Bishop v O'Dea [1999] NZCA 239; (1999) 18 FRNZ 492 (20 October 1999)

Last Updated: 30 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 120/99

	BETWEEN	J J BISHOP AND OTHERS
		Appellants

	AND	P J O'DEA AND ANOTHER
		First Respondents

	AND	M J BYRNE AND OTHERS
		Second Respondents

Hearing:	28 September 1999
Coram:	Tipping J
	Heron J Goddard J
Appearances:	I D Matheson for Appellants First Respondents abide decision M R Camp QC and G J Thomas for Second Respondents
Judgment:	20 October 1999

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] This appeal concerns the testamentary capacity of the late Daniel Bernard Byrne (Mr Byrne) who died on 5 October 1996. His last will dated 12 March 1995 was held to be invalid for want of testamentary capacity, following a five day trial in the High Court at New Plymouth. The beneficiaries under that will (the Bishop family) appeal from Smellie J's judgment. The respondents (the Byrne family) are those who take Mr Byrne's estate on the intestacy which resulted from the decision under appeal.
[2] In his comprehensive judgment, Smellie J considered all relevant matters in considerable detail and with obvious care. He made a number of factual findings which are now under challenge. The Judge had ample opportunity to assess the witnesses, and draw appropriate conclusions from their testimony. In such circumstances the task of those who challenge those findings is a substantial one: Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA). Various legal matters were raised but in the end no great controversy of law emerged from counsel's submissions. Before turning to the issues and the relevant factual background, it will nevertheless be useful to summarise the relevant legal principles in terms of which the case must be decided.

Legal principles

[1] In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity: Re White [1951] NZLR 393 (CA) and Peters v Morris (CA99/85: judgment 19 May 1987).
[2] If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris (supra).
[3] That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[4] In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:

(a) that he or she was making a will and the effect of doing so ("the nature of the act and its effects")

(b) the extent of the property being disposed of

(c) the moral claims to which he or she ought to give effect when making the testamentary dispositions.

These three matters derive from the leading authority of Banks v Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v Hooker (Court of Appeal, Wellington, CA 172/96, 16 September 1997) and in Peters v Morris (supra).

[5] If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4 Halsbury's Laws of England, Vol 17 at para 904.

Background circumstances

[3] The family history and other background is quite complex. It was fully set out in Smellie J's judgment and we will refer only to such matters as are necessary to deal with the issues raised on appeal. The Byrne family are the children of Mr Byrne's brother, James, who predeceased him by a number of years. They are his closest relatives. Mr Byrne was their uncle. By his will Mr Byrne gave one of his two farms to Timothy Bishop and the other to Timothy's sisters, Louise and Rachel. Residue was left to their parents, John and Margaret and to Louise and Rachel as tenants in common in equal shares. At death Mr Byrne's estate was worth nearly $4.5 million. The farms had been in the Byrne family for three generations. Mr Byrne never married and had a major alcohol problem. The Bishops were his immediate neighbours, and Mr John Bishop is his second cousin. In the late 1970s Mrs Margaret Bishop started to look after him. He was soon having most of his meals with the Bishops. They did not welcome him when he was affected by alcohol, but subject to that, for many years before his death Mr Byrne treated the Bishops' home as his second home. On occasions when Mr Byrne was unwell, the Bishops looked after his farm. Mr Byrne took a close interest in Timothy, Louise and Rachel - Timothy in particular. In many senses he became part of the Bishop household and, as Smellie J put it, he developed a deep regard for his adopted family. He began to contemplate them as beneficiaries in his estate on his death. He had earlier said he did not intend to leave the farms out of the Byrne family; but it appears, for reasons which do not have to be traversed, that he may have changed his mind on that subject. Mr Byrne did not make any will before the one in issue. His solicitor, Mr O'Dea, indicated he had procrastinated despite several promptings. The Judge was of the view that over the last 4 to 5 years of his life, Mr Byrne's mind was moving towards making provision for the Bishop family, primarily the children, and in particular Timothy.

