Carr v Homersham

1. [1]

   BASTEN JA: On 25 September 2014 Beryl Lee Hordern (the testator) died after some years in a nursing home in Elizabeth Bay. On 5 April 2004 she had signed a will leaving the whole of her estate to the appellant, Cynthia Marie Carr. A little more than two years earlier, on 2 December 2001, Ms Hordern had signed a will leaving the whole of her estate to her niece, Ann Richardson.

2. [2]

   On 23 February 2016 Ms Richardson commenced proceedings in the Equity Division seeking a grant of probate with respect to the 2001 will. She did so on the basis that, at the time of signing the 2004 will, the testator lacked testamentary capacity.

3. [3]

   In a judgment delivered on 13 June 2017 the primary judge, Robb J, upheld the challenge to the validity of the 2004 will and granted probate to Ms Richardson of the 2001 will. [1] Ms Carr appealed from that judgment.

4. [4]

   The 2004 will had two effects. First, by revoking the 2001 will, it undid the gift of the testator’s estate to her niece, Ms Richardson; secondly, it effected a testamentary gift of the whole of her estate to her friend and carer, Ms Carr.

Testamentary capacity

1. [5]

   Testamentary capacity is not a statutory concept but is derived from the case-law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. [2] The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely: [3]

2. [6]

   The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include “disorders of the mind” and “insane delusions”. Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator’s normal capacity for decision-making.

3. [7]

   The first affirmative element was not in dispute, it being accepted that the testator fully understood the nature of a will and how it worked and, through her instructions and execution of the will, approved the document in fact presented for probate as her last will and testament.

4. [8]

   The second element of testamentary “capacity” appears from the case-law not to be so much a question of capacity as a question of knowledge and understanding of the facts. No high level of precision is required to be demonstrated in relation to the testator’s knowledge of her property as at the date of execution of the will. [4] The trial judge was satisfied that she had a sufficient understanding of her assets and that finding has not been challenged.

5. [9]

   The third affirmative element may properly be understood as involving capacity. As noted by the primary judge, Powell J in Re the Estate of Hodges [5] described this element by reference to a passage in the opinion of Erskine J in Harwood v Baker, [6] dealing with a testator who had left all his property to his wife and excluded all other relations from any share of it. Erskine J said the issue was “whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property”.

6. [10]

   Erskine J further stated:

7. [11]

   As explained by Macfarlan JA, the facts in the present case raise little doubt as to the capacity of the testator in these terms. She understood that she was excluding her niece, and that she was benefitting Ms Carr. She also knew that she was not leaving any property to her nephew. She believed that she had good reason for taking each step. The exclusion of her niece was explained on the basis that she had made disgraceful comments about her mother (the testator’s sister) and had no financial needs; her nephew was merely described as undeserving. The preference of Ms Carr was based on her friendship over some years and her assistance as a cleaner and carer.

8. [12]

   In the language of Harwood v Baker, the question is not whether these choices were improper or unjust, but whether they (together with other evidence) demonstrated a lack of capacity to recognise moral claims and, if more than one, weigh them and choose between them.

9. [13]

   Although the trial judge placed some weight on the fact that gifts to the testator’s niece were natural and appropriate (she was a person with a claim on the testator’s “bounty”), the exclusion of the niece in favour of Ms Carr was not irrational. Rather, the whole case turned upon whether the primary reason for excluding her niece was a false belief as to the niece’s conduct.

10. [14]

    A false belief, by itself, is not sufficient to warrant a conclusion that the testator lacked testamentary capacity. The case-law affirms that the false belief must be in the nature of a “delusion” and be of a kind to indicate unsoundness of mind. These concepts were developed in Re Estate of Griffith (dec’d); Easter v Griffith [7] by Gleeson CJ, with whom Handley JA agreed. In a lengthy exposition, the Chief Justice stated the principles in the following terms: [8]

11. [15]

    The reasons of the Chief Justice contain a number of propositions of present relevance. First, testamentary incapacity may be established by a mental disorder which does not involve delusions. In the present case, there was evidence that, in March 2004, the testator was suffering from dementia. Dementia involves a decline in cognitive faculties and memory but, as Dr Phillips, a consultant psychiatrist, noted, such deficits are not necessarily indicative of a lack of testamentary capacity. It is clear that the testator remembered that she had a nephew and a niece (there was no suggestion she had any other relevant blood relatives), she knew her existing will left her property to her niece, and she knew precisely whom she wished to leave her property to, and why. If an established mental disorder does not necessarily demonstrate testamentary incapacity, other indications, including delusions, may need to be invoked.

12. [16]

    The second proposition deriving from the Chief Justice’s analysis relates to the distinction between objectively verifiable facts and evaluative judgments. The former category is identifiable because “its falsity is capable of objective determination”; [10] this is the criterion of distinction. However, some “facts” are not readily falsifiable and some judgments can readily be characterised as irrational.

13. [17]

    The third proposition is that even where there is something which may be described as a fact, belief or state of affairs, whether it is false or not may depend upon the manner in which it is identified. Thus, in the present case, the testator may have been correct in thinking that her niece had behaved in late 2003 in a manner which caused her great displeasure. On the other hand, the testator may have forgotten the subject matter of the dispute. It will be necessary to consider which is critical when determining a question of testamentary incapacity.

Assessment of evidence

1. [18]

   Bearing these considerations in mind, it is necessary to return to the nature of the testator’s mental condition and the symptoms she exhibited.

2. [19]

   So far as the relevant delusion was concerned, there were, as counsel for the appellant noted, but two pieces of evidence which established the challenged belief. The testator’s solicitor, Mr Noel Bracks, gave evidence that he had questioned her about being sure that she wished to leave everything to Ms Carr. She said she was sure, describing Ms Carr as “my only real friend.” Mr Bracks pressed, noting that she had a niece overseas. The testator responded: [11]

3. [20]

   The other evidence came from Ms Carr, who was present when the solicitors came to the testator’s apartment to witness her execution of the 2004 will. Her affidavit stated: [12]

4. [21]

   There were three elements to this explanation, adverse to Ms Richardson. They were (a) the complaint that she had spoken ill of her own mother, for which she was reprimanded, (b) the failure to visit or inquire as to the testator’s wellbeing after the dispute, and (c) absence of need.

5. [22]

   As to (a), the respondent did not deny that there had been a dispute. It related, according to Ms Richardson’s affidavit and evidence, to a request in November 2003 that she (Ms Richardson) make inquiries of the Euthanasia Society as the testator was intending to arrange for euthanasia. Ms Richardson stated: [13]

6. [23]

   As to (b), Ms Richardson did not take issue with the assertion that she had not remained in contact, or inquired as to the testator’s wellbeing, after November 2003. Nor, as to (c), did she challenge the proposition that she was not in need.

