Briton v Kipritidis

Alexander Kipritidis (the deceased) died between 24 July 2013 and 29 July 2013 aged 73. He had been suffering from a chronic schizophrenic disorder of a paranoid kind since the 1970s and, at the time of his death, his affairs were under the control of the NSW Trustee & Guardian. Initially, it was thought that the deceased died intestate and that his estate would pass to the defendants, John Kipritidis, Christos Michael Kipritidis, Louise Vagiotis, Helen Long and Louise Michos, who are the deceased’s first cousins, under the laws of intestacy. Subsequently, it was discovered that the deceased had made a will on 9 October 1995 by which he left the whole of his estate to “the Socialist Party of Australia currently at 65 Campbell Street, Surry Hills 2010” (the Party) and appointed Mr Peter Symon, the then General Secretary of the Party, or Mr Symon’s successor in that position, as his executor. The Socialist Party of Australia is an unincorporated and unregistered political association. It changed its name on 6 October 1996 to The Communist Party of Australia. Mr Symon died on 18 December 2008 and the current General Secretary of the Party is the plaintiff, Mr Briton.

Following discovery of the will, Mr John Kipritidis (Mr Kipritidis), on 11 April 2014, lodged a caveat in respect of any grant of probate. The caveat stated that he did so on his own behalf and on behalf of the other defendants. It also said:

On 16 April 2014, Mr Briton commenced these proceedings seeking a grant of probate in solemn form. Mr Kipritidis, who has acted for himself in the proceedings and has on occasions purported to act for the other defendants, filed a defence and cross-claim. There was no appearance by the other defendants at the hearing of this matter.

It appeared from the material filed by Mr Kipritidis that the defendants contested the will on the basis that the deceased lacked testamentary capacity. However, in submissions served by Mr Kipritidis on 28 September 2015 (three days before the hearing was due to commence), Mr Kipritidis also sought to raise an argument that “the Will itself is invalid according to Bacon v Pianta”. That was a reference to the decision of the High Court in Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634, where the High Court held that a gift to “The Communist Party of Australia for its sole use and benefit” could not be construed as a gift to the current members of that unincorporated association at the time the gift took effect and was therefore void for uncertainty. Mrs Bridger, who appeared for Mr Briton, objected to Mr Kipritidis raising that argument on the ground that her client would be prejudiced. Mr Kipritidis could not point to any earlier notice of the argument. It was clear that the argument would have involved an investigation into the membership and constitution of the Party. In those circumstances, I indicated to Mr Kipritidis that I would not permit him to advance the argument. As a result, the only issue in the case is whether the deceased had testamentary capacity to make his will. If he did, there is no reason why it should not take effect according to its terms. If he did not, his estate, valued at approximately $1.85 million, passes to the defendants in equal shares.

The deceased was born in Russia on 17 November 1939. He came to Australia in 1950 with his parents from Greece, where the family had emigrated.

The deceased married in or about 1976 and was subsequently divorced. He remarried and subsequently was divorced in about 1978. He had no children and no siblings.

The deceased’s father died on 31 October 1985. His mother died on 6 September 1991, at which time the deceased inherited the family home at Weldon Street, Burwood, which is the principal asset of his estate.

The deceased obtained a degree in economics from the University of Sydney. Until 1975, he was employed with the NSW Public Service as an economics research officer, when he retired on medical grounds. From that time, he did not return to paid employment. After his retirement, the deceased stayed at home and occupied himself by reading and by writing, principally a large volume which he called “Road to Schizophrenia – The Reich of Australia”.

In or about the 1970s, the deceased was diagnosed with a chronic schizophrenic disorder of a paranoid kind. He suffered from persecutory delusions that banks, ASIO, an organisation he referred to as KITA (standing for “Kicked in the Arse”) and government agencies were against him and trying to harm him. At some stage, the deceased came under psychiatric care at Broughton Hall Psychiatric Clinic where he received treatment and was prescribed Stelazine, which, to some extent at least, seems to have ameliorated his symptoms.

