New South Wales Supreme Court CITATION : Grace v Franke [2000] NSWSC 256 CURRENT JURISDICTION: Probate Division FILE NUMBER(S) : SC 101198 of 1999 HEARING DATE(S) : 8, 9 & 10 March 2000 JUDGMENT DATE : 4 April 2000 PARTIES : Neville Homes Grace v Coral Franke JUDGMENT OF : Master Macready at 1 COUNSEL : B. Skinner (P) C. Harris (D) SOLICITORS : Church & Grace (P) Conway MacCallum (D) CATCHWORDS : Succession. Wills Probate and Administration. Application for probate of codicil when testatrix suffered from an alleged delusion that a beneficiary under a will had stolen from the testatrix. - Held testatrix did not have testatmentary capacity. - Probate of codicil refused. CASES CITED : Re Griffith, Easter v Griffith NSWCA 7 June 1995 unreported at 10 - 13. DECISION : Paragraph 37 - 1 - THE SUPREME COURT OF NEW SOUTH WALES PROBATE DIVISION MASTER MACREADY Tuesday 4 April 2000. 101198 OF 1999 NEVILLE HOMES GRACE v CORAL FRANKE JUDGMENT 1 MASTER: In these proceedings the plaintiff seeks that probate be granted to him of the will dated 31 March 1998 and a codicil dated 26 May 1998 of the late Mae Louise Thomson. The defendant by a cross claim filed 7 May 1999 opposes the grant of probate of the codicil dated 26 May 1988 on the basis that at the time of making the codicil the testatrix lacked testamentary capacity. 2 Under the will made 31 March 1998 the testatrix gave one half of her estate to the defendant and the other half to be shared equally between her friends Geraldine Gallagher, Judy Harrison, Richard Fraser, Andrew Harper and Cynthia Rogan. The defendant had been a friend of many years standing of the testatrix and had looked after her for many years. Under the codicil made 26 May 1998 the testatrix revoked the bequest to the defendant and directed that that such one half share of the estate be paid equally to Geoffrey Gallus and Lois Gallus. 3 Although the testatrix was suffering from a mild form of dementia at the time she made her will in March 1998 there is no suggestion from either party or in the medical evidence that she did not have the appropriate testamentary capacity. The lack of testamentary capacity in this case focuses upon the time when the testatrix executed the codicil on 26 May 1998. In particular it was suggested in evidence and submissions that the testatrix was suffering at the time she made the codicil from a delusion that the defendant had stolen from her. The evidence in the case is clear that this fact did not happen. 4 It is useful to deal with some of the general history before turning more closely to the matters at issue. The testatrix was born in 1906. The testatrix and her husband had no children of their own and in 1980 she purchased a home unit at Oceana Apartments at Elizabeth Bay Road, Elizabeth Bay. The defendant owned a unit in that apartment block. 5 In May 1988 the testatrix's husband died and thereafter the defendant and her husband began to assist the testatrix with shopping, maintaining her car and similar matters. In 1990 the testatrix had some eye surgery as a result of which the defendant nursed her for a while and also helped when she had another accident in which her leg was caught in a bus door. The defendant would change dressings and generally attend to her. The defendant herself was a retired nurse having spent many years looking after older people in hospital. By 1994 the testatrix started to have more problems and would often fall over and would call upon the defendant for help. She fractured her left femur and was in hospital for a time. The defendant visited her there and attended to her washing. In July 1995 the testatrix made a will leaving the defendant half of her estate. The testatrix's difficulties with her health continued during 1995 and 1996 when she fractured her right femur. As a result of the decline in her health the testatrix was admitted to Maroubra Junction nursing home in October 1997. In November 1997 she gave the defendant a Power of Attorney and in December instructed the defendant to clean up and sell everything in her home unit. This involved a large amount of work on the part of the defendant. She had items which the testatrix wanted sold first inspected by a fine art dealer to see if they were of any special value which they were not. She then arranged for Lawsons Auctioneers to auction them. A full report of the auction was available. 6 On Christmas Day in December 1997 the defendant and her husband, no doubt at great personal inconvenience, acceded to the testatrix's demands to be transferred to the Edina Nursing Home at Waverley on that day. 7 On 2 February 1998 the defendant ascertained that apparently the testatrix was questioning the actions of the defendant in selling the various contents of the testatrix's home without consulting her first about her concerns. The defendant wrote to the testatrix complaining about this and offering to have her actions audited. On 13 February 1988 the testatrix wrote an apologetic letter. Apparently the testatrix and the defendant got over this difficulty which had arisen at this time. Thereafter the defendant continued to look after the testatrix's financial affairs including giving some instructions at the testatrix's request to Mr Brian McCarthy, solicitor, for a new will. Ultimately Mr Grace was contacted on 16 March 1998 by the testatrix concerning a new will and he visited her on 24 March 1998 to take instructions. On 31 March 1998 the will of the testatrix was executed. 