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Supreme Court of New South Wales |
COURT
IN THE SUPREME COURT OF NEW SOUTH WALES
COURT OF APPEAL
HANDLEY(1), POWELL(2) AND COLE(3) JJA
HRNG
SYDNEY, 3 March 1995
#DATE
23:8:1995
#ADD 17:10:1995
Counsel for the Appellant: D M J Bennett QC and
P P O'Loughlin
Solicitors for the Appellant: Stewart Levitt and Co.
Counsel for the Respondent: A Emmett
QC and
J Sexton
Solicitors for the Respondent: Lane and Lane
ORDER
Appeal
dismissed with costs
JUDGE1
HANDLEY JA I agree with Cole JA.
JUDGE2
POWELL JA I have read, in draft, the Judgment which has been
prepared by Cole
JA, with which Judgment I understand Handley JA to agree.
2. Although I agree that Bryson J did not err when
he held that the
Appellants had failed to establish that the deceased had testamentary capacity
at the time when she executed her
Will - it following that the Appeal should
be dismissed with costs - there are some passages - with which I am unable to
agree -
in the Judgment which was delivered by Bryson J and in the Judgment
which has been prepared by Cole JA which, with the greatest respect
to their
Honours, appear to me to evidence some confusion as to the ultimate question
which the Court is required to determine in
a case such as this was, and as to
the facts which, if found, would justify the Court in giving a negative answer
to that question,
and, as well, a regrettable looseness of language, or a
failure fully to apprehend what is involved in some of the concepts which
commonly arise for consideration in this area of the law.
3. As I sought to record in Re Hodges: Shorter v Hodges ((1) (1988) 14 NSWLR
698, 704-707) (see also Public Trustee v. Farrell ((2) Powell J 22nd March
1989 (unreported)); Permanent Trustee Co. Limited v McDermid
((3) Powell A
25th September 1991 (unreported)), although the evidentiary onus may vary from
time to time during the trial, he who
- as the Appellants did - in a case such
as this was, propounds a will, at all times bears the ultimate onus of
establishing that,
at the time of his - or her - executing the will, the
testator - or testatrix - possessed testamentary capacity - or, in the
language
of an earlier age, was of sound mind, memory and understanding,- the
ultimate question is not whether, at that time, the testator
- or testatrix -
suffered delusions, or "insane delusions" - a phrase which, in the light of
modern medical knowledge, is tautologous
- or even delusions, whether insane
or not - but, to talk of a delusion which is not "insane", involves a
contradiction in terms
- which delusions have affected the dispositions - or
lack of them - in a will.
4. Although what must be established in order
that the Court might find that,
at the relevant time, the testator - or testatrix - had testamentary capacity
has been expressed
in varying forms, and in differing language, over the
years, all formulations seem agreed that testamentary capacity encompasses
the
following concepts: -
1. that the testator - or testatrix - is aware, and appreciates the
significance, of the act in the
law which he - or she - is about to embark
upon;
2. that the testator - or testatrix - is aware, at least in general terms,
of
the nature, and extent, and value, of the estate over which he - or she -
has a disposing power;
3. that the testator - or testatrix
- is aware of those who might reasonably
be thought to have a claim upon his - or her - testamentary bounty, and the
basis for, and
nature of, the claims of such persons;
4. that the testator - or testatrix - has the ability to evaluate, and to
discriminate
between, the respective strengths of the claims of such persons.
5. What I have just written leads me to think that it is desirable
that I
should next note:-
1. since testamentary capacity requires that the testator - or testatrix -
not suffer from any condition
which has detrimentally affected his - or her -
consciousness or sense of orientation or has brought about disturbances to his
-
or her - intelligence, cognition, thought content and thought processes,
judgment and the like, the causes of lack of testamentary
capacity are not
limited to "mental illness" (or psychosis) in the strict sense, but may extend
to any form of "mental disorder",
howsoever caused, and whether permanent,
intermittent or transient, so long as, at the relevant time, it operates to
affect the testator's
- or testatrix' - mental processes in relation to one,
or more, of the four matters which need to exist in order that testamentary
capacity be shown;
2. although it seems now to be thought that further research will ultimately
demonstrate that all forms of
"mental illness" or "mental disorder" are, if
not organic in origin, at least subject to organic influences - so that the
distinction
formerly drawn between "organic" and "functional" "mental
illnesses" and "mental disorders" - will no longer be maintainable - some
such
illnesses and disorders - as, for example, deterioration in higher
intellectual function following trauma (frontal lobe damage),
and "senile
dementia" (more recently called "organic brain syndrome", and more recently
still called "multi-infarct dementia", and
even "senile dementia (Alzheimer's
type))" - "dementia" indicates a state involving at least a degree of
confusion and disorientation
- are accepted as being of an organic nature -
such conditions, which may, but need not, be attended by psychosis, if not as
"senile
dementia" is - progressive, are, nonetheless, irreversible;
3. other conditions, as, for example, delirium - which may be caused
by
illness, or excessive consumption of alcohol - or alcohol induced psychosis,
although organic in origin, or organically influenced,
may be transient, or,
if appropriately treated - in the case of delirium tremens, or alcoholic
induced psychosis, by the administration
of minor tranquillisers, such as
Chordiazepoxide ("Librium"), and by the provision of a high-calorie, high
carbohydrate, diet supplemented
by multivitamins - may be reversed;
4. other conditions, such as one or other of the forms of psychosis
"psychosis" is a generic
term indicating a specialised "mental illness",
particularly one without a demonstrable organic cause - may occur only once,
or -
as frequently occurs in cases of schizophrenia, and bipolar affective
disorder (until recently called "manic-depressive psychosis")
- may be
episodic in nature, with florid episodes alternating with periods of apparent
remission when the underlying illness is quiescent,
or - as is often the case
when a bi-polar affective disorder manifests itself, when the patient's mood
swings from hypermania to
major depression - cyclical in nature;
5. most psychoses may be controlled by the administration of major
tranquillisers, as for
example Chlorpromazine ("Thorazine"), Trifluorperazine
("Stelazine") and Haloperidol ("Haldol" or "Serenace") or their effects
ameliorated
by the administration of other drugs, as, for example, lithium
carbonate, which is used to help control mood swings in cases of bi-polar
affective disorder however, in the event that the patient discontinues his -
or her - medication, the underlying illness usually
resurfaces within a short
time;
6. since so much stress is, in the Judgment delivered by Bryson J, and in
the Judgment which has
been prepared by Cole JA, upon the supposed need - or
lack of it - in order that lack of testamentary capacity be established, for
it to be shown that the deceased suffered from "insane delusions", the
following passages from Kaplan and Saddock: Modern Synopsis
of Comprehensive
Textbook of Psychiatry III (3 Ed 1983 Reprint) (The "Comprehensive Textbook"
being the American Psychiatric Association's
Diagnostic and Statistical Manual
of Mental Disorders 3 Ed ("DSM 3") an almost universally used psychiatric
textbook) should be noted
(at p. 237): -
"A delusion is a false belief that arises without appropriate
external stimulation, and that is maintained
unshakeably in
the fact of reason. Furthermore, the belief held is not one
ordinarily shared by other members of the patient's
sociocultural and educational group; for example, it is not
a commonly believed superstition or a religious or political
conviction. Delusions are pathognomonic of the psychoses.
