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. 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; 1. Appeal Book, pages 925H-927D and 927T-937M. 2. Appeal Book, page 941G-U. 3. Appeal Book, page 945F-Y. 2 UNREPORTED JUDGMENTS 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. 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 bi-polar 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; URJ SHAW v CRICHTON (Powell JA) 3 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 3rd Ed ("DSM 3") an almost universally used psychiatric textbook) should be noted (at 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 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. 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, 4 UNREPORTED JUDGMENTS that, at the time of executing her Will, the deceased had testamentary capacity, the Will was not entitled to be admitted to Probate. 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. 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. 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. 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. 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 URJ SHAW v CRICHTON (Powell JA) 5 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 199.0, 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 all others in the will of March 1991 are expressions of this abdication. 6 UNREPORTED JUDGMENTS 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 URJ SHAW v CRICHTON (Powell JA) 7 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 8 UNREPORTED JUDGMENTS 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 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. URJ SHAW v CRICHTON (Powell JA) 9 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."4 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. 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."5 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 4. Appeal Book, pages 925H-927D and 927T-937M. 5. Appeal Book, page 941G-U. 10 UNREPORTED JUDGMENTS 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 dearly 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."'6 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 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. His 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. His Honour had to mind and referred to the leading authorities on testamentary capacity." 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.' 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." "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." 10 Appeal Book, page 945F-Y. . Banks v Goodfellow [1870] LR 5 QB 549 at 556; Timbury v Cottee (1941) 66 CLR 277 at 280; Re: Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706; Bull v Fullton (1941) 66 CLR 295 at 299. [1870] LR 5 QB 549 at 565 9. Appeal Book, page 924R-V. 10. Appeal Book, page 922 X- 923 F. ao ad URJ SHAW v CRICHTON (Powell JA) 11 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. 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: "Tt 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.""!! 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.!2 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 modern 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 11. [1870] LR 5 KB 549 at 56S. 12. (1941) 66 CLR 277. Rich ACJ 12 UNREPORTED JUDGMENTS 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.'"!3 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!4 where his Honour said: "Tn 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. The definitions of an insane delusion have been summarised in Mortimer on Probate Law and Practice, 2nd ed, 1927, at 50.7715 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 s "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'".16 13. (1941) 66 CLR 277 at 284. 14. (1941) 66 CLR at 291-293. 15. (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. 16. (1941)66 CLR at 280. URJ SHAW v CRICHTON (Powell JA) 13 The onus of proof establishing testamentary capacity in relation to the last two wills lay upon the appellants as they were propounding those wills.17 They failed to establish that capacity to the satisfaction of the trial judge. In those circumstances the appellants claim failed. In my opinion the challenges to the trial judge's statement of legal principle fail. It follows that grounds | to 4 inclusive fail. GROUNDS OF APPEAL 3, 5, 7 AND 11 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".!8 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." 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. 17. (1966)66 CLR at 284; Worth v Glasohm (1952)86 CLR 439 at 453. 18. Appeal Book, page 823P. 14 UNREPORTED JUDGMENTS Grounds 3 and 5 thus fail. It is true that Mr John Crichton was referred to in the 1990 will. CL5 stated: "T 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". $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. 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 $325,0001.!9 In my opinion ground 7 fails. 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. In my opinion ground 11 fails. GROUNDS 6,8 AND 16 6. His 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. Regarding ground 6, his Honour noted the relationship of Mrs Crichton and Mr John Crichton.2° His Honour also noted the disposition to Mr Crichton and others under the 1988 will.2! There is nothing to suggest that his Honour did not have regard to these matters. Ground 6 fails. 19. Appeal Book, page 566, 152. 20. Appeal Book, page 918H. 21. Appeal Book, page 917H-Q. URJ SHAW v CRICHTON (Powell JA) 15 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. 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 $68,500.22 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. 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. Ground 8 fails. 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. 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. His Honour said: "Tt 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."23 22. Appeal Book, pageS 718, 816, 817. 23. Appeal Book, page 940. 16 UNREPORTED JUDGMENTS 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.24 There was abundant evidence before Bryson J to support a factual finding of variable personality. 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. 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. 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. 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. His 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. 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. 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. 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 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. 24. (1942) 66 CLR at 283-284. URJ SHAW v CRICHTON (Powell JA) 17 Leave to argue this additional ground should be granted. 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 "25 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.26 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. I would propose that the appeal be dismissed with costs. Appeal dismissed with costs. REPRESENTATION: COUNSEL: Appellant: DMJ Bennett QC / PP O' Loughlin Respondent: A Emmett QC / J Sexton SOLICITORS: Appellant: Stewart Levitt and Co Respondent: Lane and Lane 25. Appeal Book, page 933. 26. Edwards v The Queen (1993) 178 CLR 193 at 210-211.