Anthony v Sanders

[1994] QCA 237

IN THE COURT OF APPEAL	[1994] QCA 237
SUPREME COURT OF QUEENSLAND

Appeal No. 94 of 1994

Brisbane

[Anthony and Comino v. Sanderson]

BETWEEN:

SOPHIA PETER ANTHONY and
JACQUELINE PETA COMINO

(Plaintiffs) Appellants

- and -

FLORENCE SANDERSON

(Defendant) Respondent

PINCUS J.A. DAVIES J.A. CULLINANE J.

Judgment delivered 7/12/94

Judgment of the Court

APPEAL DISMISSED. APPELLANTS TO PAY RESPONDENT'S COSTS OF

APPEAL.

CATCHWORDS:	WILLS, PROBATE AND LETTERS OF ADMINISTRATION - testamentary capacity - by her will testator left estate to cousins - respondent, testator's sister, excluded from any benefit under will - respondent was testator's sole surviving next of kin - whether testator suffered from paranoid delusion directed at respondent which prevented her from making rational decision whether to exclude her as beneficiary - whether testator lacked testamentary capacity at relevant time.
Counsel:	Mr I. D. Callinan Q.C. and Mr R. Myers for the appellants
Mr L. F. Wyvill Q.C. and Mr N. Ulrick for the respondent
Solicitors:	de Groot & Co. for the appellants Stephen Comino and Cominos for the respondent

Hearing Date: 3 October 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 94 of 1994

Brisbane

Before Pincus J.A. Davies J.A. Cullinane J.

[Anthony and Comino v. Sanderson]

BETWEEN:

SOPHIA PETER ANTHONY and
JACQUELINE PETA COMINO

(Plaintiffs) Appellants

- and -

FLORENCE SANDERSON

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 7/12/94

This is an appeal against a judgment pronouncing against a will of 12 September 1990 proof of which was sought in solemn form. The question which the learned trial judge determined against the plaintiff appellants was whether, at the time of making that will, the testatrix, Sophie Venery ("Sophie"), had testamentary capacity. The respondent had alleged that she lacked it due to mental illness. The particulars of this which the respondent gave were:

"Since at least the age of 13 years the deceased suffered from schizophrenia. Since at least that age the deceased has periodically suffered from delusions and has manifested irrational conduct in the form of unusual conduct, groundless distrust of and aggression and hostility towards numerous relatives and acquaintances including the defendant. In the year 1990 prior to and at the time she executed the alleged will the deceased suffered from the delusion that the defendant was trying to take over the running of the estate of the father of the deceased and the defendant to the detriment of the deceased's share and in consequence thereof the deceased's judgment and her capacity to form a rational view of the matters to be considered in making a will and in

making a reasonable and proper distribution of her
property was overwhelmed."

Before this Court there was debate as to whether those particulars confined the issue to one of schizophrenia, or whether the second sentence was a separate particular. His Honour appears to have accepted the former view but said that the pleadings and particulars led to "something of a false issue", whether Sophie had delusions caused by schizophrenia; whereas the question was, the learned trial judge said, whether, for whatever reason, she lacked testamentary capacity. Although the question which was litigated below might not have been as broad as that statement indicates it was whether, at the time of making her will, the testator was subject to any delusion of the mind which affected her capacity to dispose of her property rationally. Whether such delusion had as its cause a disease which could be correctly described as schizophrenia was not of great relevance. But we shall return to the competing diagnoses later. The appellants accepted below and in this Court that they carried the onus of proving testamentary capacity.

Sophie was born on 26 June 1925. She executed the will the subject of these proceedings on 12 September 1990 when she was 65 and died on 11 June 1991 from leukemia from which she had been suffering since at least 1985 or 1986. She was a spinster with no children. Her only surviving next of kin was her sister, the respondent ("Florence") who was one year older. She is a divorcee with no children.

The appellants are the executors and two of the three principal beneficiaries under the will. All three beneficiaries are children of a first cousin of Sophie, and of course Florence, Peter Comino. Florence was not a beneficiary under the will.

The main assets in Sophie's estate were both owned in common with Florence; a commercial building in Albert Street, Brisbane valued at $1,660,000 and a residence at New Farm, their former family home, valued at $377,000. Both were acquired from their late father. The value of the balance of her estate was approximately $200,000.