They occur most frequently in schizophrenia, but they can
be
observed in all psychotic states, including those of organic
origin."
- the word "pathognomonic" meaning "characteristic of
a disease,
distinguishing it from other diseases" - and, under the title "Schizophrenia-
Clinical Features" (at p.311):
"Cognitive
Disorders
Delusions: By definition, delusions are false ideas that cannot
be corrected by reasoning, and that are idiosyncratic
for the
patient that is, not part of his cultural environment. They are
among the common symptoms of schizophrenia.
Most frequent are delusions of persecution, which are the key
symptom in the paranoid type of schizophrenia. The conviction
of being controlled by some unseen mysterious power that
exercises its influence from a distance is almost pathognomonic
for schizophrenia. It occurs in most, if not all, schizophrenics
at one time or another, and for many it is a daily experience."
Two things, as it seems to me, follow from these passages, they being, as I
have earlier observed:
a. the phrase "insane delusions"
is tautologous;
b. to talk of delusions not being insane is to indulge in a
contradiction in terms.
7. the ultimate onus
of establishing testamentary capacity at all times
lying on the person propound the will, the person who opposes the will being
admitted
to Probate is under no obligation to lead any evidence whatsoever,
and, still less, to establish that the testator - or testatrix
- in fact
lacked testamentary capacity and the particular cause of that incapacity; if,
at the end of the hearing the trial judge
is not satisfied, on the balance of
probabilities, that the testator - or testatrix - had testamentary capacity,
the defendant is
entitled to an order that proceedings be dismissed.
6. The simple answer to the submissions advanced on behalf of the Appellants
on the hearing of this Appeal is that, as Bryson J, for reasons which to my
mind seem to have been amply justified, was not satisfied,
on the balance of
probabilities, that, at the time of executing her Will, the deceased had
testamentary capacity, the Will was not
entitled to be admitted to Probate.
7. I agree that the Appeal should be dismissed with costs.
JUDGE3
COLE JA This is an appeal
from a judgment of Bryson J who granted probate of
the will of the late Ramza Eugenie Crichton to John Crichton and Neil
Crichton.
The will in respect of which probate was granted was dated 24 August
1988. His Honour refused to grant probate of two later wills
dated 14 November
1990 and 26 March 1991 to George Thomas Shaw in respect of the former and to
George Thomas Shaw and Leila Shaw
in respect of the latter, they being named
respectively as executors in those two wills. His Honour found that the
deceased lacked
testamentary capacity at the time when the last two wills were
made.
2. By the 1988 will a house at 10 Alison Street, Lane Cove
was bequeathed to
Mr Michael Galieh, a nephew of the executrix, a house at 83 Dalrymple Avenue,
Chatswood was bequeathed to Mr John
Crichton, and the balance of the estate
was divided amongst twelve charities and nine relations and other persons.
3. Under the
1990 will Mr Galieh received the Lane Cove house with the
remainder of the Estate going to Mr Shaw. Under the 1991 will the totality
of
the Estate was bequeathed to Mr Shaw.
4. The two respondents to whom probate was granted are the nephew and brother
of the
deceased's late husband. Mr Galieh is a cousin, at some remove, of the
testatrix. Mr and Mrs Shaw had no familial relationship with
the deceased.
5. The deceased met Mr Shaw in late 1986 when he called upon the deceased
seeking to sell her investments in Manchester
Unity. She had been widowed in
approximately 1978 and lived alone in a house in Chatswood. Having been born
in 1917, she was then
69 years of age. She was 75 years old when she died on 8
July 1992. His Honour found the following:
"In her widowhood from 1970
(sic 1978) the deceased for many
years lived in good circumstances. She had ample resources, far
more than her needs in her
manner of life, and for a long time
she had no difficulty in maintaining independent life and
managing her affairs and daily
living, living alone in her house
at Chatswood. Contact with Mr John Crichton and his wife, which
earlier had not been intense,
became more frequent from 1988
onwards, and Mr John Crichton with his wife's assistance from
then on was in the position
of being the relative she depended
on for practical affairs, including some fairly simple matters,
not a great burden to
him, in the management of her investments
and finances, and also small practical matters relating to the
maintenance of her
house and its surrounds, cutting grass and
so forth.
By the end of 1989 the testatrix' circumstances in which she
lived
alone in the house at Chatswood were coming to seem to
some others (but not to her) as unsuitable and not to her
advantage.
She began to show sign of diminishing competence
in her management of daily life, personal care and grooming,
and to exhibit
eccentricities of behaviour. Mrs Crichton came
under the attention of the Geriatric and Rehabilitation Unit
at the Royal
North Shore Hospital in February 1990, when she
was referred to that unit by Dr Ross Smith who was concerned to
see whether
it was suitable for her to be living alone. She was
seen several times by nursing and social work staff, in
February, April,
May and August 1990, and although she appeared
to need assistance and refused services on the last occasion in
August, there
was no active intervention at that time. By the
second half of 1990 she was, in my finding, obviously to any
reasonable observer
a person showing marked signs of inadequate
and deteriorating capacity for management of life and affairs,
living alone in
unsuitable circumstances. Her house had no
suitable lavatory accommodation; the toilet was outside the main
structure. She
kept a large dog in the house; no lady's lap-dog
but an Alsatian which slept on the end of her bed. Her house
was poorly
cared for, and the interior was unclean and foul
smelling. These findings are based on witnesses whom I regard
as reliable;
witnesses who described the circumstances otherwise
failed to perceive or to report the realities of her situation.