The making of the will

[4] Mr Byrne gave instructions for his will and signed it on the same day - Sunday 12 March 1995. At about 8am that day he arrived at the Bishop property to assist with milking. Between 8.30 and 8.50am he was in the Bishops' house kneeling on the floor reading the paper. He collapsed, falling heavily facedown. He lost consciousness and looked very white. An ambulance was called. Before it arrived Mr Byrne came round. He was helped into a chair and was sitting there with a blanket around him, pale and shaking, when the ambulance arrived. He was taken to Hawera Hospital, examined by the Doctor on duty, and placed in the Intensive Care Unit for observation. The Doctor completed his examination by about 12 noon. No specific diagnosis had been made at that stage. There was concern that the collapse may have been as a result of heart problems or perhaps a stroke.
[5] During the course of the afternoon Mr Byrne was seen by his solicitor, Mr O'Dea who had been called in at his request to take instructions for a will. He was also seen by Mr and Mrs Bishop, Mrs Bishop's mother, and his parish priest, Father Garty who happened to be visiting the hospital and administered the last rites. After taking Mr Byrne's will instructions Mr O'Dea went home. His wife typed up the will, and he returned to the hospital where it was signed between 5 and 6pm.

The Judge's findings about capacity

[6] Smellie J noted that without exception all the doctors who gave evidence agreed that Mr Byrne did not have testamentary capacity when he was first admitted to the hospital at 9.55am. He also recorded that all the doctors had agreed, albeit with varying degrees of firmness, that either Mr Byrne did not have testamentary capacity or it was very doubtful whether he had capacity at 12 noon when the examination performed by Dr Nealis was concluded. The Judge therefore indicated that he had no difficulty in reaching the conclusion that Mr Byrne did not have testamentary capacity from the time of his collapse until 12 noon. He also noted that it could not be said to what extent, if at all, his condition had improved over that period.
[7] The Judge next noted that the medical and psychological witnesses on both sides were agreed that the rate of recovery to be expected in circumstances like these would vary greatly from case to case. He found, on the basis of substantial agreement between the experts, that Mr Byrne's age and prolonged alcohol abuse was likely to have slowed his rate of recovery. The Judge also found, in accordance with further substantial agreement between the experts, that because no subsequent tests had been conducted it was impossible to say specifically when Mr Byrne's testamentary capacity returned, or even with absolute certainty that it ever did. The Judge then found that Mr Byrne had given his instructions to Mr O'Dea between 3 and 4pm over a period of more than 30 minutes, and that the process of execution which occurred between 5 and 6pm occupied approximately 10 minutes.
[8] The Judge referred to an essential difference between the doctors on each side. Those called for the Byrne family were of the view that the relatively superficial contacts which the lay people had had with Mr Byrne that afternoon were of little or no value in assessing Mr Byrne's neurological and mental condition in relation to testamentary capacity. On the other hand, the doctors called by the Bishop family felt that much more weight could and should be put on the nursing and non-medical evidence. They considered the fact that none of these people saw any signs of mental confusion, established that by 3pm, or thereabouts, Mr Byrne had regained his testamentary capacity, and if not by then, certainly by the time the will was signed between 5 and 6pm. The Judge resolved that difference between the experts in this way:

Having watched the doctors give evidence and subsequently carefully re-read and re-considered both their evidence-in-chief, cross-examination and re-examination I am firmly of the view that the plaintiffs' [those called for the Byrne family] witnesses are to be preferred. Doctors Hornabrook and Luke in particular throughout long and distinguished careers have had the opportunity to assess the significance of nursing, social and other contacts where cognitive function is in doubt.

[9] The Judge proceeded to expand on that aspect and then refer to the evidence given by the nurses, Mr O'Dea, and those members of the Bishop family who saw Mr Byrne at this time. Having done so he expressed his views in this way:

Quite apart from the "visitor evidence", (called to either establish testamentary capacity or discharge the onus), I am persuaded, especially by the evidence of Drs Hornabrook and Luke but supported by Drs Treadwell, Nealis and Fielding, that between 5 and 6 would have been the very earliest that testamentary capacity could have returned and given the limited progress between 8:30 and noon together with the Testator's age and health the probability is it would have been a good deal later.