Florence gave evidence that when Sophie was about 13 she was diagnosed as having schizophrenia. Florence then proceeded to relate many examples of conduct by Sophie which varied from unusual to bizarre. However the learned trial judge did not unconditionally accept Florence's evidence. He thought that she was not anxious to underestimate any aspect of Sophie's behaviour or to give Sophie the benefit of any doubt. He thought that she was quite capable of selfishness in regard for her own interest and of shaping her own account accordingly. In the result he approached her evidence with caution and tended to accept it only when it was corroborated by or at least consistent with other evidence.

As appears from the particulars, the specific delusion alleged was one that Florence was trying to take over the running of the estate of their late father to the detriment of Sophie. This referred to the Albert Street building. But evidence of delusions which appeared to affect Sophie's attitude towards Florence went wider than that. Moreover the delusion particularised must be looked at in the light of other, apparently irrational conduct of which evidence was given; for while the belief so alleged as a delusion might be explicable on rational, albeit unjustified grounds, its more likely explanation in that light may be that it was a consequence of a delusion. Notwithstanding this particular the case below was conducted, as we have said, on the basis that the question was whether, in the light of all of the evidence, Sophie was, when she made her will, subject to any delusion which affected her capacity to dispose of her property rationally.

As we understand it, the respondent's case was never that Sophie was generally irrational, whether in September 1990 or at any time before that. It was that, whilst Sophie was capable of behaving rationally in many, perhaps most respects, she had delusions about specific subjects or people; that these delusions caused her to behave irrationally with regard to those subjects or people (one of those people, the respondent contended); was Florence; that in consequence Sophie was at times incapable of behaving rationally with respect to Florence; and that this was so in September 1990. Plainly Sophie's conduct over many years prior to September 1990 was relevant to these contentions.

We turn now to consider that conduct.

Florence gave evidence that Sophie, from as early as age 17 or 18, frequently claimed that food prepared in the family home was poisoned. She would throw away food which had been prepared for her and cook her own meals with utensils which she kept under her bed in her own room for that purpose.

Claims that her food was poisoned were made by Sophie to others whose evidence the learned trial judge accepted.

Alexander and Lambros Frilingos were brothers and first cousins of Sophie and Florence. Alexander said that he used to visit Sophie's house on a fairly regular basis in the 1970s and 1980s. He often helped prepare lunch. He said that on numerous occasions Sophie said that food was poisoned and threw out the food and threw the utensils in the sink. On more than one occasion she accused him of trying to poison her. Lambros also said that Sophie instructed him on one occasion to put a chicken which his brother had cooked for her, and the saucepan in which it had been cooked, in the rubbish bin because Alexander had tried to poison her. She also told him, when he picked her up, at her request from St. Andrew's Hospital in 1985, that she was leaving hospital because they were trying to poison her. He also gave evidence of complaints by her that others, including her mother and father, had tried to poison her.

She also told him that her neighbour, Doris Scott, had tried to poison her. We shall mention below her other unfounded suspicions about Doris Scott. She also accused Florence of poisoning her. As the learned trial judge found, the assertions by Sophie that others had tried to poison her were completely without foundation.

There was also a series of complaints by Sophie over some years of bombs being thrown at her or attempts being made to gas her. These were mainly directed at her neighbour, Doris Scott, a person whom his Honour found had been kindly and helpful to Sophie. It need hardly be said that these complaints were entirely without justification. She also made the complaint, whilst in hospital in November 1989 that she was being drugged and that gas was coming under the door.

Mrs Brown, another neighbour of Sophie's, whose evidence his Honour accepted, said that a couple of months after the middle of 1990 Sophie told her that the Scott family had stolen her house keys. Mrs Brown gave evidence of Sophie telling her that she was often losing her keys and sometimes locking herself in or locking herself out. In the light of this and the other allegations made by Sophie it would be surprising if there were any substance in this allegation against the Scott family. Sophie also about this time accused Mrs Brown and her husband, wrongly, of planting things on her property. Also, inexplicably, on one occasion she told them to get off her property when they were standing on her footpath and she was inside her front fence.