She
had an objectively obvious need for assistance in daily
living, either by domiciliary and nursing care in her home or
by
moving to a hostel or nursing home where such care would be
available. Given her ample resources, she would have had no
difficulty
whatever in paying for such assistance as she needed,
and she could have obtained it without any active measures of
her own
by yielding to assistance readily available either
through Mr John Crichton and his wife, or through her General
Practitioner
and the Royal North Shore Hospital's Rehabilitation
and Geriatric Service.
The testatrix' brother Mr Alf Galieh died on
22 July 1990. This
event had a profound and adverse emotional effect on her. Among
other things, her reasonable expectations
about the dispositions
in her brother's will were defeated, as he made a will leaving
a large estate, it would seem worth
well over $1 million, to a
real estate agent in the district in which he lived, and made no
disposition in favour of the
testatrix or any other relative.
These dispositions obviously needed to be challenged in
litigation, and through the agency
of Mr John Crichton she
engaged a solicitor Mr Bushby who set about preparing probate
proceedings. She made some odd and
confused statements about her
brother's estate, what had happened to it and dispositions she
had made of benefits under it,
and when of course the need
presented itself to raise money for the proposed litigation she
told Mr Bushby that Mr Crichton
would have to finance it. The
subject of raising and paying over money for the litigation was
difficult for her, in an irrational
way.
By late 1990 the testatrix perceived that she had a need to have
somebody take over and manage her affairs. She did
not ask Mr
John Crichton to do so, although she asked an officer of Legacy
and an officer of the Commonwealth Bank to do
so; these people
were not altogether appropriate persons to take over her
affairs, while Mr John Crichton was readily to
hand and in
frequent contact with her, as he has been helping her for years
and was a relative to whom she had already given
benefits. He
was obviously a suitable person to give such assistance, but she
did not perceive this. In the presence of a
very pressing need
for assistance the testatrix was unable to see the glaringly
obvious way to go about things.
In
about October or November 1990, not long before executing the
will of 14 November 1990 the testatrix put her business and
financial affairs and indeed her whole life and her physical
person in the care and control of the first plaintiff Mr George
Shaw, and in association with him of his wife the second
plaintiff and of his family. She gave Mr George Shaw a general
power of attorney dated 12 November 1990. She retained Mr
Newman, a solicitor introduced to her by and closely associated
with Mr George Shaw, for whom Mr Newman had acted and continued
to act. From then on and for the rest of her life, the testatrix
placed herself, her assets and her person effectively in the
entire control of the plaintiffs, and abdicated management of
her own life in their favour. This was a markedly strange and
eccentric thing for her to do, and the large benefits given
to
Mr Shaw in the will of November 1990 and the even larger
benefits, exclusive of an others in the will of March 1991 are
expressions of this abdication.
The circumstances in which the plaintiffs obtained ascendancy
over the testatrix' mind
and affairs have not been explained in
a satisfactory way. They themselves were markedly unsatisfactory
witnesses, who had
much to explain and made no real progress in
explaining in a probable way their own behaviour or the
behaviour of the testatrix.
From about November 1990 they in
effect took over her life, managing her banking, her investments
and her household, giving
her all assistance in acts of daily
living, and enabling her to live in circumstances which she
liked, but which were obviously
unsuitable to her, in her own
home, incontinent and bewildered, with her outside toilet and
her dog, and engaging in strange
transactions in which in all
rationality she would not have engaged. As well as giving a
general power of attorney to the
first plaintiff on 12 November
1990, an astonishing event, she put into the control of the
plaintiffs all her money and other
property; $150,000 on 12
December 1990, $74,590 drawn from her bank account by Mr Shaw on
30 January 1991, her will of 26
March 1991 leaving the whole
of her estate to the plaintiffs but otherwise benefiting only
her dog, a further power of attorney
of 24 July 1991, a
withdrawal of $167,247 from an investment with Manchester Unity
on 30 January 1992 and a yet further power
of attorney relating
to property in Jordan, in favour of Mrs Leila Shaw on 3 June
1992. The second power of attorney explicitly
enabled benefits
to be conferred on the donee of the power, although it was not
shown by evidence whether or not there was
any transaction in
exercise of this power of attorney or this extension. There were
also other large dealings with property
for which some
explanation appears; there was a withdrawal from her bank of 12
December 1990 of $160,000 which was invested
in Manchester
Unity, another withdrawal of $213,408 on 17 May 1991, $200,000
of which was invested in Manchester Unity while
the balance was
given to Mr Newman who was then conducting litigation on her
behalf, and a withdrawal on 30 January 1992
from Manchester
Unity of $167,247, $50,000 of which is explained as that sum was
paid to Mr Newman's trust account a few
days later, but the
balance of which was paid to an accountant in the name of Mrs
Shaw and is not satisfactorily explained.
She had a real need
for some of these withdrawals; large sums were paid to Mr Newman
who was conducting probate litigation
on her behalf. I am not
suspicious of the sums paid to Mr Newman, and the probate
litigation was brought to a successful
conclusion with a
settlement under which she was to receive half of her brother's
estate. However very large sums passed
to the Shaws or into
their control, far more than would have been reasonable to pay
for services she received from them,
and if the payment of these
sums should be perceived as acts of generosity, they were
markedly eccentric.
The earlier
history of the testatrix' relationship with Mr Shaw
sets a context in which it is extremely strange that these high
confidences
were placed in him. Mr Shaw became known to her
about the end of 1986 as an agent for Manchester Unity, with
whom she was
considering making some investments. In fact she
did make some investments with Manchester Unity through his
agency; in March,
April, May and June 1987 she made six
investments of sums totalling $100,000 and in January 1989 a
further $50,000. In or
before April 1990 she had redeemed all
these. Thus far, these events seem unremarkable.