7. [24]

   The evidence of dementia was originally acquired, not for the purpose of determining testamentary capacity, but because a friend of the testator (Ms Shelley Sayes) had visited her and raised a concern with an aged care assessment team as to whether the testator was fit to manage her own affairs. A social worker, Ms Julie Lewin from Waverley Aged Care Assessment Team (ACAT), visited the testator on 27 February 2004 and administered three tests. The test considered most significant was a Mini Mental State Examination (MMSE) on which the testator scored 19/30, indicating “a moderate dementia.” Ms Lewin’s report, dated 18 June 2004, was prepared for an application to the Guardianship Tribunal for a financial management order and a guardianship order, after the testator had fallen in her home and was in hospital.

8. [25]

   The MMSE appears not to have been available to any of the persons who gave evidence before the Court, nor was it in evidence itself. There was no evidence that a particular score on the test had direct relevance to assessment of testamentary capacity.

9. [26]

   Dr Phillips was provided with what appeared to be the ACAT assessment form prepared by Ms Lewin on 27 February 2004. In a table of “Cognitive Behaviour/Psychological Aspects” the box for “regularly” was ticked for short and long term memory problems, and the box for “occasionally” for “at risk behaviour”, “hallucinations/delusions” and “confusion”.

10. [27]

    At Ms Lewin’s request, Dr Beveridge from St Vincent’s Hospital visited the testator at 4pm on Monday, 8 March 2004 and prepared a report. The report contained little recounting of actual conversations, but proceeded largely by reference to generalities and innuendo, based on information which in some cases was not sourced. There was evidence that the testator consumed significant quantities of whisky. She had a glass of “Bourbon” poured when Dr Beveridge arrived. The doctor said that “she had had a scotch before I arrived and poured one during the interview but was not appearing inebriated.” (He was challenged in cross-examination as to how he knew what she had had before he arrived, for which he had no real answer. [14] ) Despite the comment as to her “not appearing inebriated”, his report described her as “quite disinhibited, somewhat garrulous and very tangential” and referred to “her rambling discussion” about “people trying to get at her”.

11. [28]

    Dr Beveridge thought that the testator had greeted him “warmly” and had not been “particularly interested in my identification”. The evidence demonstrated that when he arrived at the building (no doubt before he entered her apartment) the testator had rung Ms Carr to ask her to come immediately. Dr Beveridge said that when Ms Carr arrived she was “surprised to see me”, which is implausible. (Dr Beveridge did not seem to know who Ms Carr was.)

12. [29]

    Curiously, the report also referred to the testator having had “one significant fall some time in the last year for which she attended Sydney Hospital after she fell off a ladder.” The reference is curious because the only evidence of the testator having had a fall and being admitted to Sydney Hospital related to an event which occurred on 8 June 2004, three months after the date of Dr Beveridge’s report. However, a copy of the report in evidence had a facsimile header dated 11 June 2004.

13. [30]

    Dr Beveridge said that the testator was “charming and conversational”. He also stated that “her cognition was markedly impaired as she could not remember her address, her age, her date of birth, or even her birthday and could not think of any way she could find that out within her own apartment.” Perhaps that was so, but the report does not reveal precisely how the information was sought, nor whether the testator was charming but uncooperative, or was charming and attempting to provide information to the best of her ability. Dr Beveridge also stated that she had “no concept of her financial worth.” Yet when Mr Bracks spoke to her about her instructions for her new will, at an undisclosed date in “mid-March”, but apparently before 17 March, she was asked “Do you know what you are worth?” to which she replied (accurately), “You were supposed to find this out – but over a million.” That evidence was not said to be delusional. Further, when Mr Bracks attended on her to have the will signed on 5 April 2004, he asked her to give her birth date. She correctly identified the date, 17 April, though not the year, but noted her age, 75. When asked her address, she correctly recalled the street, but not the number. She did not know her telephone number – “I never phone myself. I don’t know.”

14. [31]

    It is clear that the testator, in March and April 2004, had problems with her memory. It also seems likely that her abilities varied from day-to-day, and possibly depending on the alcohol consumed, the time of day. It may also be inferred that memory had a part to play in the two particular matters which the respondent relied on as evidence of “false beliefs”.

15. [32]

    The first related to her friend from New Zealand, Ms Sayes. Why Ms Sayes came to visit her is unclear as her correspondence, which was before the Guardianship Tribunal in August 2004, was not in evidence in this court. It was Ms Sayes who contacted Waverley ACAT and spoke to Ms Lewin. Ms Sayes told Ms Lewin that “large amounts of alcohol” were being consumed.

16. [33]

    As to her financial management, Ms Carr said the testator gave taxi drivers and the concierge of her building $50 tips without thinking. Ms Carr also gave an account of the testator withdrawing large amounts of cash from her bank account. Ms Carr said she had gone with the testator to the bank on more than one occasion in December 2003 when she withdrew large amounts of money, apparently totalling $150,000. [15] Ms Carr said that Ms Sayes “collected a lot of money from Beryl and deposited it in Beryl’s bank account.” [16]

17. [34]

    Dr Beveridge reported that the testator was “highly suspicious of the motives of this friend Shelley and felt that in spite of Shelley’s own wealth, that she was trying to steal from her.” A reasonable inference from this statement is that the testator and Ms Sayes had disagreed about the holding of a large sum of cash in her apartment and Ms Sayes had persuaded the testator to allow her (Ms Sayes) to redeposit it in her bank account. That appears to have happened. It is likely that the testator had a recollection of a dispute over money with Ms Sayes and Ms Sayes removing a large amount of money from her apartment, but could not remember what had happened to the money.

18. [35]

    The testator’s comment that Ms Sayes had stolen it, may have indicated a degree of paranoia, as Dr Beveridge seems to have inferred. However, it is by no means clear that the testator believed that to be the case. Had she believed it, it would have been surprising if she had not spoken to Ms Carr, whom she clearly trusted in financial matters, about the fate of the missing cash. Ms Carr denied any such comment to her about Ms Sayes. How Dr Beveridge elicited the testator’s remark is unknown. Dr Beveridge, rather vaguely, referred to her references to “people trying to get at her”. He referred in the next sentence to her suspicions of Ms Sayes’ motives. However, it was in fact Ms Sayes who had instigated the visits of Ms Lewin and hence of Dr Beveridge. It is quite possible that the testator knew of, or at least suspected, that connection.

19. [36]

    The second false belief was that involving Ms Richardson. In explaining why she did not wish to leave anything to her niece, she said she had “disgraced herself with comments about my sister (her mother)”. That conversation took place in mid-March 2004. She gave a similar account to Ms Carr on two occasions. The first conversation was in the following terms: [17]

20. [37]

    Ms Richardson denied that any such conversation had taken place. It is not in doubt, however, that there had been a disagreement between aunt and niece over euthanasia. It is plausible that, as with Ms Sayes, the emotional impact of the disagreement had been retained in the testator’s memory, but the cause had disappeared and she had invented an explanation. It may even be that she had done so consciously, having been told that euthanasia was illegal.

