Brown v Sandhurst Trustees Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN THE PROBATE JURISDICTION

COMMERCIAL AND EQUITY DIVISION
IN THE MATTER of the will of DANIEL DUGGAN deceased

PROB 55 of 2006

JOHN BROWN and MAXWELL JAMES SMITH (who sues as executor of the will of Lynette Smith deceased)	Plaintiffs
V
SANDHURST TRUSTEES LTD (which is sued as executor of the will of Daniel Duggan deceased)	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-24, 27-30 April, 1, 4 May 2009
DATE OF JUDGMENT:	4 June 2009
CASE MAY BE CITED AS:	John Brown v Sandhurst Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 212

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WILLS – probate – application for revocation of probate – whether testator lacked testamentary capacity – whether testator made will when subject to operative delusions

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. J. Riordan SC with Mr R. H. Miller	Deacons
For the Defendant	Ms C.H. Sparke with Ms L.M. Englefield	O’Farrell Robertson McMahon

HIS HONOUR:

Introduction

The plaintiffs seek orders that the Grant of Probate made to the defendant on 24 August 2006 of the will of Daniel Duggan deceased dated 12 October 2004 be revoked and that the Grant be delivered up to the Registrar of Probates for cancellation.

The ground of the plaintiffs’ application is lack of testamentary capacity at the time of giving instructions for the will in September 2004 and thereafter. The plaintiffs contend that the deceased was not, by September 2004, of sound disposing mind, that he did not dispose of his property with understanding and reason, that he did not recall or understand the claims of his only family members and that he was suffering from mental disorders comprising delusions, hallucinations and Alzheimer’s disease, all of which influenced the terms of his 2004 will. More specifically, the plaintiffs say that the deceased made his 2004 will under three principal operative delusions, namely, that:

(a) his family were just waiting for him to die so that they could get the money;
(b) a great-nephew (Paul Smith) was responsible for the loss of the deceased’s driving licence which resulted in his life being “murdered”;
(c) his niece (Lyn Smith), his nephew (John Brown) and his great-nephew (Paul Smith) were responsible for taking away his independence by putting him in care and taking him from his home.

Daniel Duggan was born on 22 February 1913 and died on 30 June 2006. The deceased never married and left no children. His parents and only sibling, a sister, Bella, predeceased him. Bella died in February 1995. Bella had two children, the first plaintiff, John Brown, and Lynette (or Lyn) Smith who was the second plaintiff but who died on 26 December 2006 and whose estate is now represented by her executor, her husband, Maxwell (or Max) James Smith.

The estate, both at the date of the will and at the date of death, consisted of a residential property at Barnard Street, Bendigo, farming properties, comprising some 659 hectares (at Bridgewater and at Woodstock on Loddon), and cash investments of around $1.5M. The total value of the estate according to the inventory lodged on the application for probate was $2.761M.

By his 2004 will, the deceased gave $80,000 to John Brown, $40,000 to Lyn Smith, $2,000 to a cousin Olive Carey, $50,000 to each of 30 charitable or community organisations, $50,000 to the lodge or nursing home at which he was residing prior to his death and the residue as the corpus of a trust fund for the purpose of providing an annual scholarship for a student attending an agricultural college or institution in Victoria.

By contrast, in his penultimate will dated 30 July 1999, after naming the defendant as executor, the deceased left his house at Barnard Street, Bendigo to Lyn Smith (inventory value $160,000), his investments with Colonial Ltd to John Brown (inventory value approx. $72,000), $500 to Olive Carey and the residue to his “great nephews”[1] and “great niece,”[2] the children of John Brown and Lyn Smith respectively, in equal shares.
[1]The great-nephews of the deceased were the four sons of Lyn and Max Smith (Darren, Andrew, Paul and Philip) and the son of John Brown (Michael).
[2]The great-niece of the deceased was the daughter of John Brown (Lisa).

The deceased was an eccentric and very independent person. He was profoundly deaf and people had to speak to him in a loud voice even if he was wearing his hearing aid. He was a renowned miser who would spend the absolute minimum on or for himself and he assiduously avoided making any donations to charity or giving any pecuniary assistance to anyone else. He resisted any significant expenditure in relation to his farming properties (such as any contribution towards the replacement of dilapidated boundary fences). The main interests of the deceased were farming, local community gossip and football. He appeared uncomfortable with the company of women. He expressed a dislike of “city people” and a disdain for education. He was a small man who apparently felt the cold and dressed in several layers of clothing. He lived for a long time in what many described as primitive and filthy living conditions. The Bendigo house never had a hot water service or a telephone connection.

Background facts

Whereas the plaintiffs’ case was that the deceased lacked testamentary capacity in 2004 as a result of a number of operative delusions, the defendant’s case was that the deceased was a very eccentric individual whose habits and conduct had for a long time been very unusual but that the deceased was, in 2004, essentially no different to what he had been for many years and that he was not suffering from any mental disorder. In the light of those competing submissions, it is necessary to consider the evidence in some detail but, even so, it is not appropriate or necessary to refer to every aspect of the evidence that the parties put before the Court by way of affidavits and oral examination as well as by medical records, correspondence and other documents. The following account of the evidence is of the facts as I find them and is principally based on the evidence of Lyn, Max and Paul Smith, John Brown, Neil Athorn and Nathan Dean and upon some of the medical records and correspondence admitted in evidence. I have also taken into account the evidence of the other witnesses but I will deal separately with the evidence called from the two proprietors of Lansell Lodge and two local farmers who knew the deceased. I will also deal separately with the expert psychiatric evidence called by the plaintiffs.