[10] After considering certain other matters which will be dealt with separately below, the Judge expressed his ultimate conclusion at the end of this section of the judgment by saying that he was left , not with a residual doubt, but with the clear view that the burden resting on the beneficiaries, ie. the Bishop family to prove affirmatively that Mr Byrne possessed testamentary capacity had not been discharged. He therefore declared the will invalid. The grant of probate earlier made to Mr O'Dea and his brother as executors of the will was recalled. Substitute administrators were appointed and the Judge directed that Mr Byrne's estate should be distributed as on an intestacy. It is against that background that the issues raised on this appeal must be addressed.

Pre and post execution statements

[11] Mr Matheson contended the Judge had wrongly assessed the weight which should have been put on certain pre and post execution statements which Mr Byrne had made about his will and its contents. Such statements may be of relevance to capacity but it is vital not to confuse capacity at the time of execution with intent at the time of the making of the relevant declarations. In the present case we cannot see how any pre execution statement which Mr Byrne may have made concerning his testamentary intentions can have any relevance to his testamentary capacity at the time he made his will. The post execution statements lose much of their force relative to capacity if Mr Byrne was working from a copy of his will. A file note made by Mr O'Dea was in evidence in which he noted he had given Mr Byrne a copy of the will. He did not say when, and the file note was made a long time later, indeed after Mr Byrne's death. However Mr O'Dea was not challenged on the point and the natural inference in accordance with normal practice is that Mr Byrne was supplied with the copy either at the time of execution or shortly afterwards.
[12] Thus when he made the statements which he did to Mr Lagan about one month after execution it is reasonable to infer that he had already received the copy and could and probably would have looked at it to confirm what he had done in hospital. Although his statements to Mr Lagan show he then intended his testamentary dispositions to be in accordance with the will he had earlier signed, they are of little, if any, relevance to his capacity at the time of signing. The same can be said of Mr Byrne's much later statement to Mr Dudli some two months before his death.
[13] This leaves the evidence of Mr John Bishop who drove Mr Byrne home from the hospital on the Tuesday. It is apparent that the Judge had reservations about Mr Bishop's evidence generally. He specifically mentioned the matter when considering at page 82 of his judgment the issue of post execution declarations:

The post-execution declarations are also of doubtful value. If Mr O'Dea gave the Testator a copy of the will at the hospital then his statement as to the contents of the will if made to Mr Bishop on the way home from hospital is more likely to have been the result of reading it over rather than a recall of what he had done the previous Sunday afternoon. And, again, I have reservations about Mr Bishop's evidence on this point. He also suggested the Testator might have told him and his wife upon returning from hospital but Mrs Bishop was clear that that was not so.

So far as the statements to Messrs Lagan and Dudli are concerned, they cannot be of much weight in my view. On the balance of probabilities the Testator had a copy of the will by the time he spoke to those two witnesses.

[14] Mr Matheson put this ground of appeal at the forefront of his client's case. We are however not persuaded the Judge failed to give appropriate weight to this aspect of the Bishops' case. Indeed we consider his approach was entirely appropriate. As against the weight of other evidence the Judge was perfectly entitled to find the pre and post execution statements made by or attributed to Mr Byrne did not either alone or in combination with other points, discharge the onus which rested on the Bishops to show affirmatively that Mr Byrne had testamentary capacity when he made his will.

Time at which capacity required

[15] Mr Matheson argued the Judge had misdirected himself to the effect that testamentary capacity was required both when the instructions were given and when the will was signed, whereas in law capacity is required only at the time of execution. It is true that the will maker must have capacity only at the time of execution. If in a rare case there is lack of capacity when instructions are given but the will maker both has and exercises capacity at the time of execution, the will is valid. Here the two events were only 2 or 3 hours apart. It is understandable therefore that the Judge may have appeared to run the two together and in places to speak of capacity both at the time of instructions and at execution. What is important however is that the Judge clearly indicated he was not satisfied Mr Byrne had testamentary capacity at the time of execution. For this reason, even if the Judge did also focus on the time of instructions, his doing so can have made no difference to his ultimate conclusion. In short the Judge was not satisfied Mr Byrne had recovered sufficiently at either time to have regained his capacity to make a will.