8 Thereafter there was assistance from the defendant and her husband, for example, with the purchase of a mobile phone for the testatrix. By the end of April 1998, however, the testatrix was making comments to her treating doctors which referred the upset caused by the incidents at the beginning of February. The timing of matters thereafter assume some importance and it is worth noting that Dr Tedesco was the doctor who was treating the testatrix who by this stage had become difficult in the nursing home. On 17 April 1998 Dr Tedesco referred the testatrix to a Dr Draper an expert psychiatrist experienced in dealing with elderly patients for assessment of depression. Dr Draper was a senior staff specialist in pyschogeriatrics and has worked in that area for 14 years. On 23 April Dr Draper saw the testatrix and prescribed Zoloft an anti-depressant drug. On 11 May there was a further referral to Draper and on 12 May the testatrix was seen by Dr Tedesco. The testatrix was suffering from urinary problems and underwent a catheterisation. At this stage she was taken off Zoloft. On that day Mr Grace had also gone to see the testatrix concerning her will. He was warned by Dr Tedesco that the medication that the testatrix was taking made it unlikely that she would have the appropriate understanding in respect of the will. The defendant was away from Sydney between 7 and 13 May having gone on a holiday. When she returned on 14 May the testatrix accused her of having taken all her money and having spent it all on a trip to Germany. This was extremely upsetting to the defendant. On 14 May 1998 after the visit by the defendant to the testatrix, Dr Draper visited and noted the upset and the testatrix's condition. I will come back to the detail of his notes in respect of the conclusions he formed at that time. He thought it would be unwise for the testatrix to change her will at that stage. 9 On 19 May 1998 the defendant having thought about it for some time, wrote a letter to the testatrix in which she accused her of making wrong accusations in respect of matters that have been discussed. Dr Tedesco visited her on 19 May and he did not know about that letter. On 20 May the hospital notes record that the testatrix was upset by a "nasty" letter. On 26 May the testatrix was seen by Dr Tedesco. Unknown to him Mr Grace had visited and the codicil was executed on this day in the presence of Mr Grace and his partner. 10 On 10 June Dr Tedesco saw the testatrix again and on 11 June the testatrix was seen by Dr Draper, the psychiatrist. On 2 July there was notice served in respect of a Guardianship Tribunal application made by the defendant which application came on to be dealt with in due course. Given that a new attorney had been appointed by the testatrix the Board decided for this reason not to make an order. In due course the testatrix died on 10 January 1999. The defendant had no further contact with the testatrix after writing her letter of 19 May 1998. 11 It is useful to record the legal principles which are applicable to a case such as the present. There is no disagreement about these principles and a useful summary of them is set out in a judgment of Gleeson CJ with whom Handley JA agreed in Re Griffith, Easter v Griffith NSWCA 7 June 1995 unreported at 10 - 13. "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted ( Worth v Clasohm (1952) 86 CLR 439). This formulation of the onus of proof, well established by authority and not in dispute in the present case invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However, where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton v Knight ([1873] LR 3 P and D 64 at 69). Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim and a judgment which is affected by a disorder of the mind. The traditionally accepted formula for determining testamentary capacity is that stated by Sir Alexander Cockburn CJ in Banks v Goodfellow ((1870) 5 QB 549, at 565): 'It is essential to the exercise of (testamentary) 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 - and that no insane delusions 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.' A detailed analysis of the manner in which the courts have approached the practical application of that formula, including the rules as to onus of proof, is to be found in the judgment of Powell J in Re Hodges, Shorter v Hodges (1988) 14 NSWLR 698. Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. In Harwood v Barker (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions. (See also Batton Singh v Amirchand [1948] AC 161). Nevertheless, the courts have regularly discussed this subject in a manner which tends to focus upon the presence of delusions as the indicator of mental disorder. In Smith v Tebbitt (1867) LR 1 P and D 354, 398 at 402-3 Sir J P Wilde asserted that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, ie delusions. This approach is reflected in Cockburn CJ's formula quoted above. By a delusion is meant a 'fixed and incorrigible false belief which the victim could not be reasoned out of' ( Bull v Fulton (1942) 46 CLR 295 at 339). As Santow J observed, psychiatric knowledge has developed a great deal since those early formulations of the relevant legal principles. There is a degree of artificiality in seeking to force all manifestations of 'insanity' under the rubric of delusion. Where the existence of a material delusion can be shown, then the relevance of that to an issue as to a person's ability to comprehend and appreciate the claims upon his or her bounty may be