It appears that the deceased attended Ashfield Community Health Centre until 1989, when he stopped taking his medication. As a result, and particularly following the death of his mother, his symptoms seem to have worsened. He became reclusive, shutting himself up in his house. On occasions, he was incapable of looking after himself.

In August 1992, the deceased was admitted to Rozelle Hospital after the police attended his house in relation to a fire that the deceased had started. The house was filthy and the deceased unkempt. On 14 August 1992, a Magistrate of the Local Court at Rozelle Hospital ordered that the estate of the deceased be subject to management pursuant to s 16(1) of the Protected Estates Act 1983 (NSW) for a period of six weeks.

The deceased was discharged from Rozelle Hospital on 29 September 1992 and thereafter received treatment from Ashfield Community Health Centre.

Subsequently, an application was made in this court for an order that the deceased’s estate be subject to management and that such management be committed to the Protective Commissioner of New South Wales. Those proceedings were compromised by orders made by consent on 5 May 1993. Under the terms of those orders, the deceased undertook, in effect, to receive treatment from the Ashfield Community Health Centre and to permit the Centre to notify the Protective Commissioner’s solicitor in the event that there was any deterioration in the deceased’s mental health or any failure by him to submit to his regular injections.

The deceased continued his treatment at Ashfield Community Health Centre until about May or June 1995. At that time he was admitted to Rozelle Hospital after he had presented to Concord Hospital complaining of chest pain and stating that he believed the chest pain was caused by ASIO putting electrical impulses into his body to kill him. At about the same time, he delivered a letter to his case manager, Mr Ian Carswell, at the Ashfield Community Health Centre, stating that he wished to withdraw from treatment and that he believed his case manager and his ex-wife were involved in murdering his mother.

On 9 June 1995, a three month management order was made under s 16(1) of the Protected Estates Act 1983 and an order was made that he remain as a temporary patient at Rozelle Hospital for a period of four weeks.

The deceased was discharged from Rozelle Hospital on 20 June 1995, but was readmitted on 25 August 1995. On 1 September 1995, another order was made that the deceased be retained as a temporary patient until no later than 15 September 1995 and that his estate be subject to management under s 16(1) of the Protected Estates Act 1983.

The deceased was again discharged from Rozelle Hospital on 21 September 1995. On 26 September 1995, an order was made for a community treatment order in accordance with a treatment plan dated 13 September 1995. That order was to expire on 25 December 1995.

The deceased consulted with Mr Maurice Castagnet about making a will. According to Mr Castagnet, that occurred in early October 1995. Mr Castagnet was admitted to practice as a solicitor in December 1984. He operated what he described as a “shopfront” office in the Burwood main business area. There is some evidence that the deceased consulted with Mr Castagnet previously, although Mr Castagnet cannot recall for what purpose. Mr Castagnet did not retain his file relating to the preparation of the will. However, he says he has a very clear recollection of the deceased. He recalls that the deceased was very passionate about politics and spoke to him at great length about it. He says that he recalls the deceased saying words to him to the effect “This country is badly run. The Socialists should take over and run it.” Mr Castagnet took instructions from the deceased for the preparation of the will. He says it was his usual practice to ask whether a client had made any previous wills, but he cannot now recall the deceased’s answer to that question. He says that he recalls the deceased telling him that he had no wife or children and that his parents had died and that he wanted to leave his estate to the Socialist Party of Australia. Mr Castagnet asked the deceased whether he had any other family members and the deceased replied in words to the following effect:

Mr Castagnet says he recalls asking the deceased why he wanted to leave his estate to a political party and the deceased replied “The Socialist Party is my family. There is no one else”.

Mr Castagnet also says that he recalls asking the deceased about his assets and the deceased replying “I have my house in Burwood and some money in the bank”. The deceased also told him that he had written a manuscript “Road to Schizophrenia – The Reich of Australia”. According to Mr Castagnet’s evidence, the deceased said words to the effect:

The deceased also told Mr Castagnet that the General Secretary of the Socialist Party of Australia was Mr Peter Symon and that he wanted him to be appointed as his executor. The deceased gave the address of the Socialist Party, which Mr Castagnet checked in the telephone book and found to be correct.