On 20 January 1991 the testatrix
lent Mr George Shaw $10,000
repayable free of interest by 1 June 1990, and the loan was
recorded in writing. She was unsatisfied
with this transaction
or some aspect of it, and about March 1990 complained to Mr John
Crichton about the matter. Not long
after this complaint most of
the withdrawals of her then Manchester Unity investments took
place. About May 1990 she gave
Mr John Crichton $32,500 for
Mr Crichton and his wife to use as a deposit on a purchase of
a home. This was her only benefaction
of significant size to
him, and indicates that at the time of the gift he enjoyed her
good will. Several years before Mrs
Susan Crichton had asked
her for a much larger gift; she did not make this gift, but
her good will towards Mr John Crichton
continued after that
request.
In the second half of 1990 there were large signs of change and
accelerating deterioration.
Mrs Crichton had the emotional
disturbance of her brother's death and the concerns of the
ensuing litigation. In August her
General practitioner referred
her (as he had done once before) for geriatric assessment,
reflecting his concern about whether
she could continue to
live alone. Her concern developed over whether she could find
someone to take over management of her
affairs. She met Mrs
Leila Shaw. By November 1990 the complete ascendancy expressed
in giving the general power of attorney
to the first plaintiff
and making large changes in her dispositions had occurred.
All in all, the circumstances of the testatrix'
life and her
relationship with the Shaws from the second half of 1990 onwards
represent an astonishing transformation of
her way of life,
attitudes to other people and confidence in them. She moved
rapidly from being an elderly widow living alone
in
circumstances in which she had lived for many years with the
assistance of her relatives in practical affairs, making
moderate investments and a modest gift to her nephew, with
testamentary dispositions distributing benefits among her
relatives and a number of charities, the worst cloud on her
horizon being her general practitioner's concern about whether
she could still living alone, to living in total physical
dependence on the Shaws, receiving visits from them daily and
depending on them for acts of daily living, putting all her
affairs in their hands through powers of attorney, radically
altering her testamentary dispositions so as to benefit only
them and expressing hostility towards the relative who had
helped her for several years. In the circumstances any gift
or disposition of property, including any testamentary
disposition,
particularly in favour of the Shaws, must come
under careful scrutiny and consideration before it could be
accepted that
it was done by her of her own will and intention
and with a real understanding of what it involved.
The evidence of the
Shaws was quite unreliable, and the evidence
adduced on their behalf has done nothing to dispel suspicions
or give me confidence
in any of these transactions, including
the 1990 and 1991 wills. I am satisfied that Mr Shaw was
deliberately evasive in
his evidence when confronted in
cross-examination with matters with which he did not wish to
deal. Dishonesty and instances
of morally poor conduct in Mr
Shaw are not significant only for their impact on credit. They
also bear on the probabilities
of his behaviour in dealing with
Mrs Crichton. In view of her extreme caution and reluctance
for commitment to make payments
in other directions it is
extremely unlikely that her entry into investments in large sums
in Manchester Unity and into what
appear to be gifts of large
sums were uninfluenced by Mr Shaw. Only Mr Shaw and persons in
association with him were in a
position to influence her and
she was otherwise not in ready communication with anybody, and
it is unlikely that she acted
on her own initiative in making
large investments and profuse gifts such as she had not earlier
made.
I find that Mr
Shaw and persons associated with him including
Mrs Shaw made unconscionable use of the opportunities offered
by Mrs Crichton's
asking him to take over her affairs. A person
of ordinary honesty would have seen that in her circumstances,
any advantages
flowing from taking these opportunities ought
not to be received, and to persons who observe ordinary
community standards
of morality it would have been clear that
they should not accept her request or willingness to let them
manage her affairs,
however strong her attachment to remaining
in her own home and familiar circumstances, and to her dog, and
it would have
been obvious that her true need was for fairly
intensive nursing and domiciliary care, and that if she was
going to make
large expenditures as she was in a position to
do readily, they should be made in proper ways to obtain those
services and
should not be disbursed to strangers who took over
the management of her life as it was drawing to a close.
The 1990 and
1991 wills were prepared by Mr Newman, who although
he had instructions of the testatrix to prepare them, was
closely associated
with the Shaws and acted in co-operation with
them in everything he did for Mrs Crichton, and it must be said
that Mr Newman
behaved very much as if he was the Shaws'
creature in his dealings with her. It should be said even of
the litigation relating
to Alf Galieh's estate, in which a good
result was achieved, that as Mrs Crichton's last will appeared
to stand, gains made
by Mr Newman's efforts were to pass to the
Shaws in the not too distant future. It is a very strange and
suspicious thing
that an elderly person should transfer her
confidence from relatives to a person who contacted her
originally through selling
her investments in an insurance
company. It is almost equally strange that Mr Shaw, his wife
and others associated with them
should develop an extremely
strong interest in the welfare of a wealthy elderly woman in
declining health, not related to
them and not capable of
managing her own daily living, should receive very large
benefits from her, take over the conduct
of such business
affairs as she had and associate themselves in the preparation
of wills which conferred large benefits on
themselves. Their
behaviour was as I find entirely mercenary in its motivations,
and it is unlikely that there were any effective
limits to the
means which they were prepared to use or did use to secure
benefits for themselves.
About October 1990,
during this period of decline and a month
or so before the first of the wills put forward by the
plaintiffs, Mrs Crichton
began to make accusations against
John Crichton to the effect that he was stealing from her.
These accusations were quite
groundless, and nothing which
should be thought of as a rational basis for them has been
suggested.
Mrs Elaine Rich
was employed as a secretary at Chatswood Legacy
and had long known Mrs Crichton. About October or November 1990
Mrs Crichton
asked Mrs Rich to take over Mrs Crichton's affairs;
in the circumstances this was a rather strange request. She
spoke to
Mrs Rich quite often in the course of Legacy affairs;
both at monthly meetings and also by telephone. She made
accusations
to Mrs Rich to the effect that Mr John Crichton had
had stolen money from her, stolen goods from her house, and was
a robber
and a rogue. She could not be dissuaded from these
ideas. She made a phone call to a Legacy officer in October in
which she
said that she was not in touch with Mr John Crichton
and had left an envelope for him telling him he was a thief.