The deceased was the son of William and Mary Duggan. He was raised on a farm at Bridgewater and made his living as a farmer. His sister Bella married Allan Brown in 1936 and lived in Melbourne – her son, John, was born in 1940 and her daughter, Lyn, was born in 1945.

Bella and Allan Brown were both school teachers. When John and Lyn were young, they were taken by their parents on all school holidays and breaks (Christmas, Easter, first term and second term) to stay at the Bridgewater farm with their grandparents and the deceased. John Brown deposed that during this period he stayed for 10 to 12 weeks at the farm each year and that he spent every day with the deceased and got involved in many jobs and chores with him around the farm.

William Duggan died in 1958. Also in that year, John Brown commenced university studies.

In 1965, Lyn married Max Smith. In the same year, the deceased moved into a house at 354 Barnard Street, Bendigo so that he could be closer to his mother who, due to illness, had been placed in “Lilley Lodge,” a nursing home in Bendigo.[3] The deceased continued farming, driving from Bendigo to the farms for many years. From 1966 to 1969, John Brown was overseas, playing on the tennis circuit, but every summer he visited the deceased at the farm and at his Bendigo house. In or about the mid-1980s, the deceased leased out his Woodstock farm property to a neighbour, Mr Pickering, but he continued to manage the Bridgewater farm until about 1996. Mary Duggan died in 1967. In the early 1970s, John Brown met his future wife Wendy, and, shortly after they met, he took her to Bendigo to meet the deceased and to Bridgewater to see the farm. John and Wendy made a number of other visits to the deceased prior to their marriage in 1974. After their marriage, they continued visiting the deceased, and, until 1983, they saw him at least once each year. In 1983, John Brown and his family moved to Queensland but he continued to make occasional visits to the deceased. He also kept in touch with the deceased through his mother (who regularly visited and looked after the deceased) and through his sister.
[3]I do not think that the evidence is clear as to whether the deceased at all times lived alone in Bendigo or whether his mother lived with him – but it is immaterial.

The deceased lived alone in the Bendigo house until he was admitted to residential care in late 2003.

Over the years, Lyn and Max Smith maintained regular contact with the deceased. In the period from about 1969 to 1995, they visited the deceased in Bendigo about five or six times per year.[4] In the period 1978 to 1983, Bella, Lyn and Lyn’s children spent the September school holidays and some weekends at the deceased’s farm. Max, who had been a wool classer, used to talk with the deceased about farming and in particular about sheep, shearing and the wool market. On his visits, he also helped the deceased around the farm. Max Smith deposed that the deceased was mad about sport, especially football. He watched sport on television but would not allow it to be on for any other purpose. He discussed football players in detail and kept track of the local lads who made it to the VFL.
[4]Save that from 1978 to 1981 due to their parental responsibilities for their young children, they visited about two or three times per year.

In about 1981, the deceased fell over and fractured his femur whilst drafting sheep and he was admitted to Inglewood Hospital. He was there for 8 weeks and Bella, Lyn Smith and her sons visited him each weekend. When he returned to the Bendigo house, Bella stayed on and looked after him for about 3 months.

For many years the deceased arranged for his taxation returns to be completed by the defendant and also had a number of cash deposits with the defendant. In about 1985, the defendant allocated Neil Philip Athorn (“Athorn”) to be the staff member to assist the deceased with his personal affairs. Athorn had contact with the deceased about four times a year until the late 1990s when he started to have more involvement with the deceased in managing his affairs.

In or about October 1991, the deceased’s driving licence was cancelled, the police having concluded that his driving was too slow and unsafe. This caused the deceased enormous distress because he had depended on his licence to get to and manage his Bridgewater farm property and generally get around. The deceased’s then general practitioner referred him to the Anne Caudle Campus of the Bendigo Health Care Group (“the Anne Caudle Centre”) for outpatient driver rehabilitation. There is a letter from the deceased, written in or about October 1991 and after the cancellation of his driving licence, on the Anne Caudle Centre file. The letter is apparently addressed to someone at the Anne Caudle Centre. The letter is coherent and shows an understanding of the reasons for the cancellation of his driving licence, as being related to his driving ability and health, but the letter also shows a tendency towards suspicion (perhaps paranoia) in that the deceased stated “I do not know whether you are acting under instruction to give me such a bad report or not.”

The attempts by the deceased to regain his driving licence constituted a continuing saga and clearly became for the deceased a matter of obsession. Records from the Anne Caudle Centre provided the source for the history of these attempts. I interpolate here that these records (and medical and other records) were introduced into evidence by one or other of the parties without objection from the other and relied upon by each of them, notwithstanding the hearsay nature of the material and without express reliance upon any provisions of the Evidence Act. The Anne Caudle Centre records relating to November and December 1991 show that the deceased had problems in relation to the knowledge of road laws and reaction times and some concerns are expressed by the occupational therapist as to whether the deceased had an awareness of the “full implications of the licence cancellation” or an insight into the reasons for his loss of licence. There are also references to short-term memory problems and “some cloud in thought processes” although the notes recognise that some of his problems might be due to his hearing impairment rather than an inability to understand. However there is a reasonably coherent letter on the file from the deceased to the occupational therapist (Mr Haughton) expressing disappointment and showing an understanding of the reasons for his loss of licence.

In January 1992 the deceased failed his driving assessment but, in March 1992, he obtained a learner’s permit.

From the time when he lost his driving licence until shortly prior to his sister Bella’s death in February 1995, Bella used to drive the deceased around when she visited Bendigo or would accompany him when he was able to drive on the learner’s permit that he had obtained. After Bella’ death, the loss of his licence became even more of an acute concern to the deceased.