Apparent rationality of will

[16] Irrationality of a will on its face, either as to content or as to expression, is often an indication of greater or lesser force that the will maker lacked capacity. But the rationality of a will on its face does not necessarily provide much evidence of capacity, especially if the will is professionally drawn, in which case one can expect it to be at least rationally expressed. There was in this case a rational reason for Mr Byrne wishing to benefit the Bishop family; thus the will certainly could not be described as irrational on its face. Its ex facie rationality was simply one of a number of factors which the Judge had to consider. That the will was rational on its face was clearly apparent. In the circumstances of the present case and in particular in the light of the medical evidence we do not consider there is any force in Mr Matheson's contention that the Judge failed to give any or sufficient weight to this factor.

The weight of the medical evidence

[17] Mr Matheson argued that the medical evidence did no more than raise an onus against his clients. He thereby implied that the Judge had been wrong to decide that such onus had not been discharged. This is an untenable submission. The Judge heard a great deal of medical evidence and came firmly to the view that the evidence against capacity was to be preferred. We have considered all the matters which counsel drew to our attention both orally and in writing but are left a long way short of being satisfied that the Judge's view should be reversed. Indeed, working simply from the transcript we would have come to the same conclusion as he did. In short the medical evidence pointed quite strongly to the conclusion that Mr Byrne had probably not regained testamentary capacity at the time he signed his will.

Lay evidence

[18] The Bishops' contend the Judge did not put enough weight on the evidence of the lay witnesses namely Mr O'Dea, Father Garty, and various nurses and members of the Bishop family. The Judge did not consider their views outweighed the preponderance of medical evidence. The Judge's assessment in this respect is certainly not shown to be wrong and is indeed supported by the nature of the exchanges which the various people involved had with Mr Byrne. In most cases the conversations were at a very low level of intellectual demand, as was to be expected in the circumstances. The solicitor, Mr O'Dea, seems to have been very perfunctory in his approach to Mr Byrne's capacity. He did not even enquire why Mr Byrne was in hospital, what was wrong with him or take any medical opinion about his fitness to make a will. We agree with Smellie J's assessment of his performance. His views were entitled to little weight in the circumstances.

The morality of the dispositions

[19] Mr Matheson submitted that the Judge had been unduly influenced towards incapacity by the view that Mr Byrne had failed in his moral duty to his own family by making a will entirely in favour of the Bishop family. We agree with Mr Camp's submission when addressing the question of moral duty or responsibility, that the Judge did not invalidate the will simply because it cut out the Byrne family. He was addressing whether the third criterion in Banks v Goodfellow (supra) was established, ie. whether Mr Byrne had sufficient capacity to weigh up properly the moral claims which could reasonably be thought to exist on his bounty. The Judge was not satisfied that at the time he made his will Mr Byrne had sufficient capacity properly to weigh the interests of his own family when deciding to leave them no part of his substantial estate. This was a relevant enquiry and we are unable to accept that the Judge erred in his approach to this aspect of the case.

Concluding observations

[20] It is understandable that the Bishops are disappointed with the decision of the Judge and will no doubt be equally disappointed at the decision of this Court. Both have been based on the principles of law which apply to the facts as found. In purely moral terms the Bishops ought to receive a significant part of Mr Byrne's estate in recognition of their close relationship with him and the support and comfort they gave him during the last period of his life. This Court cannot however treat the will as valid on moral grounds when it is not so in law. While Mr Byrne undoubtedly ratified his will orally after it had been made, and at a time or times when he may well have had capacity such oral ratification cannot turn a will invalid for lack of capacity into a valid will. So much was properly common ground. The pity of it is that it would have taken only a very short codicil, executed once Mr Byrne could be shown to have recovered, to validate the earlier will. Indeed a new will could then easily have been made. But there is nothing which can be done about that now.

Formal orders - costs

[21] As none of the grounds of appeal succeed the appeal is dismissed. In the circumstances there will be no order for costs against the appellants. At first instance Smellie J ordered that in spite of the fact they had lost, all the Bishops' costs should be paid out of the estate. Although we are prepared to relieve them of the customary costs order against them in this Court we consider the comparative lack of substance in their appeal means they should not have any costs out of the estate in relation to the appeal. Justice will be served if both sides pay their own costs in that respect.