The unchallenged evidence of Ms Anna Pha, who has been employed by the Party since February 1987 and who worked with Mr Symon, is that from time to time Mr Symon reported to meetings of the Secretariat of the Party that on occasions he had sold books and obtained donations from the deceased. The evidence is that Mr Symon on occasions asked Ms Pha to select literature to take to the deceased, especially theoretical books on political economy. Ms Pha also recalls Mr Symon asking her to find books on Che Guevara for the deceased and that Mr Symon told her that he and the deceased often discussed international affairs and the political situation in Australia and, in particular, articles in The Guardian, the weekly newspaper published by the Party to which the deceased subscribed from at least 1989 until 29 January 2005, when the deceased cancelled his subscription. It is apparent from Ms Pha’s evidence that Mr Symon visited the deceased periodically and at the time the deceased made his will he seems to have been one of the few people the deceased trusted.

Mr Castagnet prepared a will in accordance with the instructions that he was given. His evidence is that either he or his secretary, Ms Sharpe, contacted the deceased to make an appointment to execute the will. He says that he saw the deceased in his office on 9 October 1995, at which time the deceased executed his will in the presence of Mr Castagnet and Ms Sharpe.

Mr Castagnet says that on the few occasions he met with the deceased, the deceased was lucid in the manner in which he spoke to him. He answered questions promptly and without any hesitation. He did not ramble in his speech. Mr Castagnet said that the deceased did not mention to him that he (the deceased) had been the subject of a community treatment order, although later in 1995 the deceased told him that he was the subject of such an order, that the matter was listed for review in the near future and that he wanted to instruct Mr Castagnet to oppose the orders sought.

As I have said, by cl 2 of the will, the deceased appointed Mr Symon his executor and trustee. Clauses 3 and 4 of the will are in the following terms:

The deceased prepared an extensive typewritten record in relation to his meetings with Mr Castagnet. The document prepared by the deceased suggests that he met with Mr Castagnet at 9.00 am on 23 August 1995. Mr Castagnet has no independent record of the meeting. The likelihood is that he has inferred the date of the meeting from the date the will was executed. However, the delay in executing the will is consistent with the fact that the deceased was readmitted to hospital on 25 August 1995. In my opinion, the meeting is likely to have occurred on 23 August 1995.

Parts of the record prepared by the deceased are difficult to follow, but appear to relate to arrangements for the payment of Mr Castagnet in relation to his attendances to resist the community treatment order. Paragraph 7 of the document deals in detail with the will. The paragraph is lengthy but it is worth setting it out in some detail because it is the best indication of the deceased’s state of mind at the time he gave instructions for the preparation of his will:

Despite extensive enquiries by the solicitors for Mr Briton, there is no evidence that the deceased had made an earlier will.

On 30 October 1995, there was a hearing before the Mental Health Review Tribunal on the application of the Ashfield Community Health Centre for a community counselling order pursuant to s 118 of the Mental Health Act 1990 (NSW). Mr Castagnet appeared at that hearing. The order was made.

On 27 November 1995, Mr Castagnet in accordance with instructions given by the deceased sent a copy of the deceased’s will to Mr Symon.

The deceased’s condition did not improve, although it appears that he remained in contact with Mr Symon up until 2005.

The deceased affirmed his will on two occasions.

The first was on 7 March 2002, when the deceased sent a handwritten letter addressed to Mr John Gregory of the Protective Commissioner’s Office saying:

The second was on 29 January 2005, when the deceased sent the following handwritten letter to Mr Symon:

Subsequently, on 16 July 2005, the deceased wrote to the office of the Protective Commissioner saying:

The onus of proving the validity of a will lies upon the party who seeks to propound the will: Bailey v Bailey (1924) 34 CLR 558 at 570. In the first instance, the person propounding the will must establish a prima facie case that “the will propounded is the last will of a free and capable testator”: Bailey at 570. Generally, “proof that a will was properly executed is prima facie evidence of testamentary capacity”: Boreham v Prince Henry Hospital (1955) 29 ALJ 179; cited in Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309 at 322. The will must also be rational on its face: Timbury v Coffee (1941) 66 CLR 277 at 283. However, where a doubt is raised as to the existence of testamentary capacity by an opposing party, it is not sufficient merely to establish a prima facie case. Rather, the onus lies on the propounding party to satisfy the court positively of the testator’s mental capacity on the balance of probabilities: Worth v Clasohm (1952) 86 CLR 439 at 453 per Dixon CJ, Webb and Kitto JJ.