Probably in January 1995, the deceased wrote a letter to his sister as follows:

“Sorry to hear you are in trouble. hope by this time you are improving got Lyns card but did not know her address and not much good at these Phone Boxs had a few failures. Olive seem to think that you are not too good so hope you are [not] as bad as she thinks Greta Christensen youngest son died a couple of days ago. he was 55 don’t know what happened him. They sold their Bridgwater house. have sold most of my sheep only got about 20 on the river paddock have had other sheep on agisment (sic) on other paddocks anyway you have to take it easy from now hope you can read this so hoping you get better soon I am pretty well.”

The Smith family always celebrated the deceased’s birthday and Christmas with the deceased and gave him birthday presents. They took him to a restaurant to celebrate his eightieth birthday in February 1993 (he had never been to a restaurant before). Lyn and Max Smith and their sons and wives celebrated the deceased’s eighty-fifth birthday with him on the farm in 1998. Lyn Smith took him to cousins’ funerals and to a cousin’s wedding. From time to time, they attended to various other interests and needs of the deceased.

After Bella’s death, and until about 2001, Lyn and Max Smith visited the deceased every 2 to 3 months and, on those visits, they cleaned the Bendigo house and cut firewood for the deceased. On two occasions when Lyn and Max Smith visited the deceased at Bendigo for the day but did not stay for the whole weekend, the deceased became agitated and said on both occasions words to the effect: “Why are you going? Why don’t you stay longer? You can go home tomorrow.” From about 2001 until the deceased moved out of his Bendigo house, Lyn and Max Smith visited the deceased more frequently in order to assist him.

In August 1995, an occupational therapist working at the Anne Caudle Centre, Julie Flynn, noted that the deceased had driven with a learner’s permit for about three years with his sister in the car but that his sister had died earlier that year. She further noted that the deceased was living in Bendigo but still trying to manage the farm at Bridgewater but it was not likely that he would regain his driving licence. The notes on the file from this period until about February 1996 show attempts by the deceased to gain a restricted licence and that he was subjected to various road tests and other assessments. On 13 February 1996, Julie Flynn wrote to the deceased noting that his learner’s permit had expired and asking what his plans were. She also mentioned that he had agreed to remedial driving lessons but had only had one but that if he continued with the lessons she would seek a renewal of his learner’s permit. On 19 February 1996, the deceased responded in a letter that is not entirely comprehensible but that refers to having had two more driving lessons and in which the deceased oddly states “I still require my licence if it can be obtained and still not sure whether Julie Flynn is an inspector therapist or an expert of some business.”

On 5 March 1996, Vicroads issued a learner permit to the deceased from 6 March 1996 to 6 May 1996 conditional upon him driving whilst accompanied by a driving instructor in a dual-controlled car or by an occupational therapist for the purpose of an assessment. On 13 March 1996, the deceased wrote a letter to Lyn Smith in which he referred to having had a couple of runs with the learner’s permit. The letter, whilst not particularly literate, is far more coherent than later correspondence to which I will refer. There is other undated correspondence from the deceased to Lyn Smith written around this period with reasonably coherent structure and expression and which contains references to her children Paul, Darren and Andrew.

On 13 March 1996, the deceased wrote to Lyn Smith, mentioning the wedding of her son Darren, as follows:

“I hope everythink goes well at the wedding. Had Bella been there I might have felt like making a bigger efford. have had a couple more runs with the learners permit for the license have not had the license tester yet. I think I am doing alright as there are five people who came up to the Inglewood hospital to see me, have died lately.
I send a cheque so you would be able to get Darren something for the occasion. Have not seen Olive and co for a long time as Darren was always Bella favourite so bad luck she went.”

A letter from Julie Flynn to the deceased 26 June 1996 expresses her understanding that he had decided not to try and obtain a further learner’s permit. A letter from a local Bendigo member of parliament to Julie Flynn, dated 10 July 1996, indicates that the deceased made several visits to his office expressing concern that his driving licence had been “suspended.” Julie Flynn wrote to the deceased seeking permission to respond to the parliamentarian’s letter with relevant information about his driving assessments. By letter dated 6 August 1996, the deceased replied to Julie Flynn stating that he had never spoken to the particular parliamentarian but had called at his office to see if he could get help to get to his farm. The letter goes on, again showing a degree of suspicion (or perhaps paranoia):

“I would not want [you] to discuss my business with him without discussing with me first – disappointed you make arrangements with [named driving instructor] and having no intention of giving me a licence having driven for over 60 years and carted sheep to the Bendigo market for over 40 years without an accident however if you got no respect for me if I’m not good to go up the back roads [named person – indecipherable] is out to destroy the farm as he would not give me a test.”

On 19 August 1996, the deceased wrote again to Julie Flynn stating:

“On visiting Vicroads they told me to go back to Anne Caudle but if you cannot see any prospect of getting a licence to drive from Harrisons [a friend or neighbour of the deceased] to my property…it is not much value. Seeing my sister was re-licensed two months before she died to play bowls in Camberwell it is hard to follow. However it’s your decision…have driven to Bridgewater from Bendigo for 20 years 5 and 6 days a week.”

It would seem that, at or shortly after this time, the deceased let out his Bridgewater farm to Mr Gath, a local farmer whom he knew.

In February 1997, the deceased wrote another letter to Julie Flynn stating inter alia:

“On talking to Mr Smart [driver licensing, Vicroads] he told me he was going to talk to you to discuss my position. On going back he won’t have anything to do with me so apparently you must have convinced him that I must have been a mental case or a criminal or whatever and I was told it was no good coming back here…”

In the last-mentioned letter, the deceased went on to discuss various problems in relation to his properties and expenses that he had incurred in trying to get a licence.

