended by the words he used. It is clear that the deceased did not intend for his wife to benefit at all. The express terms stated in clause 1 of the Will leave nothing to the deceased’s wife, daughter or her family. Relevant legislative provisions

16. The Will was written in the presence of two witnesses, Wei and Mr Jiang, a Justice of the Peace. The Will was also signed by the deceased, Wei and Mr Jiang. Accordingly, the formal requirements for a valid will pursuant to s 9 of the Wills Act 1968 (ACT) (the Act) were met.

17. However, if the Will is not valid due to a lack of testamentary capacity, the Administration and Probate Act 1929 (ACT) (Administration Act) governs the relief sought by the plaintiff. Section 9 confirms the Court’s power to grant administration of the estate of the deceased:

Probate or administration may be granted

(1) The Supreme Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the ACT. 18. The Court may grant administration of an intestate estate to a next of kin of the intestate: s 12(1)(b) of the Administration Act. Under this section, there is no doubt that the plaintiff, as the deceased’s daughter, is a person eligible to be granted administration.

19. The Court may appoint a person to be an administrator of the estate of the deceased, or of any part of the estate, on giving the security (if any) that the Court directs, and may limit the administration as the Court considers appropriate: s 24 of the Administration Act.

20. Under r 3045 of the Court Procedures Rules 2006 (ACT) (Rules), the Court may require an administration bond that the surety will make good, up to the required amount, any loss that anyone interested in the administration of the estate may have because of a breach by the administrator of the administrator’s duties.

21. The plaintiff seeks that if the Court considers it appropriate to grant letters of administration to her, it dispense with the requirement for the payment of any security. Relevant to the Court’s consideration of security will be the identity of the beneficiaries on . Under r 3046 of the Rules, the Court may dispense with the requirement for security in the form of an administration bond if all or any part of the estate passes to the person to whom administration is granted.

22. Through a combination of s 49 and Schedule 6 of the Administration Act, if the deceased is found to have died intestate because of a lack of testamentary capacity,

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then the plaintiff and her mother will become the beneficiaries in the deceased’s estate in proportions determined in accordance with Schedule 6, the precise nature of which is immaterial here. What matters is that part of the estate will pass to the plaintiff. Given that result, the nature of the estate and the fact that the substantial asset has already been dealt with, I am prepared to dispense with the requirement for any security to be paid.

Applicable Legal Principles

23. The starting point is that in order for a will to be valid, a testator must have a sound mind and understanding: see Banks v Goodfellow (1870) LR 5 QB 549 (Banks), where Cockburn J stated at 565 (emphasis added):

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties– that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. 24. Timbury v Coffee (1941) 66 CLR 277 (Timbury) decided to similar effect. Dixon J in Timbury, quoting Hood J in In the Will of Wilson (1897) 23 VLR 197 at 199, stated at 283:

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner. 25. As to what constitutes ‘an insane delusion’, this has further been described as a fixed and incorrigible false belief, out of which the testator cannot be reasoned: Worth v Clasohm (1952) 86 CLR 439 (Worth) at 449; Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Hodges) at 706. Delusion may involve a value judgment where the judgment is so extreme as to defy credibility: Re Estate of Griffith;Easter v Griffiths (1995) 217 ALR 284 (Griffith) at 291 per Gleeson CJ with whom Handley JA agreed.

26. It is the lack of any reasoning that is important – a mere false or mistaken belief is not sufficient to warrant a conclusion that a testator lacked testamentary capacity: Carr v Homersham [2018] NSWCA 65 (Carr) at [14].

27. As submitted by the defendants, one can be mistaken or wrong, even act in a capricious or mean manner, disinheriting a child through taking a wrongful view of his or her conduct, and yet retain the capacity to make a will: see Walsh v Legge (unreported, Supreme Court of New South Wales Equity Division, Cohen J, 12 March 1997). Mere antipathy, albeit unreasonable, towards one who has a claim is to be distinguished from a disorder of the mind, and great care should be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion: Griffith at 290-291.

28. The existence of an insane delusion under which the deceased laboured does not automatically preclude a finding of testamentary capacity if the delusion had no effect upon the will: Carr at [102] per Macfarlan JA (with whom Leeming JA agreed).

