SHAW v CRICHTON [1995] NSWCA 423

SHAW v CRICHTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, POWELL and COLE JJA 3 March 1995, 23 August 1995

Testamentary capacity — application of Timbury v Cottee (1941) 66 CLR 277 and Banks v Goodfellow [1870] LR 5 QB 549.

Handley JA I agree with Cole JA.

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.

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.

As I sought to record in Re Hodges: Shorter v Hodges! (see also Public Trustee v Farrell;2 Permanent Trustee Co Ltd v McDermid, 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.