By letter dated 12 February 1997, Julie Flynn replied to the deceased explaining that she could only carry out another driving assessment if he had a learner’s permit. On or about 5 March 1997, the deceased failed the learner’s permit test. On 17 March 1997, the deceased wrote to Mr Smart (of Vicroads) in relation to the test, stating inter alia:

“as I realise the importance of your role but I was disappointed at the questions you had – they were all city questions…I understand that some of the dealers have encouraged Julie to keep me off the road that they wanted to obtain my property and divide it up. They told before I went to Anne Caudle that they were going to make me hand it over to them at their terms as I am not broke yet still hoping to get permission to drive around the back roads.”

In the last-mentioned letter the deceased goes on to complain about past treatment and the fact that he never had an accident. The letter is still reasonably coherent, although again evincing signs of suspicion (or perhaps paranoia). It is obvious from this letter (as from other letters) that the deceased was not particularly literate and the spelling and punctuation is not wonderful but the sense is still reasonably clear.

By letter dated 7 April 1997, the deceased wrote to Mr Smart talking about problems with his farm properties in quite coherent terms and asking in substance whether there was any “section of the law” that would allow him to get a licence to drive up the back roads. Mr Smart replied stating that there was no provision within the Road Safety Act that would assist.

In November 1997, the deceased failed another learner’s permit test. Mr Smart noted that Mr Duggan was not as alert as he was on the test earlier that year: “he would complete the question, mark an answer, and then attempt the same question again without recalling he had just attempted same. Without the significant help he received, the result would have been much worse…” and “when I informed him of the result he was disappointed stating that the test was too difficult and disputing the reason he had to do the test as well as the questions and the answers. He said that he had been treated unjustly by the police, Vicroads and the Occupation[al] Therapist.” Mr Smart added that he believed the deceased did not have the mental capacity or the stamina to attempt this test again.

By letter dated 10 November 1997, the deceased wrote again to Mr Smart expressing his disappointment at not being allowed to drive, generally “rambling on” and concluded by saying that at his age it was difficult to go and talk to a lawyer.

By letter dated 31 March 1998, the deceased wrote again to Julie Flynn stating that he had received a report from the member of parliament “that you classed me a dangerous driver…” He went on to say that:

“the person that told the truth and a lot of lies certainly controlled you. As she has 3 homes including a new brick home, a millionaire husband and my family is desperate to claim my property with your help as her husband may not be able to hold any more…Mr Harrison took me out a couple of times but they stopped him from taking me out as that person and his son want to claim some of my property as she has two homes already from old people.”

The evidence does not disclose who the person with a new brick home and a millionaire husband might have been but, irrespective of this, the paranoid tendencies are again evident.

At about the same time, the deceased wrote along similar lines to Julie Flynn saying that he was disappointed that Vicroads was not going to let him drive around his property and repeating statements about a person with two houses in Melbourne and a millionaire husband who was somehow connected to the question of his driving licence.

An internal referral form of Anne Caudle Centre, dated 22 June 1998, in reference to the deceased, states “? Early dementia.”

On 2 July 1998, Andrea Floyd, a nurse care advisor with Anne Caudle Centre’s home assessment and rehabilitation team, visited the deceased at home. Her report queried memory loss. She referred to the deceased’s repeated discussion of driving assessments and his reluctance to have involvement from anyone at Anne Caudle Centre. She noted that the deceased was poorly groomed and wearing seven layers of clothes (jumpers and shirts).

By letter dated 10 July 1998, Danny Stone, a registered psychiatric nurse with the aged persons psychiatric service at Anne Caudle Centre, wrote to the deceased’s then general practitioner, saying that the deceased had been referred to the aged persons psychiatric service by Dr Ferres of the Centre’s home assessment and rehabilitation team. Mr Stone said that the deceased was experiencing difficulties coming to terms with the cancellation of his licence and queried the possibility that he was becoming delusional. Mr Stone said that, on assessment, the deceased was extremely concrete in his thinking and found it difficult to understand why he had his licence cancelled but that otherwise there was no evidence of depression or psychosis and that, in regard to his cognitive ability, he scored a perfect score on a mini-mental test (MMSE).

The plaintiffs called as a witness one Malcolm John Christensen, whose family had farmed, since 1908, a property in Bridgewater adjoining that of the deceased and his family. Mr Christensen deposed that the deceased and his father were the best of mates until his father died in 1982 and that, after the death of his father, he knew the deceased better than anyone else, apart from the deceased’s own relatives. From about 1971 until about 1989, the deceased and Mr Christensen had a share-cropping arrangement. The arrangement was terminated by the deceased after he had blamed Mr Christensen for some extra transportation costs that, according to Mr Christensen, he wrongly believed he had been charged. Mr Christensen testified that the deceased was extremely frugal, both on and off the farm. He did not do any significant maintenance or improvements on his farms and rarely employed people to help him. After 1989, Mr Christensen saw less of the deceased but he did see him on some occasions. On one occasion, the deceased told him that his licence had been taken away from him by Vicroads. On subsequent occasions, either when he visited the deceased in Bendigo or when the deceased was visiting his Bridgewater farm, the deceased would always talk to Mr Christensen about his licence being taken away from him, as well as on farming or sporting topics.

In the period from August 1998 to February 1999, the deceased wrote a series of letters to Mr Christensen. The letters are rambling and occasionally offensive and, again, not very literate but reasonably coherent. A number of the letters refer to his driving licence problem and in one of them he says, “When your over 80 you are forced to go to Anne Caudle hospital if you want a drivers licence.”