clear and direct. For example, in Timbury v Coffee (1941) 66 CLR 277 an alcoholic testator suffered hallucinations and believed that his wife was unfaithful. This influenced his testamentary dispositions, which were held invalid. The attention paid to delusions is understandable, but the law must be sufficiently flexible to take account of developments in psychiatric understanding. The critical question, in a case such as the present, concerns mental capacity to comprehend and appreciate the claims upon one's bounty. Where an alleged delusion concerns a fact, or state of affairs bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid. In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts (such as a husband's belief that his wife is unfaithful). Delusion may also consist in, or involve, a value judgment where 'the judgment is so extreme as to defy credibility'. (See the definition in the Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed, Revised (DSM-III-R), 1987, issued by the American Psychiatric Association and cited by M Spitzer, 'On Defining Delusions' (1990) Comprehensive Psychiatry, Vol 31, No 5 at 395). In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion." 12 The present case clearly concerns delusions under which the testatrix was said to be suffering at the time of making her codicil. It is necessary to first note the evidence called by each side on this aspect. 13 The plaintiff called no medical evidence but called both the Executor Mr Grace and his partner who gave evidence of their observations of the state of the testatrix at the time the will and codicil were executed. There was also evidence from attesting witnesses. The defendant for her part called evidence from two doctors. The first was Dr Tedesco who was the testatrix's treating general practitioner who had had some experience in the area. The second was from Dr Draper who as I have indicated earlier was called in by Dr Tedesco initially to treat the depression from which the testatrix was suffering. Both these doctors expressed the opinion that on 26 May she lacked the relevant testamentary capacity as a result of the delusions from which she was suffering. 14 It useful to first note the delusions which are the heart of the matter. They were referred to in several places in the evidence. The first concerned the incident in early February. The testatrix on that occasion accused the defendant of having "sold everything too cheaply. You should have advertised it and sold it from the unit or you should have gone to second hand shops and sold individual pieces at the best price you could get." This was not the ultimate delusion which the defendant relied upon but it perhaps led up to the final delusion. This is referred to by Dr Tedesco when on 12 May he recorded that the testatrix said, "Coral and Hans have taken my money and they have gone off to Germany". At that stage Coral and Hans were away on a holiday in Australia. When the defendant returned on 14 May the main statement made by the testatrix to the defendant was, "You have taken me down for everything I ever had and you've cleaned me out of all of my money and left me penniless". The matter was pursued further by Dr Tedesco on 19 May when he asked her, "What makes you think that Coral and Hans have taken your money and gone to Germany?'" The reply from the testatrix was, "It suddenly came to me. I worked it out and you see this knee, now I've had ligament damage." Importantly Dr Tedesco indicated that such thoughts of taking the testatrix's money had never been indicated prior to her being on Zoloft which she started on 23 April. On 26 May Dr Tedesco noted that the defendant said, "The night staff are acting under Coral's instructions to tie me down in bed." 15 Given the nature of the statements made by testatrix it is necessary to see whether there may be any basis in fact for her holding these beliefs. So far as the incidents in February are concerned, the matter really concerns something which is not central to the real delusion which had developed at the time of the execution of the codicil. In any event I note that the defendant appears to have taken necessary precautions such as having someone check the goods before they were auctioned to see if there might have been something of value. So far as the allegations that the defendant had taken her money the clear evidence before me is that this did not happen. Incidentally the defendant did not go to Germany with her husband as the testatrix believed. There was of course no suggestion in the evidence that in fact the defendant had given instructions to the night staff to tie down the testatrix in bed at night. The major delusion, namely, that the defendant had stolen all the testatrix's money clearly is material to the issue as to whether the testatrix had the ability to comprehend and appreciate the claims on her bounty. 16 In careful cross examination counsel for the plaintiff explored the basis of Dr Tedesco and Dr Draper's opinions and concentrated on the change of circumstances between 12 May and 11 June. 17 With regard to Dr Tedesco the point was brought out that he did not have appropriate psychiatric qualifications. Accordingly it was submitted that his evidence was limited in respect of the view which he expressed. He had, however, experience in the area and his observations of the testatrix are relevant to support Dr Draper's opinion. 