She told
Mrs Rich that Mr John Crichton had stolen cash to the
value of $3,700 and gardening tools and other tools from her
home,
that he was a thief and that she did not want him in her
home. She also said that many of her private papers had been
stolen
by Mr John Crichton. During this period she objected to
Mr John Crichton visiting her. She also made complaints to Mr
Joiner,
an officer of the Commonwealth Bank, to similar effects
that Mr John Crichton had stolen money, that he was a rogue and
a
robber.
In conversations with Mr John Crichton in November 1990 she
first asked him whether he knew about cash missing from
her
bedroom, later apologised for suggesting that he had stolen it,
and then began to make complaints to him to the effect
that he
was not active enough in the claim to her brother's estate,
that he had valuable papers of hers, that he was lying
in
explanations to her, that he had stolen her bank book, and she
suggested that he knew something about money missing from
her
bedroom, that he had stolen a hammer, an extension cord and her
watch. After Mr John Crichton found her watch while working
in
her yard, she further developed the idea that he or his wife
had stolen the watch. On 12 November 1990 which was the date
on which she executed the power of attorney in favour of Mr
Shaw and two days before she executed the first will put forward
by the plaintiffs, Mrs Crichton telephoned Mr John Crichton at
about 10 o'clock at night and said that he had stolen a bank
book and that God would punish him, and she hung up the
telephone without bringing the conversation to a formal end.
These beliefs and accusations were, I am satisfied, not based
on any facts, and were unlikely to the point of being manifestly
ridiculous. If Mrs Crichton had capacity for understanding
these things she would have seen this at once and could never
have made such statements.
After November 1990 she had few contacts with Mr John Crichton
but in one of these, in January
1991 she again stated that he
had stolen money and that God would punish him. Thereafter there
was never any real reconciliation
between them." ((1) Appeal
Book, pages 925H-927D and 927T-937M.)
6. Subject to the correction that John Crichton received
two gifts from the
deceased, the first being possibly in November 1988 in the sum of $36,000 to
pay off a mortgage, and the second
being in approximately May 1989 in the sum
of $32,500 as a deposit on a house, Bryson J's findings of fact regarding the
relationships
between Mr and Mrs Crichton and the deceased, and Mr and Mrs
Shaw and the deceased are supported by the evidence and were not seriously
challenged.
7. His Honour also found:
"To my mind the evidence shows clearly that Mrs Crichton was
capable of great meanness
and even petty larcenies, and did
not have a rational or balanced understanding of her property
and its value, and of the
significance of expenditures and
benefactions. The contrast between what she said to Mr Bushby
about the availability of
money to fund the litigation over
her brother's estate and the need for Mr John Crichton to
provide for it, coupled with
her complaints about the lack of
progress, and the very ample expenditure of money on legal
costs when Mr Newman had her
instructions and her enormous
benefactions to the Shaws make it clear that in her dealings
with money and benefactions she
was not in the realm of the
rational. Whether or not her behaviour is appropriately
medically categorised as paranoid or
a diagnosis of a paranoid
disorder is medically correct, it is clear in my finding that
she was capable of forming quite
unreasonable judgments about
property and persons." ((2) Appeal Book, page 941G-U).
8. After discussing the medical evidence,
his Honour concluded:
"None of the medical evidence persuades me to turn aside from
the clear conclusion of fact, required
by the evidence of
persons to whom Mrs Crichton spoke, that she had hostile
delusional beliefs about Mr John Crichton when
she executed
these wills. In these circumstances the plaintiffs have not
dispelled the suspicions which the circumstances
attach to
these wills or proved the element essential for testamentary
capacity that at the relevant time Mrs Crichton was
able to
comprehend and appreciate the claims to which she ought to give
effect. Quite to the contrary it is clearly established
that
she could not appreciate those claims because of her delusional
beliefs about Mr Crichton and his behaviour. In the
circumstances I should in my judgment pronounce against the
wills propounded by the plaintiffs and grant probate in solemn
form of the 1988 will.
In my finding, if the testatrix had been able in November 1990
or later to arrange clearly in
her mind what property she had,
what the effects of her dispositions were and what persons had
claims on her bounty and act
of her own uninfluenced will and
intention, she would not have made the dispositions which she
made in the wills. Indeed
she could not possibly have allowed
the arrangements which actually had effect to exist for the
management of her own life."
((3) Appeal Book, page 945F-Y).
9. There were multiple grounds of appeal. I will deal with them in the groups
in which the appellants
addressed their submissions.
GROUNDS 1, 2, 4 AND 9
10. These grounds were:
1. His Honour having made no finding that Mrs Crichton
had been insane, was
of unsound mind or suffered from insane delusions was in error in setting
aside the wills just on the ground
she was (sic) hostile, unreasonable or had
delusional beliefs about John Crichton.
2. Ms Honour erred as to the meaning, nature
and quality of delusions such
as to deprive a testator of testamentary capacity.
4. His Honour erred by failing to adopt any recognised
test of testamentary
capacity to the wills and circumstances surrounding their making.
9. His Honour erred in relation to onus
of the proof.
11. His Honour had to mind and referred to the leading authorities on
testamentary capacity ((4) Banks v Goodfellow
(1870) LR 5 QB 549 at 556;
Timbury v Cottee [1941] HCA 22; (1941) 66 CLR 277 at 280; Re:Hodges, Shorter v Hodges (1988)
14 NSWLR 698 at 706; Bull v Fullton [1942] HCA 13; (1941) 66 CLR 295 at 299.).
12. It was contended, however, that to find lack of testamentary capacity it
was necessary for the trial Judge to find
not only that she suffered from
delusions about Mr Crichton, but that such delusions must be found to be
"insane' delusions, as that
expression was used in Banks v Goodfellow ((5)
(1870) LR 5 QB 549 at 565). It was said there was no such finding. In
particular the following two passages in Bryson J's judgment were criticised
as
being in error:
"Although a question of insanity or mental illness will often
form a part of facts relevant to cases about
testamentary
capacity, this is not in my opinion part of the legal tests
applied, and an attack on capacity involved no need
to show
insanity or mental illness." ((6) Appeal Book, page 924R-V).