In the period from 1997 to 1999, Paul Smith (Lyn Smith’s son) was living and studying in Bendigo. Paul visited the deceased every Friday. Paul spent hours with the deceased, chatting with him, and, on occasions, did jobs for him such as taking him shopping, filling up his petrol can, taking him to the bank, visiting the farm. Paul often spent nights at the deceased’s house when his mother also stayed overnight. Paul deposed that he would also take some of his friends to meet the deceased. He deposed that the deceased was always asking about Paul’s life, how his mother was, how his brothers were going and what his friend (who played in the local football team) was doing.

In early 1999, John Brown visited the deceased at his Bendigo house. He found the deceased hunched over the radiator with the television blaring. The deceased looked at him for many minutes but there were no signs of recognition. John Brown shouted at him “it’s Johnny.” After a delay, the deceased acknowledged him. John Brown deposed that the deceased was in a frightful condition. His clothing was greasy, he had on many layers of clothing. He was in danger of setting himself alight, so close was he to the radiator. The whole house – not just his clothes – reeked of urine. John Brown told the deceased that he was going down the street to get some food for him. John Brown deposed that on a number of occasions he offered to provide things to improve the lot of the deceased but “had to back off” because the deceased would “turn very angry and nasty” and make sharp comments about “people interfering in my life” and “city people don’t understand country people.”

On another visit in 1999, John Brown came into the house, told the deceased who he was and that he was going to get him some lunch. He returned with food and drink but the deceased did not appear to notice. Conversation was difficult. The deceased said that nobody had told him that his (John’s) mother had died and said “why did she die?” John Brown reminded the deceased that he had attended her funeral.

In mid-1999, the defendant prepared a will on the instructions of the deceased. On 13 July 1999, the deceased executed this will, appointing the defendant as executor, giving to Lyn Smith his house in Bendigo, to John Brown the proceeds of all bonds and other investments held with Colonial Ltd, the sum of $500 to his cousin Olive Carey and leaving the residue of his estate to his great-nephews and great-niece, naming them, in equal shares (contingent upon them surviving him and attaining 25). I note here that Max Smith, although he did not specify the dates, testified that on two or possibly three occasions he recalled the deceased saying “the farms have got to stay in the family, I have promised my mother that I will keep the farms in the family.”

In August 1999, the deceased fractured two vertebrae when he fell off the roof of his house. According to Anne Caudle Centre medical records, on 13 August 1999 the deceased was found by a “meals on wheels” worker sitting in his own filth and suffering from severe back and calf pain and unable to walk or stand up straight. Apparently the “meals on wheels” worker brought him into the Anne Caudle Centre and he was admitted to the Bendigo Hospital. Lyn Smith came to Bendigo on or about 16 August 1999 and accompanied an occupational therapist from Anne Caudle Centre in a visit to the deceased’s house (in his absence). The occupational therapist recorded that there appeared to be “a severe health environmental hazard…6 rats caught last week…rats have eaten hearing aid….no heating apart from bar radiator….no hot water, no shower facilities…worn carpet, mats everywhere, holes in floor…filthy dirty clothes/bed linen (bed linen not washed…). Clothes only washed when niece (and her husband) able. Niece v. concerned re Daniel returning to these living conditions, especially in view of further risk of falls.”

The records show that, on 18 August 1999, the deceased agreed to go to special accommodation and that “he couldn’t manage at home at present on his own – still hopes that he will get home again when well. Niece has booked bed at View Hill Lodge – niece has to go back to Melbourne Friday…” The notes record that on 21 August 1999 the deceased was ambulant with a frame and was discharged from hospital to View Hill Lodge, and that his niece was with him. Whilst at View Hill Lodge, it was recorded in medical notes that the deceased understood the nature of an enduring power of attorney, that he was “aware of property he owns/bills etc” and the opinion was expressed that he had the capacity to give an enduring power of attorney. After spending some time at View Hill Lodge, the deceased returned to his Bendigo house.

While the deceased was at View Hill Lodge, John Brown visited him twice. John Brown deposed that the deceased was very cranky at the people who had “put him in there” and constantly said that “you should not interfere in my life.”

Notes by the Anne Caudle Centre home assessment and rehabilitation team on 6 March 2000 record that a reassessment had been requested because the deceased had “wanted meals on wheels cancelled due to cost factor.” Lyn Smith was informed who said that the deceased had no financial difficulties and was quite well off but she advised that the cancellation of his meals should be accepted as he might be sick of them or able to manage meals himself. Lyn Smith said that she would be coming to Bendigo in two weeks’ time and would check on the deceased then and would also contact Olive Carey. A further note of 17 March 2000 indicates that the deceased was accepting “meals on wheels” although still stating that he could not afford them.

In the period 2000 – 2001, John Brown visited the deceased on more than six occasions. John Brown deposed that the condition of the house kept deteriorating and that the deceased was unkempt, dirty and that a strong smell of urine was over him and the house.

In the period from 2001 to August 2003, Lyn and Max Smith visited the deceased more frequently than previously in order to assist him. They would travel to Bendigo on Saturday morning and return to Melbourne on Sunday evening.

Max Smith deposed that their routine was always the same. His first job was to clean the toilet which was always covered in faeces which would also be up the wall and on the door.[5] He would hose the walls, door and toilet and scrub the whole lot with a big brush. Once he had cleaned the toilet he would take the deceased out shopping so that Lyn Smith could clean the house. This was a disgusting job and usually took a whole day. Lyn Smith had to use caustic soda on many occasions to remove the build-up of fat and grime on the benches, tables, walls, floor, doors, crockery, cutlery, saucepans, the stove, and the microwave (an item which Max Smith had organised, at some point, to be installed for the deceased). After shopping, Max would take the deceased to clean his clothes. He would put his clothes into washing machines – usually there was enough washing for three machines – but the deceased would complain about the cost and shove all of his clothes into one machine. On Sunday Lyn and Max Smith and the deceased would all go to the farm and Lyn and Max would cut wood for the fireplace at his house in Bendigo – this was, for some time, the only source of heating in his house.
[5]Cross-examination suggested that this problem was caused by the deceased “missing the mark.”