18 So far as Dr Draper's conclusion was concerned, there were a number of criticisms of the reasoning process by which he arrived at the view that as 26 May the deceased lacked the testamentary capacity. It was suggested in submissions that given the events which had occurred between the 11th and 26th May that the reason for the change in the will was not because of any delusions but simply a natural reaction by the testator to actions taken by the defendant. These included:- 1. The sending of the February letter. 2. The absence of the defendant on holidays between 6 and 13 May when she saw her aged mother in Queensland. 3. The sending of the letter of 19 May by the defendant. 4. The service of the Guardianship Board application made by the defendant on 25 May. 19 In the context of the different visits to the deceased it is useful to note a number of matters about those visits. The first visit was by Dr Draper on 23 April and it is apparent from the hospital notes and, indeed, accepted by him there was no question of the testatrix suffering from some delusions at that stage. He was called in to treat depression and prescribed Zoloft which was given to her. On 12 May I have already referred to the evidence Dr Tedesco gave of her paranoid ideas . This reference is included in the notes that he made at the nursing home and the notes also referred to the other problems, namely, the urinary retention problems which required a catheterisation which was performed. The plan for her then treatment was to cease Zoloft and have Dr Draper review the testatrix. In his notes on the file on 14 May Dr Draper referred to the alleged acute paranoid reaction over the past few weeks. He referred to the fact that the testatrix was suspicious and said that it was difficult to know how much of it was based on realistic worries and how much was delusional as her ideas were difficult to test. He suggested that if she clearly was delusional then she may benefit from a low dose of Risperidone. He noted that Zoloft may cause paranoia in susceptible people. He concluded, "Given her current beliefs regarding her friends I don't think that it would be wise for her change her will (and I'm not sure whether other recent changes are based on paranoid beliefs or a realistic appraisal of the situation)". In his own notes on 14 May Dr Draper referred to the fact that the testatrix was "clearly delusional a few days ago and not overtly now but still suspicious". He commented that it was difficult to know whether her concerns regarding finances are based on reality but he said it seemed likely that they are not. He notes the suggestion of Risperidone if she did not settle soon and he also notes that it should be tried to be avoided if possible. 20 In the notes of 19 May the Dr Tedesco referred to the evidence to which I have given above on this day and indicated there was exhibition of paranoid thoughts towards staff. On 26 May Dr Tedesco's notes in the file referred to the behavioural problems persisting and makes reference to the evidence I have set out above about the night staff acting under the defendant's instructions to tie the testatrix into bed. His plan for her management included using Risperidone if the behaviour worsened. It had in fact not been prescribed during the period from its first suggestion on 14 May and 26 May. 21 On 11 June Dr Draper saw the testatrix again. He noted she seemed more content but there was mild cognitive impairment but not sufficient to warrant a Guardianship Board order provided she had someone else to manage her affairs. He noted, "Mild paranoia (?) regarding her friend Coral persists". His reference to the question mark was, no doubt, as to whether or not the objective fact of stealing had been established. 22 The first step in the process of evaluating the evidence of the doctors is to see whether there is a reasonable basis for Dr Draper's view that, as at 26 May, the testatrix was suffering from a delusion. He had had the benefit of seeing her on 14 May and again on 11 June and based his conclusions on his observations of her on those two days. Assuming the falsity of the subject matter of the delusion he was of the view that she was deluded on 26 May. He did not have the benefit when expressing that opinion of access to the clinical notes at the hospital on 26 May which recorded other delusional beliefs of the testatrix concerning the defendant. The fact that Dr Draper expressed his opinion on the basis of an assumed falsity of the facts alleged by the testatrix is not of any relevance. The falsity is a matter for my determination in this matter. 23 It was suggested that the psychosis from which the testatrix was suffering on the 14 May could have settled by 26 May when she made the codicil. In cross-examination the suggestion was made in these terms:- Q. Of those three occasions it was on 14 May that you could say of Mrs Thomson that she was psychotic in addition to any problems which related to dementia? A. That is the only occasion in which frank delusions had been occurring in a short time prior to me seeing her and probably on the day, from the evidence you provided me today. Q. Whether those delusions resulted in a psychosis continuing up till 26 May 1998 is a matter of speculation on your part? A. It's a matter of speculation to the extent that they would be present. It's - I suppose, yes, speculation but in these types of situations, the beliefs do tend to take quite a long time to settle, if they ever do settle. Q. Well, so far as that proposition is concerned you are not in a position, I take it, to