21. [38]

    The trial judge recognised the possibility:

22. [39]

    The respondent accepted that the only basis upon which testamentary capacity was challenged was the false belief as to Ms Richardson’s behaviour. However, the reason was only false at the level of particularity; there was undoubtedly a disagreement between them and a cooling of the relationship resulting in lack of contact for some weeks, if not months. Precisely why the testator became so upset with her niece is a matter of speculation. It may have been that her sister’s death was linked in her mind to her own wish to have the means for euthanasia available. She was never asked to explain it and, given her dementia, may not have been able to do so. However, it is clear that she was upset and decided to change her will. When asked, she gave an apparently rational explanation for not wishing to leave money to her niece or her nephew, of whom it may be said that neither had a strong claim on her. Nieces and nephews are not recognised by the law as persons who take on an intestacy, nor are they recognised as eligible persons for the purpose of a family provision application. Their “claims” for bequests from their parents’ siblings can more readily be put to one side than can the moral claims of closer relatives.

23. [40]

    Circumstances had meant that the testator and Ms Richardson saw each other on infrequent occasions, as they lived on opposite sides of the world. Whether a largely absent adult niece who was thought not to be in financial need (that was not alleged to be a delusion) can have any better claim on the testator than a close friend who saw her several times a week and provided various kinds of care, assistance and companionship, is not a question which provides a single ready answer. The source of the disagreement remains obscure. On any view it would be difficult for a court, which can hear only one person’s account of a conversation which occurred some 14 years earlier, to judge whether the testator’s response to it was so irrational as to reveal a disorder affecting her capacity to make a will.

Onus of proof

1. [41]

   The case-law in relation to the proof of wills is rife with statements as to when and where a burden of proof arises. Statements are commonly expressed in generic terms without attention to the specific issues raised. In other respects, their meaning may be obscure. As Campbell JA aptly noted in Tobin v Ezekiel, [18] it is frequently important to know “who has the onus of proving some particular matter relevant to that litigation, and in what circumstances there is a shifting of the onus of adducing evidence concerning that matter.” He continued, “the onus of adducing evidence concerning one matter relevant to the litigation might be shifted by evidence that is not enough to shift the onus of adducing evidence concerning another matter relevant to the litigation.”

2. [42]

   In cases involving allegations of incapacity, discussion frequently commences by reference to the reasoning of the High Court in Worth v Clasohm. [19] That case provides a valuable starting point for present purposes because the facts bore a general resemblance to those in the present case. Further, it is necessary to give some explanation of the facts in order to appreciate the statement as to the burden of proof which appears in the last paragraph of the judgment.

3. [43]

   Unlike many cases of that era which involved jury trials, the appeal came from the Supreme Court of South Australia, where the trial had been conducted by a judge alone. The High Court summarised the findings below in the following passage: [20]

4. [44]

   In the final paragraph of the judgment, the Court expressed its approach and conclusions in the following terms: [21]

5. [45]

   In Re Estate of Griffith, Gleeson CJ commenced his discussion of the relevant legal principles by reference to this passage in Worth v Clasohm. He continued: [22]

6. [46]

   There is a ready temptation to reformulate these propositions in the language of presumptions and shifting burdens, and by reference to burdens of adducing evidence and burdens of proof. However, such complexity is unlikely to be helpful and may distract from a determination of what is in substance a purely factual issue, the resolution of which will turn on the nature of the particular matters raised, and by whom.

7. [47]

   To speak of there being a “doubt” as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, “a grave matter.” A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity.

Conclusion

1. [48]

   The testator’s deliberate choice between, in effect, three competing parties was not irrational and was not shown to be the immediate product of any mental disorder. The evidence of mental disorder was somewhat sparse, depending upon a brief assessment of cognitive abilities by a social worker, supported by a somewhat imprecise assessment by a geriatric physician undertaken whilst the testator was consuming whisky. On the other hand, Dr Phillips was content to accept that she suffered from dementia, probably Alzheimer’s, but also probably accentuated by a vascular event at about the time of her hospitalisation in June 2004.

2. [49]

   Her decision to revoke her 2001 will in favour of Ms Richardson, and replace it with the 2004 will in favour of Ms Carr, was probably in part the result of a falling out with Ms Richardson in late 2003, combined with the appreciation that Ms Richardson was not in need. The particular cause of the falling out is unclear. However, the fact that the primary judge accepted Ms Richardson’s evidence that the reason expressed by the testator was unfounded in fact does not mean that the testator was “delusional”.

3. [50]

   The further finding of the primary judge that, even if the falling out were the result of the disagreement over the availability of euthanasia, the testator’s response was unjustified, is insufficient to warrant the conclusion that it was delusional and resulted from an unsoundness of mind. There was, in effect, an absence of persuasive evidence linking the antipathy for her niece with unsoundness of mind. A court must be vigilant against drawing such a link on the basis of its view that the judgment exercised by the testator, founded upon a false recollection of the reason for her antipathy, was quite unreasonable. Accepting that it raised a relevant doubt, a careful analysis of the whole of the evidence showed that there was no proper evidential basis to conclude that an irrationally based antipathy towards her adult niece warranted a finding of testamentary incapacity. The doubt should be rejected as insubstantial.

4. [51]

   The appeal should be allowed and the 2004 will admitted to probate. I agree with the orders proposed by Macfarlan JA.

5. [52]

   MACFARLAN JA: Ms Beryl Hordern died on 25 September 2014 aged 86. On 2 December 2001 she had executed a will leaving the whole of her estate to her niece, Ms Ann Richardson, whom she appointed executrix of the will. On 5 April 2004 she executed a further will revoking the 2001 will and leaving the whole of her estate to Ms Cynthia Carr, whom she appointed executrix of that will.

6. [53]

   As Ms Richardson resides in Portugal, she appointed Ms Paula Homersham as her attorney pursuant to s 72 of the Probate and Administration Act 1898 (NSW) to seek on Ms Richardson’s behalf a grant of administration of the deceased’s estate with the 2001 will annexed.

7. [54]

   In her Amended Statement of Claim, Ms Richardson alleged that the 2004 will was not a valid will because the deceased lacked testamentary capacity when she signed it. Ms Richardson gave the following particulars of invalidity:

8. [55]

   By a cross-claim dated 30 March 2016, Ms Carr sought probate of the 2004 will.

9. [56]

   After a two day hearing in the Equity Division, Robb J found that the deceased lacked testamentary capacity when she executed the 2004 will. His Honour therefore granted administration in solemn form, with the 2001 will annexed (Estate of Beryl Lee Hordern (deceased) [2017] NSWSC 753). His Honour found that Ms Carr did not discharge her onus of proving that the 2004 will was the will of a free and capable testator. In this context his Honour said that the deceased was shown “to have acted irrationally and forgetfully in the period of about six months before she executed the 2004 will” (Judgment [202]).