"It is essential to the exercise of testamentary power
that a
person should be able to comprehend and appreciate the claims
to which the person ought to give effect, and if the
person is
unable to comprehend and appreciate those claims because of a
delusion about those who have such claims or any
of them. A
decision on whether the delusion is insane or not is in
principle neither useful nor required." ((7) Appeal Book,
page
922 X- 923 F).
13. It was contended there was no legal basis for the first paragraph, and
that in respect of the second,
Banks v Goodfellow required that any delusion
about persons having claims on the testator, which delusion masks a
comprehension or
appreciation of those claims, must be insane delusions to
deprive the testator of testamentary capacity.
14. In my opinion Bryson
J did not misstate the test. The passage in the
judgment of Cockburn CJ in Banks v Goodfellow is as follows:
"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.
Here, then, we have the measure of the degree of mental power
which should be insisted on. If the human instincts and
affections,
or the moral sense, become perverted by mental
disease; if insane suspicion, or aversion, take the place of
natural affection;
if reason and judgment are lost, and the
mind becomes a prey to insane delusions calculated to interfere
with and disturb
its functions, and lead to a testamentary
disposition, due only to their baneful influence - in such a
case it is obvious
that the conditions of the testamentary
power fails, and that a will made under such circumstances ought
not to stand." ((8)
(1870) LR 5 KB 549 at 565).
15. That passage makes clear that "insane" delusion is used in a special
sense, namely, such confusion of her mind introduced
by such suspicion or
delusions as to prevent understanding or recognition of obligations or
interests to which regard should be had.
So much was recognised in Timbury v
Cottee ((9) [1941] HCA 22; (1941) 66 CLR 277. Rich ACJ). Rich ACJ expressed the test as being
whether "the delusions overmastered his judgement at the time of executing the
will
to such an extent as to render him incapable of making a reasonable
proper disposition of his property or of taking a rational view
of the matters
to be considered in making a will". Dixon J, in dealing with a testator who,
when withdrawn from alcohol, may be perfectly
normal in his perceptions and
sensations, whose train of thought may be rational and strong and whose memory
is good wrote:
"We are not bound to go on applying views held over a century
ago about mental disturbance and insanity and to disregard modem
knowledge and understanding of such conditions. In Stoddart's
Work on Mind and its Disorders, 5th Edition, 1926, page 415,
the
case of such a patient as the testator was is described in terms
which almost fit the present case: "Disturbance of judgment
is
the essential feature of the disease, the patient seeing hidden
meanings in the most common place incidents. As a rule,
the
erroneous judgments have reference to his wife's fidelity. He
sees evidence of her infidelity in the fact that she bows
to an
old acquaintance in the street, that some man unknown to him
hurries past the window, that his wife is not prepared
for his
return from the office for an hour earlier than usual or that
the cushions on the sofa are not in their usual positions."
Although the case is not an easy one, the balance of probability
appears to me to be that the testator's suspicions, distrust,
resentment and tendency towards hostility in relation to his
wife were the characteristic consequences of his alcoholism.
It
is not a question of how far a rational man, suspicious by
nature, might have formed the same views by a misconstruction
placed upon his wife's actions and associations. It is a
question of the proper deduction from the symptoms, the kind
of antagonism and suspicion that might be expected as a
consequence of his dipsomania. A conclusion that such feelings
and
beliefs are indications of a judgment too disturbed to
allow a finding in favour of capacity when the will of 22nd
October
was made is not necessarily inconsistent with the view
that not long before he might for an interval have gained a
temporary
freedom from his obsessions and that an intermission,
like that occurring on 20th August, might give the testator
sufficient
judgment and sanity to enable him to make a valid
will.
As the burden of proof to testamentary capacity lies fully upon
the executors where the evidence leaves the matter doubtful, I
think the finding against the will of 22nd October 1938 ought
to be supported." ((10) [1941] HCA 22; (1941) 66 CLR 277at 284).
16. That passage makes clear, in my view, that the mental disturbance which
grounds testamentary incapacity does not involve
any finding of "insanity" as
that expression is used in medical or common parlance. That that is so is
reinforced by the judgment
of Williams J in Timbury v Cottee ((11) (1941) 66
CLR at 291-293) where his Honour said:
"In my opinion the jury were plainly
entitled to form a view
that this estimate of Mr Coffee's character was so irrational
as to be due to some aberration of
his intellect. It was far
more than the natural outcome of an intensively jealous and
suspicious mind whose underlying judgment
was still sound.
Jealous and suspicious men no doubt do object to their wives
enjoying male society and are apt to attribute
undue familiarity
to ordinary acts of social courtesy. But is surely a strong
indication that the mind has become unhinged
when even a jealous
and suspicious husband commences to believe that his wife has
been committing promiscuous adultery, although
he has never
discovered her in any compromising position and has to invent
imaginary happenings to justify his belief..."
Williams J concluded:
"There was ample evidence that on 28 September and 22nd October
1938 he was suffering from an insane
disorder of the mind which
within the language of Cockburn CJ in Banks v Goodfellow
poisoned his affections, perverted his
sense of right, and
prevented the exercise of his natural faculties. There is no
doubt the will was due to its baneful influence.
'Me definitions
of an insane delusion have been summarised in Mortimer on
Probate Law and Practice, 2nd ed., 1927, p.50."
((12) (1941) 66
CLR at 293. In the light of remarks by Dixon and Williams JJ,
the passage in Smith v Tebitt (1867) LR 1 P 308 at 401-403 must
be of doubtful assistance).
17. The expression "insane delusion" is to be understood as explained in
Timbury
v Cottee. It is unnecessary to find medical insanity, or to
characterise a delusion as "insane" if, in truth, "the delusion overmastered
the judgment at the time of executing of the will to such an extent as to
render him incapable of making a reasonable and proper
disposition of his
property or of taking a rational view of the matters to be considered in
making a will". ((13) (1941) 66 CLR at
280).
18. The onus of proof establishing testamentary capacity in relation to the
last two wills lay upon the appellants as they
were propounding those wills.
((14) (1966) 66 CLR at 284; Worth v Glasohm [1952] HCA 67; (1952) 86 CLR 439 at 453). They
failed to establish that capacity to the satisfaction of the trial judge. In
those circumstances the appellants claim
failed.
