READ v CARMODY and ANOR [1998] NSWCA 182

READ v CARMODY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER; POWELL and STEIN JJA 21 November 1997, 23 July 1998

[1998] NSWCA 182

Wills Probate and Administration — Wills — Testamentary capacity — Soundness

of mind memory and understanding — Elderly testator — Disinherited niece previously provided for in earlier Wills — Allegedly because affected by "non insane delusions" — Or because of diminished cognition or memory.

Meagher JA I agree with Powell JA.

Powell JA This is an appeal from a Judgment delivered, and orders made, by Brownie J on 18 August 1995, on which day his Honour dismissed the proceedings which had been brought by the Appellant, in which proceedings the Appellant had sought (sub silentio) to have revoked a grant of Probate in Common Form of a Will made by one John Wilson ("the deceased") on 5 February 1993, which grant had been made by the Registrar in Probate on 13 July 1993, and sought instead, (again sub silentio) a grant of Probate in Solemn Form of one or other of three earlier Wills made, or said to have been made, by the deceased, those earlier Wills having been made on 3 February 1993, 11 December 1992 and 14 July 1988.

Although, in the Amended Statement of Claim which was filed on behalf of the Appellant in the proceedings, the attack upon the Will made on 5 February 1993 was based upon the deceased's alleged lack of testamentary capacity - said to be due to (inter alia) a combination of cognitive defects and overwhelming emotional distress - and the fact that, so it was alleged, the deceased's execution of the Will was procured by the undue influence of the Second Respondent - a concept of which the draftsman of the Amended Statement of Claim, in common with many members of the legal profession, clearly has little, if any, comprehension (see, for example, Winter v Crichron!) - and although, on the hearing of the appeal, counsel for the Appellant seemed determined to assert that the deceased's alleged lack of testamentary capacity was due to two material - "non insane - delusions" - on the part of the deceased - the phrase "non insane delusions" as I have on at least one prior occasion (Shaw v Crichron2) had occasion to point out, is an oxymoron, while the phrase "insane delusions" is a tautology - since delusions are pathognomonic of psychosis - in the end, the question which Brownie J was called upon to determine was whether, by reason of certain facts which the Appellant sought to establish, and upon which he sought to rely, it appeared that the deceased at 5 February 1993 no longer retained testamentary capacity. Bearing in mind that, although seeking to persuade Brownie J to the view that the deceased no longer had testamentary capacity on 5 February 1993, the Appellant nonetheless sought to propound, and to have a