10. [57]

    On appeal, Ms Carr contested these findings and contended that probate should have been granted to her of the 2004 will. For the reasons that follow, I consider that that contention is correct and that the appeal should be allowed.

Ms Richardson’s evidence

1. [58]

   Ms Richardson’s mother was the deceased’s sister. In her principal affidavit, Ms Richardson said that the deceased migrated from England to Australia in the late 1950s and that Ms Richardson, who remained in England, maintained contact with her and made occasional visits to Australia to see her.

2. [59]

   Ms Richardson said that in November 2003 the deceased asked her to make enquiries about euthanasia for the deceased. Ms Richardson’s evidence continued as follows:

3. [60]

   In a later affidavit, Ms Richardson said that her mother had died in 1972 aged 46, when Ms Richardson was aged 23. Her mother had been incapacitated for two months prior to her death but prior to that had had a normal lifestyle. Contrary to a view held by the deceased, as explained below, to the effect that Ms Richardson believed her mother’s illness had ruined her life, Ms Richardson said that she had had a normal loving relationship with her mother, with whom she resided (with her father and brothers). Ms Richardson said that she never made any complaint to the deceased about her mother and that the deceased never expressed any concern or disapproval to Ms Richardson concerning her relationship with her mother.

Ms Julie Lewin’s evidence

1. [61]

   Ms Lewin is a social worker who visited the deceased on a number of occasions. She prepared a report dated 18 June 2004 for the Guardianship Tribunal.

2. [62]

   In the report, Ms Lewin said that she assessed the deceased on 27 February 2004 and had found that the deceased managed her daily living activities poorly but rated highly on the personal care scale. She continued: “Her score [on] the Mini Mental State Examination (MMSE) was 19/30 indicating a moderate dementia”. The words “to severe” were typed in the report after the word “moderate” but were not pressed by Ms Richardson’s counsel when tendering it.

3. [63]

   Ms Lewin approved the deceased “for low level respite care with the recommendation that she [needed] Geriatric Review and Guardianship to be followed up in the Hornsby area”.

Dr Alexander Beveridge’s evidence

1. [64]

   Dr Beveridge is a staff specialist in geriatric medicine at St Vincent’s Hospital. At Ms Lewin’s request, he interviewed the deceased at her apartment on 8 March 2004.

2. [65]

   Dr Beveridge’s report dated 9 March 2004 included the following:

3. [66]

   Later in the report, Dr Beveridge opined that “her cognition was markedly impaired as she could not remember her address, her age, her date of birth, or even her birthday and could not think of any ways that she could find that out within her apartment”. He went on to describe “memory” as being “the predominant problem” and concluded:

Mr Norman Muddle’s evidence

1. [67]

   Mr Muddle acted as the deceased’s accountant and tax agent for about 25 years.

2. [68]

   In early 2004 a friend of the deceased, Ms Shelley Sayes, told Mr Muddle that she had “seen $150,000 in cash withdrawn from Beryl’s bank account”. When Mr Muddle visited the deceased shortly after, she said that “I’m a bit funny in the head but I’m going to beat it” and when he told her that her bank required her to authorise it to provide information to Mr Muddle, the deceased replied “Okay, who are you again?”

Ms Cynthia Carr’s evidence

1. [69]

   In her principal affidavit, Ms Carr said that she commenced doing cleaning work for the deceased more than 10 years before her death. A friendship developed between them and they met frequently on a social basis. Ms Carr also performed many chores for the deceased.

2. [70]

   In December 2003 the deceased withdrew a large amount of money from her bank account. Subsequently Ms Carr said that a friend of the deceased, Shelley, collected it and deposited it back into the account.

3. [71]

   Ms Carr said that the deceased was in good health until about the middle of 2004 “when her mental condition seemed to rapidly deteriorate” after she had a fall. She said that before the fall, “while she was sometimes vague, [the deceased] always recognised me and she was coherent and made sense when she spoke to me. Her condition then was very different to [what] it was at the Guardianship Tribunal [on 30 July 2004] when she was incoherent and spoke nonsense”.

4. [72]

   In December 2003 the deceased said that she wanted to have her affairs “sorted” and asked Ms Carr whether she knew a solicitor who could assist her. Ms Carr recommended Mr Noel Bracks who subsequently attended on the deceased more than once. On one occasion (5 April 2004), Mr Bracks attended at the deceased’s apartment with Mr Lincoln Kelly, a solicitor of his office. Ms Carr did not participate in the meeting. She described what occurred after the meeting as follows:

5. [73]

   Ms Carr was cross-examined extensively by counsel for Ms Richardson but this Court was not referred to any particular parts of that evidence. The primary judge accepted Ms Carr’s evidence.

Mr Noel Bracks’ evidence

1. [74]

   Mr Bracks is an experienced solicitor who commenced to act for the deceased in December 2003 when she asked him to collate information concerning her financial affairs. He attended on her at her home in that month and on 20 February and 5 April 2004.

2. [75]

   In the middle of March 2004 he had a telephone conversation with the deceased to the following effect:

3. [76]

   Mr Bracks subsequently spoke to Ms Carr who, when Mr Bracks said that the deceased was leaving her estate to Ms Carr rather than Ms Richardson, replied “I understand so but Ann has really hurt Beryl”. Ms Carr told him that Dr Beveridge had recently assessed the deceased.

4. [77]

   On 30 March 2004 Mr Bracks spoke to Dr Beveridge who said: “I’m a little concerned as to her wellbeing. She may be suffering dementia to some extent or she may drink too much or it may be a combination of both”. Mr Bracks said that the conversation continued as follows:

5. [78]

   Mr Bracks kept a note of that conversation.

6. [79]

   Mr Bracks prepared a draft will in accordance with the telephone instructions from the deceased and attended with Mr Kelly on 5 April 2004 to witness the deceased’s execution of the will. Mr Bracks asked the deceased a series of simple questions and recorded her answers. In her answers, the deceased was able to recall the identity of her blood relatives (Ms Richardson and a nephew), her birthday and age and the street in which she lived (although not the number). She revealed an understanding of what a will was and, in answer to a question as to what her estate was worth, she referred to her request to Mr Bracks to ascertain that, but said that it was over $1 million.

7. [80]

   After hearing her answers to these questions, he said that he was satisfied that the deceased had testamentary capacity. The will was then duly executed.

Mr Lincoln Kelly’s evidence

1. [81]

   Mr Kelly gave evidence of the deceased’s execution of the 5 April 2004 will consistent with that of Mr Bracks. He said that the deceased appeared to be “lucid and coherent”, and had no difficulty responding to Mr Bracks’ questions.

Dr Jonathan Phillips’ evidence

1. [82]

   Dr Phillips is an experienced consultant psychiatrist who did not consult with the deceased during her lifetime, but was asked to give expert evidence in the proceedings based upon documents with which he was supplied.