On each of these visits, the deceased would talk about his cars and utes and how he need to repair them (despite having lost his driving licence) but he would never spend the money necessary to have them repaired. Max Smith deposed that he told the deceased that the cars were unroadworthy and that he could not drive them. Max Smith further deposed that the conversations of the deceased became more focussed on the past; he spoke less about and showed no interest in the football and Lyn and Max’s children’s sporting activities, which had previously been of interest to him.

Max Smith also said that he assisted with farm and house maintenance – for example, he installed a new power circuit, changed light bulbs, fixed light switches, re-plumbed the kitchen sink, stabilised a ceiling, re-built a collapsed chimney, fixed the roof on a wool shed, and repaired wiring on fences and rotten fence posts.

Max Smith deposed that by about 2001, he noticed that the deceased had started to decline appreciably; he no longer talked about sport, he watched football but did not follow the players and could no longer discuss them in any detail like he used to.

Max Smith deposed that, by 2002, the deceased could no longer sit and watch a full game of football and that, although he continued to bring up the Saturday newspaper for the deceased to read, he no longer read the sports section in detail as he had.

In early February 2002, John Brown visited the deceased over two days. I was not satisfied that John Brown had a good recollection of the deceased’s conversations on this occasion. However, it is clear that it was on this occasion that John Brown put to the deceased what he described as a “business proposition.” I am satisfied that he told the deceased that he had a company called “Spartan” and that there were 20 shares at $15,000 each and that he suggested that the deceased take up 2 shares for $30,000. John Brown testified and I accept that he formed the view that the deceased did not understand his proposition, or at least that there was no response from the deceased, so he did not persist with it.

On Sunday 2 June 2002, John Brown visited the deceased and found him sitting hunched on top of the radiator. He walked up to him and shouted “it’s Johnny.” He had to repeat this four or five times before the deceased responded. John Brown deposed that the deceased still appeared not to recognise him and looked at him blankly for some time. John told the deceased that he would get him some lunch but he said that he did not want any. However John Brown went out, brought back food and they sat at the table and had lunch together. According to John Brown, the deceased said that Paul took his licence but I think that it is most unlikely that the deceased said that as early as June 2002. The deceased asked “where’s Bella?” and “I don’t know what I’m going to do” and “nobody told me Bella died.” John Brown deposed that the deceased did not know the names of Lyn’s children so he told him their names. He had to tell him a number of times. On the way out, John Brown checked the letterbox, as usual, and found a post office card relating to a parcel available for pick up at the mail centre. As it was Sunday, he could not collect it so John Brown drove back to Melbourne then drove back to Bendigo the next day to collect the parcel for the deceased. It was a pair of pants which Lyn had altered for the deceased and returned by post. John Brown gave the pants to the deceased but he said they were not his. John said that they were and that Lyn had sewn them up for him. The deceased still maintained that they were not his. John Brown took him to “KFC” for a meal.

The notes of Anne Caudle Centre in November 2002 show a telephone contact with Lyn Smith and that she informed June Rice of the home assessment and rehabilitation team that she visited the deceased about six-weekly and did some general tidying but that this was rather futile because of the state of the house. Lyn Smith said that she believed that the deceased had not bathed for two years, that he caught a bus into Bendigo twice a week for a social outing, that he had “meals on wheels” five days a week and that she believed that the deceased was cognitively sound. The notes also record a home visit that month by a member of the home assessment and rehabilitation team accompanied by Olive Carey and state that the home was dirty and noted two “issues” namely the body odour of the deceased and his urinary incontinence in relation to which he declined assistance and assessment respectively.

At the request of Athorn of the defendant, Joy Mavis Bird (“Bird”), then a Trust Officer in the defendant’s Estates Department, had an enduring power of attorney in favour of the defendant prepared for the deceased towards the end of 2002.

During early 2003, Athorn had a number of discussions with the deceased about his investments, their terms and his requirements for the future. There was also some discussion about the farm properties and the fact that a local estate agent was acting on behalf of the deceased in relation to the leases. Athorn told the deceased that the defendant could look after the farms and suggested that the tenants have longer leases.

A further home visit assessment is recorded by Anne Caudle Centre on 14 March 2003 noting that there was no change, the house was unkempt, the deceased was grubby with soiled and grimy clothing but that he continued to manage his own shopping and banking and “mentally he is very alert.”

In or about March 2003, the deceased wrote a letter to Lyn Smith saying:

“I am quite well but I don’t know how long I will be stopping here maybe sell out some time.
If Paul likes he could come up and take your things back to Melb any time. I thought Andrew seemed a bit upset perhaps Darren & Co night life annoyed him I think a lot of high sales people like Darren & Co might be satisfied to go to New Zealand I notice Andrews his toys along the river…”[6]

[6]The references to Paul, Andrew and Darren are references to Lyn’s children and the reference to “toys” is a reference to gum trees planted by Andrew Smith.

On 3 April 2003, the deceased executed the enduring power of attorney in favour of the defendant at its office in Bendigo.

In June 2003, Paul Smith visited the deceased for two to three days. Paul deposed that the health of the deceased had significantly deteriorated since Paul had seen him regularly a few years earlier. According to Paul, there was a general lack of conversation, the deceased did not talk about what was happening in football, with the farm or with his driving licence and, when Paul talked about his mother, brothers or others, the deceased looked at him blankly, as if he did not know who they were.