19. In my opinion the challenges to the trial judge's statement of legal
principle fail. It follows that grounds 1 to
4 inclusive fail.
GROUNDS OF APPEAL 3, 5, 7 AND 11
20. These grounds of appeal were:
3. His Honour having found that he was
left without any clear view of the
mental disorder or disease of the mind, "if there was one", to which Mrs
Crichton's beliefs about
Mr Crichton and her hostility to him would be
attributed, was in error in setting aside the wills just because Mrs Crichton
had hostile
beliefs concerning Mr John Crichton which beliefs lacked a
rational basis and were delusional in character.
5. His Honour erred
in finding that Mrs Crichton had irrational and
delusional hostile beliefs concerning her nephew, Mr John Crichton.
7. His Honour
erred in not taking into account that Mr John Crichton was in
fact referred to in the 1990 will and that Mrs Crichton had given a
rational
reason on the face of it why he was excluded as a beneficiary.
11. There was no evidence that even if Mrs Crichton had
delusions concerning
John Crichton that such delusions were directed to or taken into account by
Mrs Crichton in the making of the
wills.
The appellant argued that, accepting that the deceased had beliefs
concerning Mr Crichton, those beliefs were not irrational
or delusional. It
was argued that the evidence disclosed that Mr John Crichton knew that the
deceased kept money in her bedroom and
thus it was rational for her to suspect
him of stealing money which she said was missing. Mr Crichton handed to the
deceased her
watch which he found whilst raking the path at the deceased's
house. On returning it to her she said: "Oh, thank you darling. I know
what
happened to it now. I lost it on Tuesday night after the Lend Lease party".
((15) Appeal Book, page 823P.) Yet it was contended
that passing of the watch
by Mr Crichton to his aunt later could ground a reasonable suspicion in the
deceased that he had stolen
it. Similarly it was argued that because Mr
Crichton did gardening and handyman work around the deceased's house, that
permitted
the deceased to come to a rational belief that he stole her tools,
comprising a hammer, an extension cord and a screwdriver. To the
same effect
it was argued that because the deceased had given Mr Crichton the original
loan agreement between herself and Mr Shaw
and some insurance deposit receipts
and other documents, when, in November 1990 she asked him to "give me back my
papers" to which
he replied I do not know what papers you are talking about"
that was sufficient to ground in the deceased a rational view that Mr
Crichton
had stolen her papers, such as to rationally justify her response: "You know
about everything. You are a liar."
21. It
is sufficient to say that I share the view of Bryson J that none of
these circumstances could give rise to any rational belief of
dishonesty by Mr
John Crichton or suspicion about his conduct. Nor could they rationally ground
delusions by the deceased that Mr
John Crichton was stealing from her and was
to be so distrusted that her wills should be altered to exclude him in favour
of the
Shaws.
22. Grounds 3 and 5 thus fail.
23. It is true that Mr John Crichton was referred to in the 1990 will. Clause
5 stated:
"I have made no further provision for my nephew John Crichton
as I of late have made substantial provision for him by way
of
a gift of moneys to him such gifts being of an order which I
consider to be adequate".
24. $68,500 had been provided
to Mr Crichton in late 1988 and mid-1989. The
respondent is, however, correct in my view in submitting that such sums "pale
into
insignificance compared to the hundreds of thousands of dollars withdrawn
from the deceased's account" as recited by Bryson J in
circumstances not
satisfactorily explained. The imbalance between the size and timing of those
gifts and the size, nature and extent
of the property which the 1990 will
would have bequeathed upon Mr Shaw support, rather than diminish, the view
that the deceased
had no rational understanding of the nature and size of her
estate or of the comparative claims which Mr Crichton on the one hand
and Mr
Shaw on the other might have to her bounty.
25. That the deceased had no proper understanding of the extent of her estate
is clear from the evidence that, when asked by Mr Newman to list all her
assets, she omitted to refer to deposits with the Commonwealth
Bank and St
George Building Society totally approximately $325,000. ((16) Appeal Book,
page 566,152).
26. In my opinion ground
7 fails.
27. It is true there is no direct evidence that the delusions which the
deceased had regarding Mr Crichton were taken
into account by Mrs Crichton in
the making of the last two will. However absent any satisfactory explanation
by Mr and Mrs Shaw which
might explain satisfactorily the great bounty
bestowed upon them by the 1990 and 1991 wills, once it is accepted that the
deceased
had delusions of the nature to which Bryson J referred regarding Mr
Crichton, the only reasonable inference is that those delusions
operated upon
the mind of the deceased so as to deprive her of proper testamentary capacity
in accordance with the principles previously
discussed.
28. In my opinion ground 11 fails.
GROUNDS 6, 8 AND 16
6. Ms Honour erred in failing to take into account that
Mr John Crichton was
not a blood relative of Mrs Crichton but was related only by marriage and even
under the 1988 will he received
only a relatively small proportion of the
estate.
8. His Honour erred in failing to consider the rationality or otherwise of
the
1990 and 1991 wills.
16. In the absence of a finding that the appellant exercised undue influence
over Mrs Crichton (as has been
alleged by the respondents) his Honour was in
error in placing too much emphasis on the appellants' relationship with Mrs
Crichton
and their management of her affairs and not enough emphasis on the
circumstances of the making of her two wills and her mental capacity
to make
them.
30. Regarding ground 6, his Honour noted the relationship of Mrs Crichton and
Mr John Crichton. ((17) Appeal Book,
page 918H). His Honour also noted the
disposition to Mr Crichton and others under the 1988 will. ((18) Appeal Book,
page 917H-Q).
There is nothing to suggest that his Honour did not have regard
to these matters. Ground 6 fails.
31. Regarding ground 10, it
is not correct that Bryson J failed to consider
the rationality or otherwise of the 1990 and 1991 wills. One aspect of the
matter
considered by his Honour was whether the substance of the dispositions
made by those wills demonstrated the existence of delusions
indicating
incapacity to rationally understand, in all the surrounding circumstances,
what the testator was doing, the extent of
her estate, the extent of property
being disposed of to the various beneficiaries, and the effect upon relatives
who had given her
significant assistance in the past.