2. [83]

   Dr Phillips’ report of 23 November 2015 to Mr Bracks included the following:

3. [84]

   In cross-examination, Dr Phillips was referred to Ms Lewin’s report dated 18 June 2004 referred to in [61]-[63] above. Dr Phillips responded as follows:

4. [85]

   Dr Phillips was then asked to assume that the reason the deceased gave to Mr Bracks for changing her will in 2004 was that Ms Richardson had complained to the deceased that her mother “had ruined her life by being so sick” but that no such complaint had ever been made. Dr Phillips responded:

5. [86]

   It was not suggested to Dr Phillips, at least in terms, that any of the matters put to him in cross-examination warranted a change to the view expressed in his report that, on balance, the deceased retained testamentary capacity on 5 April 2004.

THE JUDGMENT AT FIRST INSTANCE

1. [87]

   The primary judge referred to the following well-known test of testamentary capacity that Cockburn CJ stated in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

2. [88]

   His Honour found that the first and second requirements were satisfied but that the exclusion from the will of Ms Richardson, a person who “naturally had a claim on the deceased’s bounty”, provided “strong grounds for suspecting that the deceased lacked testamentary capacity in March and April 2004” (Judgment [132]-[133]). Relying on Re the Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 706-707, his Honour took the view that it was essential for testamentary capacity that the deceased was capable of “deliberately forming an intelligent purpose” of excluding persons who had a natural claim on his or her bounty.

3. [89]

   As to Cockburn CJ’s reference to an “insane delusion” in Banks v Goodfellow, his Honour observed:

4. [90]

   His Honour did not consider that the High Court decision in Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 required him to find that the third requirement of testamentary capacity could only be found not to have been satisfied if the late Ms Hordern suffered from an insane delusion constituted by a “fixed and incorrigible false belief which the [deceased] could not be reasoned out of” (Bull v Fulton at 339). His Honour found that it was “logically immaterial whether or not it was an attribute of the disorder [of which Ms Hordern suffered] that she could not be talked out of her delusion” (Judgment [152]).

5. [91]

   Having reviewed the evidence, the primary judge concluded that Ms Richardson “did not make to the deceased the statements that the deceased apparently believed had been made concerning Ms Richardson’s life being ruined” by the circumstances of her mother’s illness and death (Judgment [172]). His Honour held that this false belief was “instrumental” in the deceased’s decision to exclude Ms Richardson from her will (Judgment [167]).

6. [92]

   His Honour said that it was “not rational” for the deceased to accuse Ms Richardson of having stopped her euthanasia occurring (see [59] above). His Honour added:

7. [93]

   His Honour then referred to “other matters that seriously cast doubt on the cognitive ability of the deceased in the period leading up to the making of the 2004 will”. These included:

   1. (1)

      The deceased took sums of $80,000 and $50,000 in cash out of her bank accounts.

   2. (2)

      The deceased suspected that her friend Shelley was trying to steal from her.

   3. (3)

      The deceased thought in November 2003 that her telephone and fax were not working when they were.

   4. (4)

      The deceased needed the assistance of Mr Bracks to work out in detail what her assets were.

   5. (5)

      The deceased appeared to forget who Mr Muddle was in February 2004.

   6. (6)

      The deceased could not remember her own address or her day or year of birth.

   7. (7)

      The deceased thought that her ex-husband was a paedophile.

8. [94]

   His Honour did not feel constrained to act on Dr Phillips’ view that on balance the deceased had testamentary capacity when she made her 2004 will because Dr Phillips “was not asked to assume [for the purposes of his report] that the deceased had decided to cut out Ms Richardson on the basis of a false belief or recollection that Ms Richardson had said to her that Ms Richardson’s mother’s illness and death had ruined Ms Richardson’s life” (Judgment [198]).

9. [95]

   His Honour concluded that Ms Carr had not shown that the deceased had testamentary capacity when she executed the 2004 will, adding that “the deceased has been shown to have acted irrationally and forgetfully in the period of about six months before she executed the 2004 will”. His Honour said that he was in fact satisfied that the deceased did not have testamentary capacity (Judgment [202]).

THE ISSUES ON APPEAL

1. [96]

   On appeal, Ms Carr accepted that the deceased had had a false belief that Ms Richardson had told the deceased that Ms Richardson’s mother’s illness and death had ruined Ms Richardson’s life. Ms Carr submitted however that the deceased’s holding of that false belief did not indicate that the deceased lacked testamentary capacity. She further submitted that the other matters to which the primary judge referred, such as the euthanasia conversation between the deceased and Ms Richardson (see [59] above), similarly did not indicate that the deceased lacked testamentary capacity.

2. [97]

   In response, Ms Richardson sought to support the primary judge’s decision in all respects.

DETERMINATION OF THE APPEAL

1. [98]

   Ms Carr accepted that, because she propounded the 2004 will, she bore the legal onus of proof that it was the last will of a “free and capable” testator who “knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing” (Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]). Ms Carr also accepted that the presumption of mental competence that arose from the will being rational on its face and having been duly executed was displaced by circumstances which raised a doubt as to the existence of the deceased’s testamentary capacity (ibid). As a result, Ms Carr’s burden of proof required her to dispel those doubts on the balance of probabilities. As stated by the High Court in Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67:

2. [99]

   The primary judge described “[t]he primary issue for consideration [as] the deceased’s belief that Ms Richardson had told her that the circumstances of the illness and death of Ms Richardson’s mother had ruined Ms Richardson’s life”. His Honour found the belief to be false and “directly material to the deceased’s decision to cut Ms Richardson out of her will” (Judgment [164]).

3. [100]

   His Honour went on to find that the deceased lacked testamentary capacity because this false belief was a delusion “that materially prevented her from exercising her natural faculties in order to comprehend and appreciate the claims to which she ought to give effect” (Judgment [152] and [180]).

4. [101]

   In these circumstances, it is important, if not decisive, to the outcome of Ms Carr’s appeal to consider the kinds of delusion which may warrant a finding that a deceased person lacked testamentary capacity. The authorities to which I turn below in my view establish that a false belief, even one that is material to the making of the will in question, is not of itself sufficient for this purpose. More is required: the nature of the deceased’s false belief and the circumstances in which it was adopted and adhered to must point to a lack of capacity of the deceased “to comprehend and appreciate the claims to which he [or she] ought to give effect” (Banks v Goodfellow at 565).

5. [102]

   This is apparent from the language of the Banks v Goodfellow test, to which I have referred in [87] above. As I read Cockburn CJ’s formulation of the test, his Lordship’s references to the absence of disorders of the mind and to insane delusions are explications of the third of his stated requirements. That is, that the deceased must have had the ability to understand and assess relevant claims on his or her bounty. They do not state independent elements of the test. For this reason, the existence of an “insane delusion” under which the deceased laboured does not preclude a finding of testamentary capacity if the delusion had no effect upon the will. This was the case in Banks v Goodfellow itself (see 570-2). Likewise, a deceased may, in the absence of relevant delusions, suffer from some other mental deficiency which precludes him or her comprehending and assessing the claimants on his or her bounty (Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117; Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 290).