say what effect the cessation of Zoloft had after 12 May - that is, what the cessation of Zoloft had on 12 May, what effect that had by 26 May? A. "Effect" in what sense of the word? Q. Well, the implication, if any, of Zoloft on the exacerbation or making florid of the psychosis? A. It's hard to know with any factor in a person of this age group with the multiplicity of problems how long the removal of a potential aetiological factor will take for the symptoms to settle down. It can be days, weeks, months. Q. And the same could be said of the effects of the catheterisation on 12 May also? A. Exactly. Q. On 11 June when you visited Mrs Thomson there was no evidence of psychosis present, was there? A. She was still very suspicious in the interview and I've noted that I couldn't find any definite delusions. Q. So that the issue of whether Mrs Thomson was suffering from delusions on 26 May is an issue of speculation? A. It's an issue of speculation based upon clinical judgment and knowledge of the natural history of these types of conditions. 24 The subject was returned to later when the following cross-examination occurred:- Q. But you accept, I take it, that elderly people can disinherit someone for capricious reasons without any apparent justification and do so without having some lack of testamentary capacity? A. Well, in a person who has testamentary capacity, clearly that's the case. Q. The difficulty in this case is that you do not know whether she was suffering from delusions on 26 May, do you agree with that? A. I mean, the question - it's not a Yes or No answer. It's that in the natural history of the type of illness that Mrs Thomson had it's more - it's likely that her symptoms may vary from one point of day to the next. Unless a person who understood her mental condition was actually present at the very time that she made a will and would question the reasons for doing everything, nobody would be certain one way or the other . All we can say is that we have a person who over a period of some months had demonstrated a lot of beliefs that her friend had been taking her possessions from her, abusing her finances, and that these beliefs had persisted, as I say, for quite a few months, in the exact period that she changes her will. Now I feel that in that circumstance the chances are that it's very unlikely that she is going to have a clear moment where she doesn't have her actions influenced by those beliefs. 25 The evidence given by the lay witnesses does not assist in determining whether the testatrix was suffering from a delusion. In particular Mr Grace, who was on notice of the doubt about her capacity, merely relied upon the testatrix's statement that she did not want to have anything more to do with Coral Franke. He made no enquiries as to why that was so and thus did not explore the possibility of such a delusion. He conceded that he gave no consideration as to whether she was suffering from a delusion. 26 The clear view of Dr Draper that the testatrix was suffering from the delusion on 26 May has a solid foundation. The effect of Zoloft and the catheterisation provide a clear explanation for the deluded state that existed on the 14 May. Dr Tedesco's observations on 19 May support the continued existence of the relevant delusion and those on 26 May provide evidence of another delusion concerning the defendant on that day. Dr Draper's observations on 11 June are not contrary to his belief as to the state of the testatrix on 26 June. 27 The explanation which is suggested may be the appropriate one involves the elements to which I have referred to above, namely that:- 1. The testatrix took a dislike to the defendant as a result of what was said to her in the February letter. 2. The testatrix reacted badly to the absence on holidays of the defendant. 3. The testatrix reacted badly to the receipt of the letter of 19 May. 4. The testatrix was adversely affected by receipt of the Guardianship Board application on 25 May. 28 So far as the first matter is concerned, clearly, it did prey upon the testatrix's mind. She referred to it later and showed the letter to Dr Draper when he first came and he has referred to it in his report. The matter worried the testatrix and whether she was right or wrong, of course, is irrelevant. As has been pointed out on many occasions decisions can be made by a testatrix on an unwarranted or unnatural basis and such actions do not necessarily give any indication of a lack of testamentary capacity. 29 Regarding the second matter there is reference in the notes to the testatrix reacting badly to Coral leaving for holidays.. With regard to the third matter there is also reference in the notes on 20 May 1998 that the testatrix had said to a visitor that she had received a letter the day before that was "quite nasty". Obviously she reacted badly to it. Whether this was appropriate or inappropriate, is not the question. For the moment I am prepared to assume it would have upset the testatrix as would have the receipt of the application to the Guardianship Board. 30 Clearly these matters of themselves could be adequate explanation as to whey a testatrix might react in a way which led to the removal of the defendant as a beneficiary. However, the failure to take account of the explanation was put to Dr Draper in cross examination. The relevant passage is as follows:- SKINNER: Q. It is correct that so far as your report dated 22 March 1999 is concerned that you have not had the benefit of reading an account of the solicitor as to what occurred on 12 May or on 26 May? A. I have no knowledge what happened on those days. Q. You have no knowledge of persons who might have had a claim on the bounty of the deceased other than Mrs Franke? A. That is correct. Q. And you have said quite candidly to the Court that you made no assessment on or around 26 May as to the testamentary capacity of Mrs Thomson? A. That is correct. Q. In order to conclude, as you have, in your report of 22 March 1999 that delusions of Mrs Thomson relating to Coral Franke were of sufficient severity to mean that she did not have testamentary capacity requires you to have taken into account any cogent considered and reasonable reasons that might have been given by Mrs Thomson when she made her will? Do you accept that proposition? A. No. I don't entirely accept that proposition. I mean, I'm not ever to be privy at the time a person is making a will - unless I'm sitting in it at that point in time - of the exact reasons that a person would give to say any particular thing at the moment they made a will. All I can state is that looking at the entire history from my first contact with her and some information provided to me about preceding months and right through to my last contact with her in June that it would be entirely consistent that she suffered delusions relating to Coral Franke that would have altered her capacity to understand Coral Franke's call on her in terms of a will. Q. Do you accept this proposition: That Mrs Thomson might well have been mistaken in her attitude to Mrs Franke and that all she has done is to substitute Mrs Franke for someone else with no reasons for so doing? A. Could I clarify what you mean by "mistaken"? Q. That she, for capricious non-justified reasons, simply changed her mind? A. Not in the context of everything that had been happening with her clinically in that period. She had clinically been psychotic, delusional. Now if one wants to argue that a person who has delusions about things that are happening to property that that may have a capricious element to the psychosis, that's possible. The two can go hand in hand but it doesn't alter the underlying mental disorder that's occurring due to the psychosis. 31 I am prepared to accept the view expressed by Dr Draper and his rejection of the suggestion. 32 I was impressed by Draper's careful evidence and I am satisfied that the testatrix was on 26 May suffering from a delusion that the defendant had stolen from her. 33 The question which next follows is whether in the circumstances of the case the delusions might be material to determining her mental capacity. In this respect one has to appreciate some of the background which I have already recounted above. 1. That includes that there had been a long friendship over some 18 years between the testatrix and the defendant. 2. The testatrix had no relatives who were close to her and no immediate family. 3. It was the defendant who had devoted a substantial amount of time to assist the testatrix during her lifetime before she reached the unfortunate age when she became difficult due to the onset of dementia. 4. She was probably the closest friend of the testatrix and a major force in the testatrix's life. 34 Given these circumstances a delusion that the testatrix believed that the defendant was stealing from her would be extremely material to whether or not the testatrix could comprehend and appreciate the claims upon her bounty. It was put by Dr Draper in these terms:- Q. The delusional beliefs to which you refer, were they destructive of her capacity to make a new will on 26 May in the sense that were those delusional beliefs from your observations such that she would not understand, firstly, what property she owned? A. I don't believe that they necessarily affected her knowledge of her property. Q. Would they have had any affect upon the class of persons who she might consider leaving her property to? A. Well, that's the very area in which they do affect that because if she has developed delusions about a friend that don't have any basis then they have altered her capacity to make a valid will based upon what has actually occurred in her life. Q. Would the delusions to which you refer have any affect on her understanding that she was making a will? A. No, they would not necessarily affect that. 35 This is a case where the plaintiff obviously relies upon presumptions flowing from the execution of the will and the evidence from those lay persons who witnessed the execution. To the contrary are the opinions of the doctors and in particular Dr Draper whose views, in my opinion, have not been shaken. There was a submission that the failure to administer Rispirodone indicated that the doctors were not really concerned about the existence of the psychosis. The use of that substance seems however to have been considered by Dr Tedesco as a matter of last resort. 36 However, more importantly the onus of proof rests clearly on the plaintiff. Having regard to the evidence which is before me and my acceptance of evidence of Dr Draper I am not satisfied that the testatrix had the necessary testamentary capacity at the time of execution of the codicil on 26 May. 37 Accordingly, in these circumstances I propose to grant probate in respect of the will of 31 March 1998 and refuse probate in respect of the codicil. The parties may bring in short minutes and make submissions on the question of costs. Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.