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29. That being said, too much attention should not be paid to language such as ‘disorders of the mind’ and ‘insane delusions’: Carr at [6]. A lack of testamentary capacity may be established by a mental disorder which does not involve delusions: Carr at [15] per Basten JA (again, with whom Leeming JA agreed). It is not necessary to couch the evidence in terms of a ‘delusion’ to characterise a person as lacking mental capacity: Griffith per Gleeson CJ at 292 (with whom Handley JA agreed). The focus is really on the extent to which there was an interference with the testator’s normal capacity for decision-making or whether the testator was able to consider and give effect to the claims upon his bounty; that is, to ‘comprehend and appreciate the claims to which he ought to give effect’: Carr at [101], citing Banks at 565; see also Griffith at 291.

30. Evidence relevant to establishing a lack of capacity may include the exclusion of persons naturally having a claim on the testator’s bounty and extreme age or sickness: Hodges at 706. Incapacity will only be established if it appears that age or illness has so affected the testator’s mental faculties as to make them unequal to the task of disposing of their property: Bailey v Bailey (1924) 34 CLR 558 (Bailey) at 570-571; Worth at 453.

Onus

31. A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding: Bailey at 570; Hodges at 706. Indeed, it is prima facie evidence of testamentary capacity: Bull v Fulton [1942] 66 CLR 295 (Bull) at 343.

32. A party seeking to impeach the will then bears the evidential burden of proving that the testator did not have testamentary capacity: Worth at 453.

33. Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the propounder of the will, the burden of satisfying the conscience of the court that the testator had such capacity at the relevant time: Griffith at 289; Bailey at 570.

34. Similarly, if it has been shown the testator suffered from delusions, the onus is on the propounder of the will to prove the delusions were not in existence at the relevant time, or alternatively, that they did not affect the will: Watson v Kerridge (1888) 9 LR (NSW) Eq 35; Bull at 342.

35. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testator/testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth at 453.

Evidence 36. The evidence set out below is what I consider to be that which is most relevant to the question of assessing the deceased’s testamentary capacity. It is not intended to be a full recitation of the evidence before the Court.

Plaintiff’s evidence

37. Mimi affirmed three affidavits in the proceedings dated 7 September 2016, 12 March 2018 and 18 October 2018, and was cross-examined. I have accepted her as a credible witness, having seen her in the witness box and having had regard to the contemporaneous medical records and observations of doctors and nursing staff,

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discussed separately below, which corroborate most of her evidence regarding those observations she made of her father. Mimi deposes to her parents living with her since they arrived in Australia in June 2013. The deceased and his wife had long term health issues. Mimi’s evidence in relation to her mother was that she has a weak heart and has suffered from a bad back since 2008. She has limited mobility, is unable to lift heavy objects and has previously required the use of a wheelchair.

38. In relation to her father, the deceased, Mimi’s observation was that he started to display erratic demeanours and behaviours in November 2015. He became physically and verbally abusive towards her mother. On 6 March 2016, Mimi deposes to having received a telephone call from her mother while she was out shopping. Her mother told her she had been punched and kicked and dragged to the ground by the deceased. I accept that this was what Mimi was told. It is not necessary to find whether that conduct occurred as a fact.

39. On 28 March 2016, Mimi called an ambulance because her father appeared very unwell. He was unable to tell the ambulance officer what month it was. He broke out crying and then started laughing, which Mimi records was very out of character for her father.

40. Mimi visited her father twice daily while he was in Calvary Hospital. The deceased was transferred to Canberra Hospital on 6 April 2016. Mimi then deposes to the deceased being diagnosed with advanced lung cancer and an MRI scan showing that the cancer may have spread to the deceased’s brain by that date.

41. On 14 April 2016, the deceased was transferred to the intensive care unit. While he was there, Mimi asked the doctor in that unit why her father was getting more and more confused over the past few days. The doctor told her the deceased’s cancer was quite advanced and combined with the antibiotics used to treat his chest infection, it might affect his state of mind.

42. On 19 April 2016, Mimi refers to her father talking nonsense when she was visiting him, saying things like, “I see my father – he is just like Jesus”. Mimi’s grandfather died before she was born. Mimi also records her father as saying, “You must wrap up the money for Ma Qian properly – all of your cousins have seen the money was not wrapped up properly”. This was a comment that made no sense to Mimi.