6. [103]

   I turn then to consider as follows various authorities that assist in identifying delusions that are relevant in this context.

7. [104]

   In Boughton v Knight (1873) LR 3 P & D 64 at 68 Sir James Hannen, in summing up to a jury, accepted that a delusion was relevant only if it was “the belief of facts which no rational person would have believed[,] that is [an] insane delusion”. To the same effect, his Lordship said that the jury members must ask themselves:

8. [105]

   In Timbury v Coffee (1941) 66 CLR 277 at 291; [1941] HCA 22, Williams J found that the jury was entitled to form a view that a false belief that the deceased held “was so irrational as to be due to some aberration of his intellect”.

9. [106]

   In Bull v Fulton at 298, the High Court found that the holding by a testatrix of a false belief that her nephews were guilty of deceit or forgery, resulting in her exclusion of them from the dispositions in her will, indicated that she lacked testamentary capacity. Latham CJ referred to the beliefs as “completely irrational” and “so firm that no evidence, no persuasion, could affect them”. His Honour also referred to the testatrix as having “persisted in her allegations though she knew that they were false” and having “again and again gratuitously made the allegations against her nephews” (ibid). His Honour regarded the evidence produced to the deceased to demonstrate the falsity of her belief as “overwhelming” (at 298). Similarly, Williams J at 338-9 referred to the testatrix having “caused a flood of irrational distrust and hatred against [her nephews] for which there was no possible justification” and stated that “having regard to her pertinacious adherence to her delusive ideas with respect to her nephews in opposition to … plain evidence of their falsity, the better conclusion is that … her mind had become the victim of insane delusions”. His Honour adopted the following as appropriate definitions of an insane delusion: “A belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual’s education and surroundings” and “a fixed and incorrigible false belief which the victim could not be reasoned out of” (at 339).

10. [107]

    In Worth v Clasohm, a testatrix erroneously believed that she was being poisoned by certain relatives with whom she was living. The Court adopted the definitions of insane delusion given by Williams J in Bull v Fulton and noted at 449 that “no-one [had] ever tried to reason the testatrix out of the beliefs she is said to have expressed”. In particular, the Court noted that the deceased’s doctor, who gave evidence, “never attempted to reason with [the testatrix] on the subject of the poisoning of her food or medicines” (at 450).

11. [108]

    In Re Estate of Griffith, the testatrix excluded her only child from her wills because she was disappointed with his decision to join a religious order and with his choice of career. By majority, this Court found that the deceased’s testamentary capacity had not been established. Gleeson CJ (with whom Handley JA agreed) observed at 289:

12. [109]

    His Honour found that there was ample evidence to support the primary judge’s conclusion that there was no rational ground for the testatrix to behave towards her son as she did or for her to have formed the belief that her son “had so behaved towards her as to merit hatred” (ibid). His Honour found that this delusion constituted, in the words of Williams J in Bull v Fulton, “a fixed and incorrigible false belief which the victim could not be reasoned out of” (ibid). His Honour held that it followed that “the testatrix was unable to consider and give effect to the claims upon her bounty of her only child” (at 292).

13. [110]

    In Perpetual Trustee v Baker [1999] NSWCA 244, the testatrix laboured under a number of mistaken beliefs at the time that she executed her will. This Court held however that the beliefs were not delusional in the sense referred to in Re Estate of Griffith. Giles JA and Brownie AJA concluded that the testatrix did not hold any “demonstrably false belief from which she could not be moved by logical argument and evidence to the contrary” (at [9]).

14. [111]

    In Wechsler v Du Maurier [2002] NSWCA 13, the deceased was found to have held a false belief that one of her daughters and her husband “had cheated or deceived her or dealt with her improperly” (at [6]). At first instance, Windeyer J said the following:

15. [112]

    His Honour’s conclusion and reasoning were upheld on appeal. Stein JA (with whom Hodgson JA and Foster AJA agreed) said that there was “ample evidence” for the primary judge “to conclude that the false belief which [the deceased] held was explicable and that it was not a delusion but in fact a mistaken view” (at [36]).

16. [113]

    I consider that these authorities support the following propositions:

    1. (1)

       It is insufficient to demonstrate the absence of testamentary capacity to prove that the deceased acted on a material mistaken belief in making his or her will.

    2. (2)

       For a mistaken belief to rise to the level of a “delusion” which affects the validity of the will, there must at least be a high degree of irrationality in the belief and ordinarily evidence will be required that there has been an attempt to reason the deceased out of the belief, such that the deceased’s adherence to it suggests that the deceased has a mental disorder or deficiency precluding the deceased from comprehending and appreciating “the claims to which he [or she] ought to give effect” (Banks v Goodfellow at 565).

    3. (3)

       Whether or not there is such evidence, generally the circumstances must be such that it can be inferred that the deceased was wedded to the belief irrespective of its truth. If that is not the case, the belief is likely to be no more than a mistaken view, the holding of which cannot be inferred to reflect on the deceased’s mental competence.

17. [114]

    Returning to the present case, the evidence of the deceased’s false belief came from two sources. First, the deceased referred to it in her telephone conversation with Mr Bracks in mid-March 2004 (see [75] above) and secondly Ms Carr said that the deceased had told her of it on two occasions (see [72] above). Neither Mr Bracks nor Ms Carr attempted to challenge the deceased about the belief. This was understandable because neither had any reason to do so, nor any information that would have enabled them to do so. Nevertheless, the deceased’s statements of her belief remained unchallenged and unexplored.

18. [115]

    In those circumstances, it remained entirely possible that the belief arose out of a misunderstanding or mistake. As Dr Phillips put it (see [85] above) the belief could have arisen out of a “misunderstanding of the family dynamics” which is “common enough in families”. Even if the belief resulted from an unreasonable interpretation of something that was said to the deceased, in my view the evidence fell well short of establishing that the belief was, to use epithets stated or applied in the authorities to which I have referred, an “insane delusion” (Banks v Goodfellow), “so irrational as to be due to some aberration of [her] intellect” (Timbury v Coffee), “completely irrational”, “a fixed and incorrigible false belief” (both from Bull v Fulton) or a “morbid aberration” (Re Estate of Griffith).

19. [116]

    The primary judge found that Bull v Fulton did not require him to be satisfied that the deceased’s false belief was one that she could not be reasoned out of and stated that it was “logically immaterial whether or not it was an attribute of the disorder [from which Ms Hordern suffered] that she could not be talked out of her delusion” (see [90] above).