Shortly after 15 July 2003 and after Lyn Smith had visited the deceased, she received a letter from the deceased in which he stated:

“I hope you got home safely
I see heading off to Olive directly your food is very handy to me but I not on the dole yet. I hope you can keep the big wages.
I continue put in $10 to pay for the last 2 times I hope I can look after the farms myself with all your relations you…can get everything you want in Bendigo it is awkward to carry any thinks any[way] Olive doesn’t camcrole (control) my life as she has a lot of her family worry. I haven run in the street for 11 years hope I can continue I can carry most thinks my mother & father would want to look after probably want it some day.”

In early August 2003 Lyn Smith asked her son Paul to look after the deceased, as he was sick, and to stay with him until a bed became available in Bendigo Base Hospital. Paul Smith went to Bendigo and spent the next three or four days with the deceased at his house while the deceased waited for a hospital bed to become available.

When he arrived, Paul found the deceased in a very bad state, hardly able to move, ill-fed and incontinent. It took a while for the deceased to recognise Paul but, when he did, Paul said to him “I’ll be here with you until you go into hospital.”

Paul spent the time caring for the deceased, cooking for him, giving him his daily medication and moving him from his bed to the chair next to the fire. Paul also attended to him during the night when his screams and cursing woke Paul up, and he emptied the bottles of urine from the deceased’s bedroom and generally made sure that he was as comfortable as possible.

Paul deposed that during his stay the deceased screamed and yelled in a violent fashion a lot of the time and was, for large periods, incapable of coherent conversation. The deceased found it difficult to converse and when he did, according to Paul, it did not often make sense. For example, the deceased would ask “did Bella send you up here?” and Paul would ask him if he meant his mother, Lyn, because Bella had been dead for about 8 years but the deceased would only stare at him blankly. Paul deposed that, on a number of occasions during his stay the deceased did not recognise him or understand who he was and would ask “what are you doing?” Paul deposed that he recalled, on one occasion, while he was playing the piano in the next room, the deceased screamed “you bastards” a number of times but that when Paul came in and asked him if he was ok the deceased responded as if he was not aware that he had screamed out. Paul deposed that, although a lot of the deceased’s conversation was nonsensical, he recalled the deceased talking about the farm, his family, his sister Bella’s family and his days playing football and tennis. It is clearly not possible, on the whole of the evidence relating to what happened during the time that Paul Smith was staying with the deceased, to come to any conclusion about the extent to which the conduct of the deceased during that period was caused by the pain that he was suffering, or resulted from a urinary tract infection, or might be attributed to some other condition.

The Anne Caudle Centre records show that, on 7 August 2003, there was a home visit to the deceased, at the request of Lyn Smith, and that Paul Smith was then present. The records show a further visit on 15 August 2003 during which the deceased complained of back pain and it was noted that he had burn holes in his trousers from radiators. A report from Dr Ferres from Anne Caudle Centre dated 22 August 2003 mentions short-term memory loss but that the deceased continued to manage his financial affairs. It was noted that Paul Smith would stay with the deceased until he was admitted to rehabilitation.

Paul deposed that, when a doctor from Anne Caudle Centre advised him that a bed was available, he collected the deceased’s belongings, organised his clothes, gathered up his Medicare card and other accounts and took the deceased via the bank to the hospital. Paul deposed that it was not easy moving the deceased into hospital as he was very independent and stubborn and was also confused and disoriented. Paul helped the deceased settle into the hospital and spent an hour with him. The deceased then said to Paul something like “I’ll be right now.” After checking on the deceased’s house, Paul returned to Melbourne.

On 25 August 2003 the deceased was admitted to Bendigo Base Hospital. The nursing notes show that the deceased arrived in urine-soaked clothing and smelling very badly and they also record that Lyn Smith telephoned from Melbourne stating that she had serious concerns about the deceased staying in his unhealthy home, that he used two radiators for heat, had no hot water, and did not shower. Lyn Smith said that she hoped he would go into care and that she would come up to meet the team and speak to the welfare worker. A rehabilitation admission assessment form notes the deceased as very deaf and confused. A physiotherapy general assessment notes that the deceased was oriented but that communication was difficult even when accompanied with a communication board and that gesture responses were fifty percent appropriate. The notes also state that the deceased “has supportive niece in Melbourne but Daniel is suspicious of their motives to help” and that the deceased “talks in a high-pitched voice at times, when alone, possibly to his mother (deceased).” The notes further state that he was using a walking frame and that it was unsafe for him to return home due to an indwelling catheter. It appears that the deceased was fitted with an indwelling catheter at this stage and that this continued for the rest of his life.

On 26 August 2003, Karen Creighton, an occupational therapist employed at the Anne Caudle Centre, recorded, on initial examination of the deceased, as to cognition, that the deceased was orientated,[7] there was evidence of planning, he was cooperative but had limited insight into his incontinence in that he denied it, despite soiled bed linen.
[7]She testified that this meant oriented as to place.

On 28 August 2003, Karen Creighton recorded a telephone call to Lyn Smith in which Lyn Smith’s continuing concerns about the deceased’s ability to cope at home were stated. Lyn Smith said that she had bought the deceased a gas heater but he refused to have it installed and that she was purchasing clothes and toiletries and would bring them up the next day.

Nursing notes dated 29 August 2003 note that the deceased was talking to himself (“? Hallucinating”) but was quite alert and aware when discussing issues with staff.[8]
[8] In addition, the Team Meeting nursing notes for week three of the deceased’s admission also contain references, inter alia, to “hallucinating.”