John Liu

43. Mimi’s husband, Mr John Liu also gave evidence and was briefly cross-examined, with the focus of his evidence being whether Mr Liu treated the deceased badly. He has denied that there was any mistreatment of the deceased and there was nothing before the Court to suggest that there was mistreatment, other than the deceased’s own opinion as set out in the documents in dispute.

44. I accept Mr Liu’s evidence.

Xihe Liu – wife of deceased

45. An affidavit of Dr Xihe Liu (Xihe) affirmed on 12 March 2018 was read, and she was cross-examined. Although the witness I observed in the box was two years older when giving evidence about events that occurred in 2016, she was a diminutive figure, obviously frail and with mobility restrictions. Having seen her, it is hard to believe that such a woman would have been able to inflict violence on any person. I accept her

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evidence as credible, and although much of her evidence related to events when she and the deceased were alone, it is consistent with the affidavit evidence of Mimi and plausible in its timing and observations of altered behaviour when compared with the deceased’s medical history.

46. Xihe’s evidence was that she was a doctor of Chinese medicine in China, later working as an Associate Professor at the Fujian University of Chinese Medicine. She had retired in March 2000 but undertook part-time work in a local health facility. She deposes to her husband being diagnosed with liver cancer in 2012. After surgery in China, Xihe and the deceased moved to Australia expressly for the purpose of being with their daughter for her support.

47. Xihe deposes to the care given to her and the deceased by Mimi and her husband John. They were taken to appointments, and went on outings and holidays with their daughter and her family. They were never asked to contribute to the rent or bills. However, they occasionally gave Mimi money to help with household expenses.

48. Xihe states that prior to September 2015, her husband had a short temper but was never violent to her or anyone else. In late 2015 he started to behave differently, and became abusive verbally and physically. On one occasion in September 2015, the deceased tried to strike her across the face but she managed to turn her head and the blow landed on her back. Two weeks later, she was sweeping the floor in the kitchen and making a bit of noise while the deceased was trying to sleep. He grabbed a dustpan and tried to break the handle. When Xihe tried to take the dustpan from him, he lashed out and karate chopped Xihe across the back of her neck. Xihe went upstairs to get away and her husband followed her, saying “I warned you. Today I beat you. Next time I might kill you”.

49. Similar examples are given as to other incidents, including an incident where the deceased was verbally aggressive and abusive towards her at the surgery of their doctor, Dr Liu, discussed below.

50. On 25 March 2016, Xihe observed her husband behaving oddly, saying, “I see 7 holes in my stomach” and “I see a big head hanging out of the window”.

Dr Liu – general practitioner

51. An affidavit was affirmed on 8 March 2018 by the deceased’s treating general practitioner, Dr Ying Liu. By coincidence she has the same surname as the plaintiff but is not related to her. She was independent, professional, and credible as a witness. Dr Liu’s evidence was that she had been the general practitioner treating the deceased and his wife for years and that they attended the medical centre together for their appointments. Her evidence was read more for the purpose of her personal observations, rather than as an independent expert providing opinions.

52. On 17 March 2016, she observed a clear change in the deceased’s personality, with his aggression towards his wife and angry outburst being totally out of character with the man she had known to be dominant but quite amiable. Dr Liu deposes to it being indicated to her during this consultation (presumably by Xihe, who was in attendance) that: the deceased had been having a lot of mood fluctuations, was getting angry a lot, and was verbally very aggressive towards his family, especially his wife (even in the clinic). The deceased had told Dr Liu he was very unhappy all the time, and felt stressed without any reason.

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53. On 28 March 2016, Dr Liu was notified that the deceased had been admitted to hospital. She had reviewed the medical notes forwarded to her by the Hospital. They record a provisional diagnosis upon admission of ‘confusion’. On 6 April 2016, when the deceased was transferred to the Acute Hospital, the description of his initial presenting symptoms, as per the hospital medical notes, was as follows:

Mr Ruimao Liu is a 75 yo gentleman presented to hospital with worsening lethargy, confusion & upper limb oedema

- Limited English, history taken from daughter (Mimi)

- On 7th March 2016, daughter noticed his upper limbs swollen

- Went to see GP on 17th march who prescribed frusemide & potassium for his upper limb swelling. He also started gliclazide for his BSL

- Returned to GP on 23rd March who commenced Augmentin for ?chest infection, his perifpheral oedema was improving

- Family also expresses changes in personality over past 2/12 where he started expressing that everyone has become ‘evil’ and becoming more violent towards family members. 54. I accept Dr Liu’s evidence.