20. [117]

    I do not, with respect, agree with these conclusions. As I have indicated, a mere mistaken belief is not sufficient in this context. There must be an element of irrationality such that an inference can be drawn that the deceased has adhered, or would adhere if the occasion arose, to the belief regardless of evidence demonstrating its falsity. If the belief is one that the Court can infer the deceased could have been reasoned out of by the presentation of evidence of its falsity, its origin in a mental deficiency will not be able to be inferred.

21. [118]

    His Honour’s stated approach in my view led him into an error of treating a clearly mistaken belief as of itself sufficient to indicate that the deceased lacked the mental capacity to properly consider and assess Ms Richardson’s claim on her bounty. The error is confirmed by his Honour’s reference to the euthanasia conversation (see [92] above). As his Honour acknowledged, it is possible that the real reason that the deceased excluded Ms Richardson from her will was that the deceased was upset about their conversation concerning euthanasia. As also recognised by his Honour, it was quite unfair of the deceased to blame Ms Richardson for the deceased’s inability to be euthanased. His Honour however indicated that excluding Ms Richardson on that basis would equally have invalidated the will, without his Honour asking whether the deceased’s adoption of that unfair approach would have reflected a mental incapacity to consider and assess Ms Richardson’s claim on her bounty. To adopt the language of Gleeson CJ in Re Estate of Griffith, whilst the deceased’s approach may have been “harsh” and “unreasonable”, it would not have reflected “a ‘morbid aberration’ which [so affected the deceased’s judgment of Ms Richardson] as to warrant the conclusion that she lacked the capacity to make a valid will” (see [108] above).

22. [119]

    The tenor of his Honour’s judgment suggests that he probably would not have found that the deceased’s testamentary capacity had not been established if he had taken a different view about the deceased’s false belief concerning Ms Richardson. Nevertheless, his Honour did not explicitly state that to be the case and it is accordingly necessary to deal with the other matters that his Honour relied upon in support of his conclusion that testamentary capacity was not established. I refer to these matters by reference to the numbering in [93] above:

23. [120]

    I add in relation to (4)-(6) that the deceased’s memory of such matters as her birthday was considerably better when Mr Bracks questioned her on the date she executed the will (see [79] above) than when she spoke to Dr Beveridge a month earlier (see [65] above). The difference is perhaps explained by Dr Beveridge’s observations that the deceased had had at least one Scotch whiskey before he arrived and poured herself another during the interview. Dr Beveridge said however that the deceased did not appear to be inebriated at the time.

24. [121]

    I also add that the fact that the deceased suffered from dementia, as both Dr Beveridge and Dr Phillips said was the case ([66] and [83] above), was not inconsistent with her retaining testamentary capacity at the relevant time. Neither doctor suggested that it was (see [77] and [83] above). No doubt the deceased’s memory difficulties were at least in part reflective of that disorder but there was no evidence indicating that the existence of that disorder assisted in characterising the nature or origin of the deceased’s false belief concerning Ms Richardson.

25. [122]

    For these reasons, none of the additional matters relied upon indicate that the deceased lacked testamentary capacity.

Conclusion

1. [123]

   As recognised by Gleeson CJ in Re Estate of Griffith at 290, “[t]he 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”. Findings that testamentary capacity has not been established because the deceased has laboured under what are found on analysis to be no more than mistaken beliefs would inappropriately erode that important right.

2. [124]

   Whilst the expression “insane delusion” used in Banks v Goodfellow is arguably tautological, its inclusion of the word “insane” emphasises that a relevant delusion is one indicative of a mental deficiency inconsistent with testamentary capacity, and not simply a false or mistaken belief. For the reasons I have given, the deceased’s belief concerning Ms Richardson was not of the former character and the other matters referred to by the primary judge were not indicative of such a deficiency.

3. [125]

   Aside from the evidence of these matters, there remained the evidence of Mr Bracks and his assistant of the due execution of the will and of the deceased’s apparent mental capacity at the time of execution. There also remained Dr Phillips’ on-balance view that the deceased had testamentary capacity on 5 April 2004. Arguably the evidence of Ms Lewin and Dr Beveridge stood against this evidence. However, Ms Lewin’s qualification was as a social worker, not as a psychologist or psychiatrist, and, in any event, her report did not focus on the question of testamentary capacity and certainly not on whether the deceased had that capacity on 5 April 2004. Dr Beveridge similarly did not focus on that issue and his interview with the deceased was not proximate to the date on which she executed the will.

4. [126]

   In these circumstances, I consider that Ms Carr established that the deceased had testamentary capacity when she executed her will of 5 April 2004 and that the appeal should accordingly be allowed.

5. [127]

   I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the orders made at first instance on 13 June 2017 and any further orders subsequently made to give effect to the primary judge’s reasons for judgment of that date.

   3. (3)

      Order that probate in solemn form be granted to Ms Carr of the will of the late Beryl Lee Hordern dated 5 April 2004.

   4. (4)

      Order that the matter be referred to the Registrar of the Equity Division to complete the grant.

   5. (5)

      Dismiss the respondent’s Amended Statement of Claim.

   6. (6)

      Order the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.

   7. (7)

      Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

6. [128]

   LEEMING JA: I agree with Basten JA and Macfarlan JA, both of whose judgments I have had the advantage of reading in draft, that this appeal should be allowed. I agree with Basten JA’s reasons, but I write separately because this Court is disagreeing with the conclusion of the primary judge. What follows presupposes familiarity with the factual background.

7. [129]

   The appellant accepted that, as the propounder of the 2004 will, she bore the onus of establishing testamentary capacity. There was unchallenged evidence from the solicitors who attended the deceased on 5 April 2004 that she knew she was making a will and what that involved, knew broadly the extent of her assets, and was well aware that her act was to deny any benefit to her niece who had been the sole beneficiary under a previous will. Accordingly, the primary judge regarded as “the primary issue for consideration” the significance of statements by the deceased that Ms Richardson’s mother had “ruined her life”. Those statements were recorded in affidavits sworn by Mr Bracks and Ms Carr.

8. [130]

   Submissions on appeal were primarily directed to whether it could be said that the deceased was, when she executed her 2004 will, suffering from an “insane delusion”, a familiar if out-moded expression from the judgment of Cockburn CJ, Blackburn, Mellor and Hannen JJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565.

9. [131]

   Notwithstanding the way in which the formulation of the issue in Banks v Goodfellow has been treated subsequently, the issue in this jurisdiction is not framed by statute. The position is different in the United Kingdom, following the enactment of the Mental Capacity Act 2005 (UK). If and when a New South Wales statute is enacted to reflect a modern understanding of mental illness and decline, it is to be hoped that the transitional provisions will be clear, so as to avoid the dispute considered in a line of decisions presently culminating in James v James [2018] EWHC 43 (Ch) at [68]-[87].