Generally speaking, the relevant time at which mental capacity needs to be proven is the time of the will’s execution: Banks v Goodfellow (1870) LR5QB 549 at 568 per Cockburn CJ. However, where instructions for the drafting of the will were given to a solicitor prior to the day of its execution, as in the present case, it will be sufficient for the party propounding the will to establish that the testator had the requisite mental capacity at the time when he or she gave instructions: Parker v Felgate (1883) LR 8 PD 171; Re Crooks (Estate); Akerman v Brown (Supreme Court of NSW, Young J, 14 December 1994, unreported).

The applicable test for determining whether a testator had the required mental capacity at the relevant time was set out by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

The test has four elements. First, it requires that the testator must have understood the nature and significance of the act of making a will. This requires the testator to “be able to understand the general nature and effect of the testamentary act” – that is, “a disposition of the estate upon his or her death”: The Public Trustee v Stretch [2002] WASC 147 per Murray J at [9].

Second, the testator is required to have understood the extent of his or her estate. That involves an ability to recall at least in general terms the nature, extent and value of the estate, but “does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset”: Kerr v Badran [2004] NSWSC 735 at [49] per Windeyer J. See also Frizzo v Frizzo [2011] QCA 308 at [68] per Muir JA, with whom McMurdo P and White JA agreed.

Third, the testator needs to be capable of comprehending and appreciating any claims on his estate. In King v Hudson [2009] NSWSC 1013 at [58], Ward J (as her Honour then was) treated this element of the Banks v Goodfellow test as requiring that the testator be “able to call to mind the persons who may have claims” on the estate and be “able to weigh the relative claims of those persons”.

Fourth, the testator must not have suffered from a delusion that influenced the terms of the will at the time it was made. A delusion is a fixed and permanent belief in facts which do not exist and which the plaintiff “cannot be reasoned out of”: Bull v Fulton (1942) 66 CLR 295 at 339. Or, to use the words of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 449, a delusion is “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” (see also Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706 per Powell J). Where the testator is shown to have been affected by a “delusion” at the time of the making of the will, the court needs to be “satisfied affirmatively” that the delusion did not influence the will: Woodhead v Perpetual Trustee at 273-4; Bull v Fulton (1942) 66 CLR 295 at 343.

In Banks v Goodfellow Cockburn CJ suggested that the test for determining whether a delusion has “influenced” the will is whether it “bring[s] about a disposal of it which, if the mind had been sound, would not have been made.” In that decision, his Honour also spoke (at 557) of a delusion having a “direct bearing on the provisions of the will” and “its connection with the will being manifest”. In King v Hudson, Ward J refers (at [83]) to “matters which would seem capable of having affected the deceased’s thought processes with respect to his testamentary dispositions”. Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 considered whether “the delusions overmastered the judgment at the time of executing the will to such an extent as to render [the testator] incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will” (at 280).

Two additional matters should be mentioned.

First, as the New South Wales Court of Appeal has made clear, the Banks v Goodfellow test poses a legal, rather than a medical question: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. That is to say, while medical evidence going to any of the requirements set out in the test may be highly relevant, it is not necessarily determinative. Rather, the question is one to be determined by “commonsense judicial judgment on the basis of the whole of the evidence”: Zorbas per Hodgson JA at [65].

Second, the principle of freedom of testation means that neither eccentricity nor capriciousness is a sufficient ground to conclude that the testator lacked capacity. As Gleeson CJ noted in Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 (at 291), “[t]estamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards.”