32. The appellants argue that a rational explanation for the changes from the
1988 will to
1990 and 1991 wills benefiting the Shaws, lay in the deceased's
approach of using her capacity to bequeath wealth to those who helped
her. The
argument was that, as Mr and Mrs John Crichton ceased to help her, and the
Shaws commenced and continued to help her, so
it was a rational exercise of
testamentary capacity to revoke bequests to Mr john Crichton and, ultimately,
leave all of her estate
to the Shaws. It was argued that Mr and Mrs John
Crichton assumed an assisting role in the deceased's life only after she had
stated
to Mr Crichton that she intended to leave him a house, and that to
maintain his giving of assistance she read her will to him from
time to time,
and made gifts of some $68,500. ((19) Appeal Book, pages 718, 816, 817).Thus
when she became dependant upon the Shaws
it was rational to leave first the
major portion and later the whole of her estate to them.
33. The submission in my view lacks
substance. The initial indication of a
bequest to John Crichton was not conditional on help from him. Nor was there
any evidence
of subsequent threat by the deceased to remove him from her will
if he withdrew assistance. It ignores the fact that it was the deceased
who
irrationally drove John Crichton from her life, not that he withdrew with the
deceased then altering her will to reflect withdrawal
of assistance. Nor was
there any evidence of conversations or events involving the deceased and the
Shaws which made the bequests
to them conditional on continued care. The
submission also neglects the fact that the change in the will appeared, absent
other explanation,
to be related to the deceased's delusions regarding Mr John
Crichton.
34. Ground 8 fails.
35. It is not correct, in my view,
to suggest that his Honour placed too much
emphasis on the appellants' relationship with the deceased and the management
of her affairs.
The circumstances in which they came to occupy a position of
dominance over the deceased are, on any view, both extraordinary and
inadequately unexplained. Those circumstances are a factor proper to be
considered in determining, along with other matters related
to the testator's
mental capacity, whether the deceased lacked testamentary capacity.
36. Ground 16 fails.
GROUND 10
10. His
Honour erred in finding a possible multiple personality in Mrs
Crichton when such finding was wholly unsupported by any expert evidence.
38. His Honour said:
"It is a familiar thing that people can present different
aspects of their personalities or even
apparently different
personalities to different observers on different occasions,
and in my judgment the evidence shows that
Mrs Crichton was
capable of appearing moderate, reasonable, ordinary and
businesslike on occasion but did not fully reveal
itself by
such behaviour." ((20) Appeal Book, page 940).
39. The appellants contend there was no expert evidence to support
this
finding. Expert evidence for such a statement is not, in my view, required it
being a common understanding of man. Indeed, Dixon
J addressed a similar
matter in Timbury v Cottee. ((21) (1942) 66 CLR at 283-284). There was
abundant evidence before Bryson J to
support a factual finding of variable
personality.
40. Ground 10 fails.
GROUNDS 12, 13 AND 14
12. His Honour erred by not
giving sufficient weight to the evidence of Dr
Ross-Smith, Dr Angstman and Dr Milton.
13. His Honour failed to consider the evidence
of Dr Faulder.
14. His Honour erred in his interpretation of the evidence of Dr Russell and
changes in the opinions of Dr Russell.
42. Regarding ground 12, the weight to be given to evidence of particular
witnesses is a matter for the trial Judge. There was
ample material upon which
the trial Judge was entitled to prefer the evidence of Dr Russell.
43. Regarding ground 13, there was
no need for the trial Judge to refer to
the evidence of Dr Faulder if he thought it of little assistance. Dr Faulder's
report and
statement make clear that she did not see the deceased until well
after the making of the second and third wills. This ground fails.
44. The submissions in support of ground 14 were, in substance, that his
Honour should have preferred the evidence of Dr Milton
to that of Dr Russell.
Ms Honour gave substantial reasons for preferring the evidence of Dr Russell.
I can find no basis for rejecting
the analysis of the evidence of Dr Russell
made by his Honour.
GROUND 15
15. His Honour's reasons for judgment and orders were
against the evidence
and the weight of the evidence.
46. I do not agree. The substance of this ground of appeal has been dealt
with in relation to previous grounds. The factual errors said to be
illustrated by the written submissions are of no consequence,
other than that
relating to the size of gifts to Mr John Crichton to which I have referred
earlier. None of the matters referred
to affect the substance or integrity of
the learned trial judges findings.
GROUND 17
17. His Honour erred in not ordering that
costs of both parties were to come
from the estate or in the alternative that each party pay their own costs.
48. His Honour gave
a considered judgment in relation to costs. He was of the
view that, in substance, the litigation was inter-parties litigation in
which
the appellants failed. That was so in circumstances where the appellants had
much to gain such that the seeking of probate
of the last two wills was not an
exercise of any duty as executors but rather was to be viewed as inter-parties
litigation from which
the appellants, if successful, would greatly benefit.
49. In my view the decision on costs being the exercise of a judicial
discretion,
no error has been shown which would justify this court in
disturbing the trial Judge's decision.
ADDITIONAL GROUND
50. Leave was
sought to argue the following additional ground:
18. His Honour erred in holding that because he found the
evidence of the
Shaws was unreliable, that this bore on the
possibility of Shaws' behaviour with the deceased.
Leave to argue this additional
ground should be granted.
51. His Honour found:
"Dishonesty and instances of morally poor conduct in Mr Shaw are
not
significant only for the impact on credit. They also bear
on the probabilities of his behaviour in dealing with Mrs
Crichton."
((22) Appeal Book, page 933).
52. That finding was challenged on the basis that absent firm evidence of
influence by Mr Shaw the
conclusion reached was unavailable. It was argued
that a lie can only constitute an admission against interest if it relates to
a
material issue. ((23) Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211).
53. The point of his Honour's finding was not to treat Mr Shaw's
unreliability as a witness as an admission against
interest. it was to
diminish the effect of his endeavours to explain the inference to be drawn
from established facts regarding gifts,
powers of attorney and wills which
demonstrated the nature and extent of influence Mr Shaw exercised over the
deceased. In my opinion
the ground fails.
54. I would propose that the appeal be dismissed with costs.
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