10. [132]

    The task of the 21st century court is not to determine whether or not the deceased was suffering from something which the Court of Queen’s Bench nearly 150 years ago would have described as an “insane delusion”. I doubt the wisdom of asking a psychiatrist to provide an expert opinion couched in such terms, or of cross-examining him on his understanding of the term, although that is what happened in this trial. The question is one of common law principle, not of construction of the words used to frame one part of an elaborate judgment in 1870. Judgments should not be read as if they were statutes.

11. [133]

    There is a further difficulty with using the language of “insane delusion”. As Gleeson CJ (with whom Handley JA agreed) observed in Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 290, mental infirmity which denies testamentary capacity does not necessarily involve “insane delusions”, while it has been said that a delusion in this context means “a fixed and incorrigible false belief which the victim could not be reasoned out of”: Bull v Fulton (1942) 66 CLR 295 at 339; [1942] HCA 13.

12. [134]

    I respectfully agree with what Gleeson CJ said in Re Estate of Griffith (dec’d) at 290-291:

13. [135]

    The primary judge proceeded accordingly, framing the dispositive part of his judgment on the basis that the relevant principle was whether there was testamentary capacity on the part of the deceased to comprehend and appreciate the claims upon her bounty: at [153]. I agree. However, I have come to a different view from the primary judge in the application of this principle to the evidence.

14. [136]

    The critical timeframe in this litigation was in the first half of 2004. Following a fall in around June 2004 and her admission to hospital, it was common ground that the deceased lacked testamentary capacity, although she lived for the next decade in Lulworth House until her death. The evidence of all witnesses was of events more than a decade earlier, in respect of which it was essential to distinguish between Ms Hordern’s mental state in March and April as opposed to June 2004. It seems completely artificial to think that the unaided recollection of any witness of his or her dealings with an elderly and ailing woman 13 years earlier could much assist in the determination of whether she retained testamentary capacity in April as opposed to June, particularly those witnesses who had subsequent dealings with the deceased after her fall (there was evidence that at the Guardianship Tribunal hearing on 30 July 2004 she was unable to communicate). There is nothing I have seen in the various witnesses’ affidavits and cross-examination which suggests they had a clear recollection of their dealings with the deceased many years earlier. And the primary judge made it clear that he regarded all witnesses as having given truthful evidence to the best of their ability: at [16].

15. [137]

    Attention must therefore focus upon the relatively contemporaneous documents prepared by Ms Lewin, Dr Beveridge and Mr Bracks, and the evaluation by Dr Phillips.

16. [138]

    Ms Julie Lewin, a social worker, saw the deceased on 27 February 2004, following concerns being expressed to her by a friend. She wrote a letter some four months later, in support of what was then regarded as an “urgent” application for a financial management order and a guardianship order, stating that she had assessed the deceased on 27 February 2004. Although her letter recorded that the deceased had scored 20/20 on the personal care rating scale, her score on the Mini Mental State Examination (MMSE) was 19/30, which was said to indicate moderate dementia. The actual record of that examination was not in evidence. That led to an approval for low level respite care. I mean no disrespect, but I would be cautious in drawing an inference of testamentary incapacity from that evidence.

17. [139]

    It seems that Ms Lewin had asked Dr Andrew Beveridge to undertake a clinical review of the deceased. His letter dated 9 March 2004 is reproduced by the primary judge at [67]. It has some curious features.

18. [140]

    In addition to the reference to a fall from a ladder which resulted in her attending Sydney Hospital mentioned by Basten JA, it also recommends that “it is important to proceed with a Guardianship Tribunal hearing”. But no application to the Guardianship Tribunal was made until 21 June 2004. There may be an explanation for that 14 week delay, but if so it was unexplored in the evidence.

19. [141]

    Further, it is established beyond any doubt that Mr Bracks spoke to Dr Beveridge on 30 March 2004, having first provided an authority to the hospital. The subject matter of the conversation was the deceased’s capacity to make a will. The file note records that Dr Beveridge said he was “not prepared to say that she does not have that [testamentary] capacity”. There is no reason to doubt that the note accurately recorded what was said. It is difficult to reconcile the statements made by Dr Beveridge in his letter about the deceased having “no concept of her financial portfolio” with what he is recorded to have advised Mr Bracks. None of those matters was raised with Dr Beveridge in what was a very short cross-examination.

20. [142]

    The file note also records that Dr Beveridge gave advice to Mr Bracks as to the sorts of questions he should ask, and keep a record of, should it be necessary to demonstrate capacity. It is plain that Dr Beveridge, at the same time as he was unwilling to say that the deceased lacked testamentary capacity, was himself familiar with the legal test. Mr Bracks, less than a week later, asked similar questions, having already written them out on a piece of paper, on which he handwrote Ms Hordern’s answers. It seems a little odd for the doctor to have told the solicitor how to perform the latter’s professional attendance, but once again, it was not suggested that the answers recorded in the file note were anything other than accurate. In any event, Mr Bracks wrote a letter to the Guardianship Tribunal dated 27 July 2004, which corroborated his conversation with Dr Beveridge on 30 March and his observations of the testatrix on 5 April.

21. [143]

    I am conscious that the primary judge saw the evidence unfold over two days, including Dr Beveridge, Mr Bracks, Mr Kelly and Dr Phillips being cross-examined. It was established that the deceased was mistaken in her belief that her niece had “disgraced herself with comments about [her mother]”. But the question is not whether the deceased was mistaken in her belief (as she was), nor whether her belief was irrational (which it may very well have been). The question is whether the deceased’s belief and her actions consequent upon it were so irrational that a court should find that she lacked testamentary capacity. In answering that question, one must bear in mind the importance of respecting a testator’s choices, and Gleeson CJ’s statement that “[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”: Re Estate of Griffith (dec’d) at 291.

22. [144]

    The most important evidence was documentary, and having reviewed the whole of the evidence in this appeal, which is by way of rehearing, I do not consider that it supported a finding that, contrary to what Mr Bracks and Mr Kelly recorded on the day, and contrary to the opinion of Dr Phillips, the deceased lacked testamentary capacity. There is a conflict between the contemporaneous records made by Dr Beveridge and (to a lesser extent) Ms Lewin on the one hand, and Mr Bracks and Mr Kelly on the other hand. The primary judge regarded Dr Beveridge’s letter as highly probative: at [69]. But I would resolve the conflict in the contemporaneous documents by favouring those made by Mr Bracks, corroborated by Mr Kelly. Those men were present on the very day the deceased executed her will, their minds were squarely directed to her testamentary capacity, and their conclusions are supported by the opinion of Dr Phillips.

23. [145]

    The conflicting evidence of Dr Beveridge, Ms Lewin, Mr Bracks and Mr Kelly was the most significant of the matters relied upon to support the finding of lack of testamentary capacity. I agree with what Basten JA and Macfarlan JA have said about the more peripheral matters, such as the large withdrawals of money and the deceased’s forgetting the name of her accountant, which did not directly bear upon the decision to disinherit the niece. The result is that the appeal should be allowed. I agree with the orders proposed by Macfarlan JA.