Perhaps the oddest allegation against Florence, apart from one that, as well as others, she had attempted to poison Sophie, concerned the making of their mother's will. The circumstances leading up to this, according to Mr Prentice, a solicitor whose evidence the learned trial judge accepted, were that on the day Sophie and Florence's father died, 7 October 1983, he called at the family home. He then raised with Sophie the question of whether her mother had a will and pointed out the desirability of having one made. He spoke to the mother through Sophie as interpreter, the mother not being fluent in English and, through Sophie, the mother conveyed to him instructions to draw a will. When he had drawn it he attended at the home for its execution.

Again Sophie was the interpreter, translating for her mother Prentice's explanation of the contents of the will. She also produced a witness (Doris Scott) whose attendance she had apparently previously arranged and the will was duly executed. The mother died on 6 February 1985. On 25 November 1985 Sophie wrote to the President of the Law Society complaining about the conduct of Mr Prentice and alleging that he was unfit as a solicitor. She said that the will was prepared on instructions given by Florence and that these instructions had never come from their mother.

His Honour accepted that in the context of these events Sophie told Florence, in effect, that Mr Prentice had forged the signature on their mother's will or had made out the wrong will and that she, Sophie, was intended by their mother to be the sole beneficiary. In the letter she also made a complaint against Mr Prentice and Florence in connection with the opening and operation of a joint account to collect rent moneys from tenants of the Albert Street property. This complaint was, his Honour found, equally without foundation.

Before this Court Mr Callinan Q.C. for the appellants, whilst accepting that Sophie's accusations against Mr Prentice and Florence in respect of the will were totally without foundation, submitted that this conduct was devious and criminal but not necessarily delusional or a manifestation of insanity. It was, he submitted, consistent with a rational intention on the part of Sophie to prove that Florence had forged the will or exercised undue influence over her mother or perhaps committed fraud on her mother to induce her to sign it. His Honour plainly thought that a fanciful possibility and so do we. It was irrational for Sophie, in the circumstances in which her mother conveyed instructions for the drawing of the will and executed it, to make the allegations against Mr Prentice and Florence which she did.

Mr Callinan then submitted that this was remote in time from September 1990. It is true that it was nearly four years before. But its relevance is in showing recurring paranoid delusions about Florence; for in the context of her earlier accusations that Florence had tried to poison her, of her later accusations against Florence to which we are about to refer and the medical evidence to which we will also refer, that is its most likely explanation.

For a long time Sophie and Florence had had disagreements and arguments about the management of the Albert Street property. There was also a disagreement between them about some property in Greece in which Sophie appeared to be difficult but the evidence about her conduct in that context did not go beyond that. It is also true to say that, with respect to the Albert Street property a good deal of Sophie's conduct which was complained of could also be described as no more than difficult were it not for the other circumstances to which we have referred and to which we refer below. For example Sophie insisted upon the tenants paying rent separately to Florence and her, that is one half of the rent to each; and required that Florence and she each separately pay their share of outgoings.

Understandably both requirements caused difficulty, and the latter caused occasional late payment of outgoings with consequential loss of discounts. She also rejected the advice of a number of professional advisers to appoint an independent agent to manage the building, accounting to the sisters for the net surplus, or to have a joint account for that purpose. Taken in isolation, this conduct would be explicable as that of a person who was difficult but not irrational. Less explicable on a rational basis, however, was her refusal to accept, in discharge of a tenant's obligation, the rent payable under a lease when she thought that that rent was inadequate. She instructed her solicitor to demand from a tenant an amount greater than that provided for by way of rent in a lease because she apparently thought that the rent should have been higher than that fixed by the lease, for which she apparently blamed Florence.