The fact that a person suffers from schizophrenia does not mean that the person will necessarily be unable to act rationally in all aspects of his or her life. As Dr Phillips, a psychiatrist called by Mr Briton, explained:

The deceased made his will shortly after he had been discharged from Rozelle Hospital and had been made the subject of a community treatment order. The likelihood is that he was medicated at that time, even if he was not medicated at the time he gave instructions for the preparation of his will. What effect, however, that medication had on his condition is unclear. There can be no question that he continued to suffer from the delusions that were a chronic aspect of his disease.

It seems clear, on the other hand, that the deceased fully appreciated the effect of his will. He understood that, by his will, he was disposing of his assets on his death. He also appears to have appreciated the nature of his estate in general terms. He understood that it consisted of the house in which he lived together with some cash. The real question is whether the deceased’s condition affected his ability to make rational decisions concerning the recipients of his estate to the point where he lacked testamentary capacity. In my opinion, it did not.

The deceased could reasonably have reached the conclusion that he had no family other than the Party. It seems apparent that when he described the Party as his family to Mr Castagnet he was doing so in a metaphorical sense and in doing so he was adopting a common figure of speech. It is unclear whether the deceased appreciated that he had five first cousins, but if he did there is no reason why he should have regarded them as part of his family. The familial connection was not so close that it would have been natural for the deceased to regard them in that way. There is no evidence that the deceased had any contact with any of the defendants during his life. On the other hand, the deceased had a connection with the Party over a substantial period of time. He was interested in and appears to have shared their political philosophy. At the time he made his will and for a number of years prior to that time he saw Mr Symon; and indeed as far as the evidence goes Mr Symon appears to be the only person with whom the deceased had any social contact.

The deceased had been married twice. But he divorced his second wife in about 1978, some 17 years before he made his will. There is no evidence that he had any connection with either of his former wives after he divorced them. Although the deceased continued to have delusions about them, there is no reason why he should have considered them as appropriate objects of the gifts made by his will.

It is apparent from the record that the deceased prepared of his meeting with Mr Castagnet, that the deceased chose to leave his estate to the Party partly because he believed that it was the last thing his nemeses, ASIO and KITA, would want, partly because he believed that the beneficiary under an earlier will – the Department of Modern Greek at Sydney University - was no longer suitable because of its perceived connection to the Greek Prime Minister, who the deceased believed was instrumental in the murder of his mother, and partly to ensure that his estate would not fall into the hands of his former wives. However, subject to one qualification to which I will come, it does not appear that the deceased was suffering from any delusions or mistaken beliefs concerning the Party itself. He understood that the Party was a political party with certain views that he shared. He had connections with the Party going back a number of years; and there was no other obvious beneficiary. They were factors that motivated the deceased to make the will that he did. The deceased saw collateral benefits in leaving his estate to the Party that were obviously part of the paranoid delusions that were the product of his mental illness. But, in my opinion, the fact that the deceased thought that those benefits existed does not mean that an otherwise rational decision was irrational.

It is unlikely that the deceased appreciated that by leaving his estate to the Party, he was leaving it to the members of the party as at the time of his death rather than some institution that had an independent legal existence. But if the deceased believed that the Party had some independent legal existence, that belief was not a delusional one. It is a mistake that many members of the community would make in relation to unincorporated associations. The effect of what the deceased did was to leave his estate to a group of individuals who it might be expected would use the funds to further the causes which attracted the deceased to the Party in the first place. The fact that he did so was not the product of a delusion, but at most a mistake concerning the legal effect of what he did.

It follows from what I have said that there should be substantive orders in terms of those sought by Mr Briton.

In relation to costs, I am inclined to think that this is an appropriate case in which to order that the plaintiff’s costs on an indemnity basis be paid out of the estate but that there otherwise be no order for costs. However, before making any order in relation to costs, I will give the parties an opportunity to be heard. If they can agree on costs, I will make the order for costs in chambers. Otherwise, the matter should be relisted by contacting my Associate to fix a time for argument in relation to costs.

The orders of the court are: