New South Wales Supreme Court CITATION : Young v Yorkston; Estate of C E Young [2000] NSWSC 350 CURRENT JURISDICTION: Equity Probate List FILE NUMBER(S) : SC 108339/95 HEARING DATE(S) : 19 & 27 April 2000 JUDGMENT DATE : 27 April 2000 Peter Lawrence Young (P) Elizabeth Wendy Yorkston (D1) PARTIES : Lois Margaret Pennington (D2) Helen Rosalind Deck (D3) Lilian Olive Young (D4) David Hilton Young (D5) JUDGMENT OF : Hamilton J P Hallen SC (P) COUNSEL : M Willmott and Miss N Gilchrist (D1-3) J Wilson (D4 & 5) Church & Grace (P) SOLICITORS : J E Mills & Associates (D1-3) Holman Webb (D4 & 5) CATCHWORDS : EVIDENCE [64] - Admissibility and relevance - Opinion evidence - Expert opinion - Other cases - Handwriting - Whether evidence of psychiatrist with knowledge of characteristics of handwriting of persons with Parkinson's disease admissible to assist in decipherment of alleged testamentary instrument. LEGISLATION CITED : Evidence Act 1995 s 80 DECISION : Evidence admitted. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 27 APRIL 2000 108339/95 PETER LAWRENCE YOUNG & 1 ORS v ELIZABETH WENDY YORKSTON & 8 ORS The Estate of CHARIS ELSE YOUNG JUDGMENT HIS HONOUR: 1 There has been tendered on behalf of the first to third defendants a report of Dr Neil Yorkston concerning the handwriting in the document written by the deceasedd on 10 July 1992, which is propounded as a testamentary document in these proceedings ("the July 1992 document"). Dr Yorkston also expresses a view as to the deceased's testamentary capacity at the time of the making of the July 1992 document. The quality of the handwriting in the July 1992 document is such that only parts of it are decipherable by the uninformed eye. 2 The history of the tender of the report is as follows. Originally there was propounded a report prepared by Dr Yorkston of some 400 pages ("the old report") covering the same subject matter as the report now tendered ("the new report"), and evidence was taken on the voir dire relating to the old report. During debate upon the objection to the old report, it appeared that it had two vices. Without any undue disrespect to Dr Yorkston, the old report presented as somewhat disorganised and formless, and it was difficult to tell in the large document precisely what function different portions of it were playing, what Dr Yorkston's conclusions were, and, particularly, how he derived his conclusions from the large mass of material presented. Since the new report contains no new material, but is extracted from the old report, and does not suffer from that vice, it would seem that conclusions of apparent cogency, with the material to support them, were to be found in the old report - but finding them was not easy. More basically, the second vice of the old report, so far as the handwriting aspect of it is concerned, was that it not only set out to apply expertise gained from scientific method or from experience in deciphering the July 1992 document, but, intermingled with that, went a stage further and expressed views as to the English words and the meaning intended by the deceased in the irregular document which she, in her old age and frailty, created. 3 It was objected - in my view rightly - that this was impermissible, as it was an exercise not proceeding by way of expertise in the sense in which that concept is understood in the law of expert evidence. It was a function which any layman of ordinary intelligence and education could carry out and express a view on. As a result of these matters becoming patent in argument, Mr Willmott, of counsel for the first to third defendants, over the Easter adjournment, had the new report prepared. As I have already said, this was prepared by culling and arranging portions of the old report, not by the introduction of any new material. The new report does appear to be a document in which the witness effects a decipherment of the July 1992 document, and also, as I have said, expresses a view as to the deceased's testamentary capacity. Dr Yorkston is the husband of the first defendant, Elizabeth Wendy Yorkston, and, through his wife, has an interest in the result of these proceedings. He is, however, also a psychiatrist. He is - as acknowledged by at least one other expert witness in the case - an eminent psychiatrist, and is one with particular knowledge in the field of geriatric psychiatry and mental diseases and disorders of the elderly. 4 His new report is the subject of objection on the part of Mr Hallen, of Senior Counsel for the plaintiff. It is not objected to by Mr John Wilson, of counsel for the fourth and fifth defendants. As a result of that objection, evidence has been taken on the voir dire. That evidence includes - as agreed by all parties - the evidence taken on the voir dire in relation to the old report. It includes an affidavit of Dr Yorkston as to his experience in psychiatry generally, and, in particular, in relation to elderly patients, to Parkinsonism, and to the handwriting of elderly patients. It should be noted that, although there was opportunity to do so, there has been no cross examination of Dr Yorkston upon his evidence on the voir dire. The evidence shows that Dr Yorkston is a consultant psychiatrist at Stockton Hall Psychiatric Hospital, York, England, and a Professor Emeritus of Psychiatry at the University of British Columbia, in Vancouver, Canada. His medical qualifications include his original degrees at Sydney University; Fellowship of the Royal Australasian College of Physicians; Fellowship of the Royal Australian and New Zealand College of Psychiatrists; and Fellowship of the Royal College of Psychiatrists. He has engaged in studies, practice and academic endeavour in relation to psychiatry since 1960. In paragraph 14 of his affidavit he deposes that with every patient, he notes, amongst other things, the form and content of the patient's speech, and always looks for opportunity to study handwriting as an expression of a patient's reason, insight, and so on. He has been able to recognise the distorting effect of Parkinsonism on handwriting, and, on the basis of that knowledge, has been able to read handwriting which previously appeared to be illegible. 