Ms Wei Gou – family friend

55. The final affidavit read by the plaintiff was that of Ms Wei Guo, affirmed 24 April 2018. Ms Guo is a close family friend who is now 62 years of age. She grew up with the Liu family before migrating to Australia in 1999. She called Xihe and the deceased her ‘aunty’ and ‘uncle’. She was in regular contact with the Liu family, and escorted Xihe and the deceased from China to Australia when they moved in 2013.

56. Ms Guo also noticed a change in the deceased’s behaviour when he and Xihe came to stay with her in Sydney for a week in September 2015. Her observation was that he seemed very moody and paranoid. When she was driving he began complaining in a loud voice when she gave way to two cars. He had never acted in that way before. She heard the deceased say to Xihe while they were staying with her, “I am cursed by you, you should die sooner and leave me at ease.”

57. One morning at breakfast she observed the deceased try to punch Xihe and she managed to stop him. She had never seen him trying to hit anyone. Once at the dinner table that week, the deceased said he was “going to burn Mimi’s house down in the middle of the night while everyone was asleep”.

58. When the deceased was hospitalised, she went to visit him in mid-April and he did not recognise her.

59. Ms Guo’s observation was that over the whole time she had known the deceased and Xihe, she had witnessed them being together in a loving and caring relationship and very close. From September 2015, she felt that he was no longer the ‘uncle’ that she had known for 47 years.

60. Ms Guo was also cross-examined and having observed her, I accept that she was a credible witness and accept the evidence above as to what she observed as having occurred.

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Medical Notes

61. There are repeated references to language barriers in the nurses’ notes. At best, they were able to describe the patient as ‘alert and orientated’ and were able to understand whether or not he was in pain. Contrary to a submission made by the defendants, this very basic level of understanding speaks more to whether the deceased was awake and comfortable during a particular nurse’s shift. It says nothing about the relevant state of mind of the deceased as there was plainly very little oral communication with him.

62. The nurses relied occasionally upon telephone interpreter services, or otherwise on family members for detailed communications with the deceased, although this did not apparently pose too much of a difficulty in terms of caring for the deceased, as almost every entry records that family was in attendance throughout the shift.

63. The notes repeatedly refer to the deceased as sleeping for large periods, and being asleep when meals were served. They also record the numerous medications that were being administered to the deceased throughout the day, including oxygen and chemotherapy medication (dexamethasone), as well as a number of other types of medication used to treat different illnesses suffered by the deceased. He was clearly a very unwell man by April 2016.

64. On 14 April 2016, the deceased was transferred to the Intensive Care Unit at Calvary Hospital. On 19 April 2016, at 10.40am the deceased was recorded as being agitated after a physiotherapy session.

65. On 20 April 2016 (the day after the Will was executed), the Hospital notes record Mimi’s concern that the deceased was hallucinating. Examples given include seeing his father as Jesus, referring to non-existent money and forgetting that he has had visitors.

66. Although a cautious approach might be taken when considering the description of the deceased through the observations of Mimi, it must be remembered that there is nothing to suggest that at the time she was communicating with the nurses in April she had any idea what her father had written in his Will.

67. On 21 April 2016, there is a reference to the following: ‘nursing staff noted from niece that pt has been hallucinating over recent days – visual hallucinations’. During the hearing there was some debate over the poor handwriting and whether the word niece could have been ‘note’. However, I was satisfied that the word was niece, as it appeared to me that the writer had first started writing ‘neice’, then seeing that was the incorrect spelling, had written the correct ‘ie’ spelling over the top. Neither of the nieces who gave evidence were cross-examined on this part of the medical notes.

68. On 23 April 2016, the nursing records state:

…Pt slept on & off during night, quite confused at start; calling out & possibly hallucinating – pointing at empty space & calling out “danger”, then pointing at television & calling “danger”, unplugged & taped cord up to attempt to appease pt; settled soon after this… 69. On 25 April 2016, the deceased was recorded as being non-compliant at times. By 26 April 2016, the deceased was recorded as being ‘not compliant 100% of time’.

70. By 27 April 2016, the notes of the nursing staff record that the deceased was refusing oral medications and no one, not even the family that were in attendance, was able to

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convince the deceased to take his medication. The deceased refused to explain why he did not want to swallow the medication. Yet the following day, whatever reason the deceased had for not taking his medication had evaporated, as the notes record all medications were taken without any apparent concern.