It must also be said in support of the appellant's contentions that a strong emotional response by Sophie to the events to which we are about to refer would not have been irrational. Nevertheless, in the context of her other conduct, her conduct here also appears to have been irrational. Early in 1990 Victor Patti, a cousin of Sophie and Florence, commenced assisting Florence in the management of the Albert Street property. His assistance was not made known to Sophie, possibly partly because Florence knew that Sophie held bitter feelings towards Patti arising out of an earlier dispute in the Brisbane Greek community. In 1990 Wallace Bishop, who also owned a building in Albert Street, proposed a development which might have affected an easement which was used to give access to the sisters' property. As it was also used to give access to a property owned by Patti, Florence gave Patti authority on 14 April 1990 to act to protect her and her sister's interests in respect of the easement on the basis that they, the sisters, would not be liable for any legal costs. Proceedings were instituted in the Supreme Court on behalf of the sisters, Patti and at least one other property owner to restrain the development.

The action was settled on terms favourable to the sisters and the other plaintiffs. Although there was no question about Florence, and for that matter Patti, at all times acting in Sophie's best interest, Sophie did not hear about the action until she read about it in the Courier Mail on 21 July 1990. Moreover the article referred to Ms Florence Venery as the owner of the Albert Street property, making no mention of Sophie. All of this could have justified a very strong emotional reaction in a rational person.

In a letter to her cousin Irene on 3 September 1990 she wrote:

"I don't know if you've learned anything - the crimes that the monster Froso does. The cousins on the father's side know everything for some time now and certainly agree with her.

I didn't know anything. I learned about it when I read it in the newspaper and I went immediately to my solicitor and I am waiting."

The reference to "Froso" is to Florence. There is a further reference to the "monster Froso" later in the letter. The reference in the passage to the cousins on the father's side may be a reference to Mr Patti but may also refer to Mr Comino or his children. The reference to Florence's crimes appears to be a reference to her conduct with Mr Patti in respect of the Albert Street property. Mr Alex Frilingos also related a conversation with Sophie in which she told him that Patti, Palmos (another plaintiff in the above action) and Florence were trying to rob her. It is likely that this was said after Sophie had seen the article in the Courier Mail because it appears that, up to that time, she had no knowledge of Florence's involvement with Patti. She went on to say that they were trying to sell the premises without her knowledge. Sophie also told Mrs Brown in 1990, within one or two months of 4 July 1990, that her sister was trying to sell a city property that they owned and that she had somehow got wind of it; that her sister was trying to do this behind her back.

Then there was an incident described by Mr Tsikleas who operated a newsagency in the Crest Hotel. On a day which he identified as being a few days before 20 September 1990 Sophie came into his newsagency. He described her as being very very hysterical and speaking extremely loudly. She told him that her sister was spending all her money and that, together with Vic Patti, they were going to ruin her and take her property away from her.

And finally, when she attended the hospital on 20 September the hospital notes describe her as suffering "Psychiatric disorder? hypermania? paranoid schizophrenia". We will refer later to Dr Cobcroft's recollection of her condition on 21 September.

All of this is consistent with Florence's evidence that Sophie appeared to be hysterical about the matter. Florence said that she rang Sophie in response to a letter from her solicitor of 31 July 1990. She told Sophie that it was in their interest to maintain access to their building and consequently to be involved in the litigation. Sophie abused her, accused her of trying to take everything from her and threatened to kill her.

Mr Patti said that about six to eight weeks after the article appeared in the Courier Mail Sophie rang him and they arranged to meet a few days later. They did so and their discussion took several hours. At the end of it Mr Patti thought that Sophie appeared satisfied with his explanation of what had occurred and she told him that thenceforth he could accept Florence's direction in the matter.

It is difficult to reconcile Sophie's letter of 3 September 1990, her conversation with Alexander Frilingos, her conversation with Mrs Brown and her conversation with Mrs Tsikleas, on the one hand and, on the other, her conversation with Mr Patti and her apparent satisfaction in the result. The most likely explanation appears to be that Mr Patti's meeting with Florence was a little more than eight weeks after 21 July and that it was after Sophie's outburst at Mr Tsikleas' newsagency a few days before 20 September.

Whatever the explanation for this inconsistency is, the letter and the conversations with each of Alexander Frilingos, Mrs Brown and Mr Tsikleas show an irrational response to the newspaper article of 21 July. It did not state or imply that the Albert Street property was to be sold. There was no suggestion of anything else which could have provoked this response. Moreover Mr Tsikleas' evidence shows that, at least by 17 or 18 September Sophie was in a highly emotional state of animosity towards Florence. The earlier conversations to which we have referred make it likely that this state was existing, although perhaps growing, from the time when Sophie saw the article in the Courier Mail.