5 One of the two grounds of objection taken by Mr Hallen to the admission of the new report is that paragraph 14 of Dr Yorkston's affidavit is the only portion of his evidence which says anything about his actual experience relating to the writing of Parkinsonian patients and its decipherment, and is insufficient to establish either expertise in the scientific sense, or expertise through experience. However, two things must be said about that. The first is that that portion of the affidavit must be read in the context of the rest of the affidavit, in which Dr Yorkston deposes that he has worked with the elderly since the 1960's, before geriatric psychiatry was established as a subspecialty, and again in the 1980's, when he was Professor of Geriatric Psychiatry at the University of British Columbia. He deposes that he has had a great deal of experience with Parkinsonism, including the man made form of Parkinson's disease, which arises as a common side effect of conventional anti psychotic medication. He deposes that he has regularly taught medical students to recognise the symptoms and signs of Parkinsonism, and for over 20 years has taken a special interest in helping both medical students and doctors in post graduate courses to recognise the common motor effects of anti psychotic drugs, and particularly Parkinsonism. He has produced a series of video tapes, two of which feature some movement disorders, including Parkinsonism. In other words, the portion of the affidavit which, perhaps in very general terms, refers to his observation of Parkinsonian patients and their writing when possible, and to the decipherment of their writing, must be read in the light of the evidence of that long experience and academic study of the relevant matters. The second thing that is to be said about Mr Hallen's contention concerning the adequacy of the evidence is that, whilst paragraph 14 is in general terms, there was no cross examination to cut down in any way the experience which the doctor stated that he had in observing the handwriting of Parkinsonian patients and deciphering their handwriting. 6 In those circumstances, it seems to me that a sufficient expertise has been established for the doctor to give evidence concerning the decipherment of the handwriting of this particular lady, who is said to have suffered from Parkinsonian symptoms. Up to this stage of the case, I had taken it that it was undisputed that the deceased suffered from such symptoms. I am now told that that is not so, and the proposition is disputed on behalf of the plaintiff. However, there is evidence in clinical notes and from Dr Pennington that the deceased suffered Parkinsonian symptoms. The evidence of Dr Yorkston himself concerning the nature of the handwriting and his detailed analysis of it, provides further evidence of Parkinsonian symptoms in the deceased. This, it seems to me, provides sufficient evidence for the report to be tendered on the basis on which it is propounded, namely, that Parkinsonian symptoms were evident in the handwriting of the July 1992 document, and that the body of knowledge relating to that syndrome may be used to help decipher the writing. If, on all of the evidence, it appears at the end of the case that there cannot be a conclusion that the deceased suffered from Parkinsonian symptoms in July 1992, the portion of the report relating to the handwriting will lose its basis. The decipherment depends upon the application of the body of scientific knowledge gathered as to the characteristics of the writing of such people, arising from their motor disorder, and there is also an element of expertise by experience, arising from actually observing that handwriting and deciphering it in other cases. For those reasons, it seems to me that the portion of the doctor's report which provides a literal decipherment of the document together with a discussion of the processes by which that decipherment was carried out, is admissible. 7 The second objection that was taken to the report was that no decipherment should be allowed of a document avowedly written in English, albeit imperfectly. Mr Hallen conceded that there are cases in which a translation has been allowed to be given of coded words or expressions in wills, and that wills written in a foreign language may be translated. He says, however, that where a will is apparently written in English, any difficulties - whether with decipherment of the words, or the meaning of the words that appear - must be dealt with by the Court alone, and without any transcription by an expert of the words. He says that this is because all that is allowed in the other cases is an objective process of showing what coded or foreign words mean. In my view, this objection is not sound. I do not see why, where necessary, expert evidence of the requisite sort may not be allowed to provide a decipherment or transcription of an illegible or difficult document, albeit in English. All transcription or translation comprehends some subjective element. To what extent the process may be characterised as objective or subjective does not seem to me material. Provided that the process is one of decipherment of the words of the will, then it is permissible. What is not permissible by expert evidence, and is in the realm of the Court alone (save that in appropriate cases an expert may now, under s 80 of the Evidence Act 1995, express a view as to matters in issue or ultimate questions to be decided by the Court) is the interpretation which is to be placed upon the imperfect or perfect words of the document which the Court is called upon to construe or otherwise deal with. 8 The portions of the old report, which impermissibly essayed the latter function, seem now to have been removed. Furthermore, Mr Willmott avowedly puts forward the document, not as in any way providing a transcription which is binding upon the Court, but as a version created with the aid of Dr Yorkston's expertise which the Court may accept in whole, reject in whole, or, more likely, accept in part, and perhaps reject in some parts. In assessing Dr Yorkston's evidence in this regard, as in all other regards, despite his expertise and professional eminence, without any disrespect to Dr Yorkston, it will be necessary always to bear in mind that he is a person with an interest in these proceedings. 9 Dr Yorkston, in the report, also expresses views as to the deceased's mental state and capacity in July 1990. He never saw the deceased as a patient, but visited her on quite a number of occasions, and made personal observations of her. His assessment of her mental state arises from those observations, from other evidence concerning her state at the time which has been laid before him, and from his considerable expertise as a psychiatrist. I think it has not been argued before me that his evidence, in this respect, is not admissible for want of expertise. The assessment of this aspect, as of all other aspects, of his evidence, again will have to be made in the light of his interest in the proceedings. 10 The report of Dr Yorkston now tendered will be admitted into evidence and will be marked Exhibit 1D3. The question of the costs thrown away by the propounding of the old report in an unsatisfactory form, will be reserved and will be considered when the costs of the trial generally come to be considered. …oOo… 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.