Defendants’ evidence

71. The defendants’ evidence comprised firstly of two affidavits affirmed by the second defendant, Wei, on 3 October 2018 and 19 October 2019. She deposes to having received a call in mid-March 2016 from the deceased, who asked her about how wills worked in Australia. The deceased said to her that he did not want to leave any of his estate to the people he was living with. He said that this was due to the mistreatment he had received from them since he came to Australia.

72. Shortly after that conversation, Wei travelled overseas until 13 April 2016. Upon her return, she immediately visited the deceased. She could see that he was physically very weak, but in her observation he appeared to be lucid and sharp. She asked the deceased what had happened to him. He told her that during an argument with his wife, she kicked him in his groin and sat on his body and hit his face when he fell down to the floor. The deceased told her that he did not recover from this incident and spent more than weeks on a couch before being admitted to hospital.

73. Wei deposes to the deceased telling her again on 14 April 2016 about how badly he was treated by his wife, his daughter and his son-in-law when he lived in his daughter’s house.

74. In relation to the Will, after several drafts of the document between 14 and 18 April 2016, the deceased told her that he was happy with the contents and wished to sign it.

75. On 19 April 2016, when the deceased executed the Will before her, Wei’s evidence was that he appeared to be lucid and alert. He read both the Chinese and English copies of the Will. He was careful to read every word.

76. The defendants also relied upon the affidavit of Wei’s sister and niece of the deceased, Ms Yin Qian (Yin), affirmed on 12 October 2017. Yin was with the deceased on 12 April 2016 when he signed the first document purporting to be his Will, which was witnessed by Mr Neale Andrew Roberts, a registered minister of religion. She was also with Wei at the execution of the Will.

77. Part of Yin’s affidavit evidence was that she had visited the deceased on 25 March 2016 and seen him slumped on the couch. His limbs were swollen and he was crying like a child when he saw her. She was shocked to see such a sad scene.

78. The deceased asked her to make a will. He told her that Mimi had refused to help him make a will. Yin states that the deceased said to her he had discussed making a will with Mimi and he had said to her, “why do you and Xihe Liu think that you deserve any of my money and estate while you are treating me worse than an animal?”

79. Yin described the steps taken in relation to the execution of the Will. In April 2016, she sat down with the deceased in his hospital room. He dictated the words in Chinese and she wrote them down. He read the drafts assiduously and asked for changes to the drafts many times. After 14 April 2016, the deceased wanted to make further changes. On 18 April 2016, the deceased read what ultimately became the Will and informed Yin that he was happy with it.

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80. Her sister and a Justice of the Peace then came to witness the deceased’s signature on the Will.

81. Both Wei and Yin were cross examined and I have accepted their evidence to the extent that it reflects what the deceased told them about his treatment and their own honest perceptions and observations of the deceased. As the deceased saw his nieces separately to his wife and daughter, there were no direct factual conflicts to resolve.

82. Also before the Court was an affidavit of Mr Deren Jiang affirmed on 20 October 2017. Mr Jian was the Justice of the Peace who attended Canberra Hospital on 19 April 2016 to witness the Will. His evidence was unchallenged.

Findings on testamentary capacity

83. When one steps back and views the evidence referred to above in its totality, the picture created is of a man in rapidly deteriorating health over March – April 2016, which affected his mood, behaviour and his mind. I have no difficulty finding that the deceased lacked the testamentary capacity to execute a will over the period 12 – 19 April 2016.

84. First, there is the fact that the deceased was elderly and in the advanced stages of cancer, including metastasis in his brain, diagnosed on 6 April 2016.

85. Second, the evidence of Dr Liu set out above supports a finding of altered behaviour shortly prior to April 2016, the cause of which may have been medical.

86. Third, the medical notes on 20 April 2016 record the daughter’s observations of her father hallucinating and there is a subsequent reference on 21 April 2016 to the deceased hallucinating ‘over recent days’.

87. Fourth, the medical notes also record irrational behaviour in the deceased refusing to take his medication without explanation or reason despite his family trying to persuade him otherwise, followed the next day by the deceased taking his medication without incident. Having read the medical notes closely, my view is that they are consistent with the deceased periodically moving in and out of being of sound mind over the material time.