It is true that there were witnesses who did not observe any signs of this state, including Mr Halligan, a solicitor who prepared and witnessed the execution of the will. But the fact that she did not always exhibit signs of her state is consistent with the opinion of Dr Barclay, whose opinion his Honour accepted, and to some extent, with that of Dr Varghese.

Before turning to the psychiatrists, Professor Varghese and Dr Barclay, neither of whom had ever seen Sophie but who each gave evidence of her psychiatric condition on the basis of the evidence of others, it is convenient to discuss the evidence of doctors who observed Sophie during her life.

Those who appear to have had the best opportunity to observe her over a prolonged period were Drs Cobcroft and Grimes who were involved in the treatment of her leukemia.

Dr Cobcroft, who was director of haematology at Princess Alexandra Hospital, saw Sophie from October 1988 until her death on numerous occasions when she attended for treatment, sometimes as an in-patient, at Princess Alexandra Hospital.

In November 1989 Dr Cobcroft wrote to her general practitioner, Dr Moo, expressing concern at her very florid paranoid psychosis with no insight whatsoever. He said he thought it might be necessary to regulate her as she might become a danger to herself and others. By "regulate" it appears he meant place her under control pursuant to the Mental Health Act. However she improved and, according to Dr Cobcroft, did not require medication for mental illness.

However on occasions she exhibited paranoid delusions. One which he could recall was of her next door neighbour pumping gas under her door. He thought that generally, if you did not touch on a subject that concerned a paranoid delusion, you could have a normal conversation with her. He agreed however that her capacity to make a will would be impaired to the extent that a target of her delusional condition might be a potential beneficiary.

Dr Cobcroft did not have the opportunity to see Sophie between 22 June 1990 and 20 September 1990 because she did not attend at the hospital, as she should have, during that period. However when she was admitted on 21 September he thought that she was expressing paranoid ideas regarding the nature of her infection. She apparently then had skin lesions which were a consequence of her medical condition.

However she claimed to have to wear gloves because, amongst other things people threw darts at her and this was what caused the problem.

Dr Grimes, who was then a trainee oncologist, working under Dr Cobcroft, saw Sophie over a similar period although he did not see her on 21 September as he was on holiday leave from 8 to 24 September. Over the period that he saw her he noticed that she demonstrated intermittently delusional ideas, for example that her neighbours were shooting ray guns under her door and were gassing her.

Dr Schneider is a psychiatrist to whom Sophie was referred for psychiatric assessment by someone in the unit of which Drs Cobcroft and Grimes were members on 30 January 1990. One of the reasons for this was paranoia, in particular complaints of being gassed. Sophie had earlier said to Dr Cobcroft that she did not want psychiatric help. She denied to Dr Schneider that she had ever made the complaints which she had made to Drs Cobcroft and Grimes. He was asked whether, when he saw her, she had the capacity to make a will and he answered that she did have that capacity. However he went on to qualify this where she had some delusion which was linked in some way to a relative, by which it is plain he meant a prospective beneficiary. This confirms the evidence of Dr Cobcroft in this respect.

Dr Sinnett was a medical registrar at the Princess Alexandra Hospital on 20 September 1990. On that night Sophie told him that lesions on her arms, which were, as we have already said, caused by her medical condition, were the result of people touching her and throwing darts at her and that she wore leather gloves in the shops for that reason.

The only other medical practitioner who saw Sophie was her general practitioner Dr Moo. He saw her 14 times between 4 May 1985 and her death. His contacts with her were very brief on each occasion and on each of those occasions she required hospitalisation for her medical condition. In that context he said that he did not observe any abnormalities of personality. His evidence in consequence is of almost no value on this question.

We turn now to the two psychiatrists who furnished reports and gave evidence based on what they had read or been told by others. They were Dr Varghese who gave evidence for the appellants and Dr Barclay who gave evidence for the respondent.

It is not entirely clear where the difference of opinion between these doctors lay. Their apparent difference of opinion as to what constituted schizophrenia seems to be one of terminology or, as Dr Varghese called it, "diagnostic style", rather than of substance. They agreed that Sophie had a personality disorder which they described in similar terms. Whether that disorder should be labelled schizophrenia appears to be irrelevant. What were important were its characteristics and its consequences.