88. Fifth, the evidence of Xihe as to the changes she noticed in her husband of fifty years is significant. A man who for that length of time had been a caring husband, albeit with a short temper at times, and who suddenly starts behaving violently towards his wife and threatening to kill her and burn down his daughter’s house, is a person whose mind has clearly been affected by something, whether it be cancer spreading to the brain, the effects of medication, or some other illness.

89. Sixth, the evidence of Xihe and Dr Liu is supported by the observations of Mimi, all of which are consistent with a conclusion that the deceased was a man who was physically very ill and this affected his mental capacity.

90. Seventh, Yin’s evidence that she saw the deceased crying like a child when he saw her may be seen as consistent with Mimi’s evidence two days later that her father spontaneously started crying. Such behaviour of itself may not be determinative, but together with the other observations, it appears that the deceased had at times lost the ability to control his emotions.

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91. Eighth, there is a clear illogicality in a husband disinheriting his wife of almost fifty years and his only daughter (with whom he moved to Australia to live, and who cared for both the deceased and his wife during their time together in Canberra). There was no evidence whatsoever that for the remainder of her life she had been anything other than a loving and dutiful daughter. She was mentioned in the medical notes as being at the hospital almost every day, bringing her father food because he did not like hospital food.

92. Ninth, the lack of any rational foundation for the deceased’s view of his treatment by his daughter is highlighted by the deceased’s decision as to who should benefit from his estate if not his daughter – an ‘appropriate foundation/organisation’. The fact that the deceased was either unwilling or unable to name even the type of institution that he wished to benefit is a further indicator of a lack of sound mind, memory and understanding, although I give that matter less weight than the direct observations of the deceased and what is recorded in the medical notes. I have also refrained from giving any attention to whether the uncertainty about the identity of the recipient of such a gift would have resulted in the gift failing and the Will resulting in intestacy in any event, as the parties chose not to make that argument before the Court.

93. Tenth, while I have accepted that both Wei and Yin may have genuinely considered the deceased to be communicating in a lucid manner when they saw and spoke with him, neither witness was privy to the full history of what the deceased was saying and doing most critically in March/April 2016, and the strength of their evidence is totally dependent upon what the deceased was telling them was the situation, as opposed to what may have been the reality. Neither niece was in a position of sufficient familiarity vis-à-vis the history of the relationship between the deceased, his daughter and his wife to be able to know whether there was such a behavioural shift in the deceased as to demonstrate that the cancer had affected his mind.

94. Accordingly, I am not satisfied that the deceased had the requisite mental capacity to execute a will, notwithstanding that he may have appeared lucid to the two nieces at the time they witnessed the deceased signing documents on 12 and 19 April 2016.

95. It is also clear that, although it is strictly unnecessary to make such a finding, the lack of capacity was the product of an insane delusion, particularly given other hallucinations over precisely the period under consideration, such as that everyone was becoming ‘evil’. There was no evidence that anyone tried to reason the deceased out of his views, but the resoluteness with which the deceased stated his belief repeatedly in the 12 April document and the Will permits the drawing of an inference that the deceased’s belief was very much fixed.

96. The delusion or lack of requisite mental capacity had a direct effect on the Will. This is because the deceased expressly recorded his view about his wife and daughter in the Will as the reason why he was making the decision to leave them nothing.

97. For these reasons, the Will does not represent the wishes of a man unaffected by a disorder of the mind. I am not satisfied that in April 2016, the deceased was of sound mind, memory and understanding. By 12 April 2016, the deceased’s sense of what was right and his exercise of natural faculties had been perverted apparently by the insidious disease that caused his death four weeks later. The Will is invalid as is the 12 April 2016 document, and the estate should be distributed according to the principles upon intestacy.

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Costs

98. Given the nature of the case, and the lack of any suggestion that the defendants were unreasonable in defending the case, it is just that all parties receive their costs on an indemnity basis out of the estate. Conclusion and orders

99. Accordingly, the relief sought by the plaintiff should be granted.

100. The orders of the Court will be:

1. Caveat number C235 against any grant of representation to the plaintiff in respect of the estate of the late Ruimao Liu is set aside.

2. Letters of administration without a will are granted to Mimi Liu in respect of the estate of the late Ruimao Liu.

3. The parties’ costs of the proceedings are to be borne by the estate on an indemnity basis.

I certify that the preceding one-hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: 8 March 2019

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