Dr Varghese agreed that the disorder included, as an element, delusions. That could hardly be denied. He also conceded that, if Sophie believed that Florence was scheming with Mr Patti to take her property away, this would have been delusional. He was also prepared to accept that, if a delusional idea involved a potential beneficiary, then testamentary capacity could be lacking in that respect.

The difference between them appears to be as to whether, at the relevant time, Florence was an object of Sophie's delusions so as to render her judgment with respect to Florence relevantly irrational. That question depended very much on the evidence from other witnesses whom the trial judge accepted. But it also depended on how much of that evidence was available to each of the doctors when he was asked to give his opinion.

The learned trial judge preferred Dr Barclay's evidence. He
said that this provided a more complete explanation for
Sophie's behaviour, as ultimately emerged in the evidence.
He mentioned specifically in this context that Dr Barclay
was the last witness called.

Dr Varghese first expressed his opinion in a report dated 12 January 1994 based on Sophie's medical records only. When he commenced to give evidence on the second day of the trial, 8 February 1994, he was asked about Florence's answers to interrogatories, which he had not seen. His evidence was then adjourned and he furnished a further report the following day, after seeing those answers, and gave evidence that day. At that stage most of the medical witnesses had given evidence but none of the lay witnesses to whom we have referred, apart from Mr Halligan, had. Dr Barclay was the last witness called and the only witness called on the ninth day of the trial. He furnished his report on the eighth day of the trial after reading much of the transcript. This was the relevance of his Honour's remark, in assessing the relative reliability of the evidence of Drs Varghese and Barclay, that Dr Barclay was the last witness called.

This case illustrates, once again, the disadvantages of adversarial expert evidence. One may legitimately wonder whether, if Drs. Varghese and Barclay had been asked to produce a joint report on the basis of the evidence which the learned trial judge accepted, there would have been any difference in view between them. Moreover the adversarial nature of the proceeding appears to have caused Dr Varghese to express some views which, it seems to us, detracted from the overall reliability of his evidence; for example he was prepared to ascribe Sophie's complaints about being poisoned merely to her being very fastidious about food and he wondered whether her statement that people were throwing darts at her might be a reference to her having had lots of injections.

Both Drs Varghese and Barclay gave evidence at some length including under extensive cross-examination. The learned trial judge had the advantage, which this Court lacks, of forming an impression on the reliability of the evidence of those witnesses based on seeing and hearing them. In the light of that advantage and of the matters to which we have already referred we would not be prepared to substitute our own view of the respective reliability of their opinions for that of the learned trial judge. On the contrary we would agree with his Honour that Dr Barclay's evidence appears to provide a more complete explanation for Sophie's behaviour as it ultimately emerged in the evidence. Dr Varghese had said that a psychotic episode, in a person with Sophie's condition, could be brought on by illness or major psychological trauma. Dr Barclay agreed with this. He added that he thought that Sophie's condition had been aggravated both by illness and psychological trauma in the period leading up to September 1990. He thought that she must have been physically quite ill between July and September 1990. She would then, he thought, have been anaemic and this could have caused some relative anoxia to her brain. This in turn can cause psychotic paranoid decompensation, particularly in a person like Sophie. He also thought that the publication of the article in the Courier Mail and its consequences were extremely stressful to Sophie. And he thought that the combination of physical illness and psychological stress aggravated her paranoid delusions towards Florence.

The evidence, in our view, justifies the conclusion which his Honour reached that, on 12 September 1990, and for some time prior to that, Sophie was suffering from a paranoid delusion involving Florence which prevented her from being capable of making a rational decision as to whether or not to include Florence in her will. In that event we are unable to conclude that the judgment pronounced below was wrong and the appeal should therefore be dismissed.

The respondent seeks an order that the appellants pay the costs of the appeal. The appellants submit that, in the event that the appeal should fail, the costs should be paid out of the estate. As there were no special circumstances the respondent's submission must in our view be accepted:

Timbury v. Coffee (1942) 66 C.L.R. 277 at 293.