A Bendigo hospital staff member asked Max Smith to buy the deceased a television as he was constantly standing in front of the common room television set and preventing other patients from seeing it. He also kept turning the sound up. Max Smith purchased a new television set and stand for him and took it up to the Bendigo Base Hospital to install it. He and Lyn then went to K-Mart to buy some extra attachments. On the return, the deceased confronted Max and tried to punch him. The deceased said that people would think he was a toff with a brand new television and that they should take it back. However they left the television set in his room for him. While the deceased was in his Bendigo house, Lyn and Max Smith had bought him numerous electric jugs and toasters, all of which were burned out. They also bought him four radiators and three electric blankets.

On 2 September 2003 Karen Creighton accompanied the deceased to the Commonwealth Bank in order to withdraw the sum of $55 that he needed for a hearing test. She deposed that the deceased’s passbook showed that he had a substantial balance (approximately $4,000) in his savings account with the Bank and that although the deceased read the balance showing in the passbook, and referred to that amount, he was still concerned that he did not have enough funds for the $55 withdrawal and said that they would need to withdraw from the Bendigo Bank as well. In cross-examination, Creighton accepted that the deceased’s deafness may have contributed to the difficulties demonstrated by him on this occasion.

In or about early September 2003, Bird and Athorn visited the deceased in the Bendigo Hospital to see if he wished the defendant to play an active role under the power of attorney. On that occasion, the deceased said to Athorn and Bird words to the effect that “I don’t like the will I did with Richard Baker.”[9] Athorn’s discussion with the deceased on that occasion covered a number of topics including some bills that needed to be paid, the total of his term deposits and the amount of rent he was receiving for his farm properties. The deceased in substance agreed with Athorn’s suggestion that the defendant activate the power of attorney at least while he was in hospital.
[9]Richard Baker was the employee of the defendant who prepared his 1999 will.

Athorn testified that the deceased had told him at some stage that he was not happy with his will and Athorn told him that he could leave money to charities. Athorn mentioned a number of estates that had been left to local charities and that were managed by the defendant. Athorn told him about one estate (the “Backus” estate) which he said was an ongoing trust that the defendant looked after. He also mentioned to the deceased another estate (the “Maling” estate) in which the directors of the defendant considered applications from students going to Scotch College and assessed them on a needs basis and the deceased asked Athorn some questions about the degree of responsibility of the defendant’s directors for such decisions. Athorn told the deceased that his farms did not necessarily have to be sold and that they could go on as an income generating asset in his name, the estate of Danny Duggan. The deceased asked how long such an estate could go on for and Athorn told him that it was up to him but it was better to talk about it with other people who were more conversant with wills and estates than he (Athorn) was. Athorn was unable to recall with any precision when this conversation with the deceased took place. He said that he thought that it occurred in the early 2000s and then referred to 2000, 2001 or 2002 but I think that it is more likely, looking at the evidence as a whole, that it took place, if not on the occasion when Bird and Athorn visited the deceased in early September 2003, then at about that time.

The defendant took over control of the deceased’s affairs, at that point, pursuant to the power of attorney and continued to exercise that control until the death of the deceased.

Nathan Dean (“Dean”) commenced employment as a Trust Officer with the defendant in April 2003. Before that he had worked as a law clerk for about three years. In or about September 2003, probably after she had visited the deceased in hospital, Bird allocated the deceased as a client to Dean. As a result, Athorn, who had previously, from time to time, assisted the deceased with financial matters, did not have so much to do with the deceased thereafter.

Dean then met the deceased in the medical ward of the Bendigo Base Hospital on 12 September 2003. He was accompanied by Athorn who introduced him to the deceased. In the conversation that followed, the deceased said, among other things, that he did not want people to know about his finances. The deceased also mentioned to Dean, sounding annoyed, that John Brown had asked him for some kind of loan or advance.

After his first meeting with the deceased in September 2003, Dean usually saw the deceased at the defendant’s offices in Bendigo, every three weeks or so, when the deceased would call in, always without making any appointment. On these visits the deceased asked Dean such questions as to whether his farm tenants were paying the rent on time or whether the cost of his accommodation at Lansell Lodge was covered.

Usually on every second visit, Dean printed out a summary of the deceased’s assets from the defendant’s computer records and went through it with the deceased. There were not many changes but, if there was some change, for example in the rate of interest on a term deposit, Dean would inform the deceased.

In one of their earlier meetings, the deceased was able to point out that two of his investments did not appear in the list and he was able to state the approximate amount of each of them. Further enquiries by Dean revealed that the deceased was correct. Also, in February 2004, Dean spoke to the deceased about deregistering his motor car and the deceased independently remembered that the registration fell due in June.

On or about 22 September 2003, Lyn Smith received a letter from the deceased in which he wrote:

“I knever new you had any to do that Lady Dr until Paul came she called at my house although Paul she said she could…”
(the rest of the letter is only partly decipherable)

Around this time, Lyn Smith and Paul Smith both visited the deceased in the hospital. Paul Smith deposed that he asked the deceased questions about football, people and the farm but that the deceased did not respond and looked at him blankly.

In late September and early October 2003 the deceased was taken by a social worker to visit a number of possible accommodation homes. On 22 September 2003 he is recorded as stating that he would still like to go home but “it’s up to the doctor.” The third possible home, Lansell Lodge, was visited on 8 October 2003 and the deceased is recorded as saying that he would like to give it a try.

On 16 October 2003 the deceased was discharged from Anne Caudle Centre. The discharge notes state that he had hallucinations while on the ward which may have been longstanding and that he had a tendency to talk about himself in the third person.[10] Under “cognition”, there is noted “no major deficits occasional hallucinations.” On the same day, the deceased was admitted to Lansell Lodge where he remained until his death. A personal care plan prepared shortly after his admission notes his mental state as oriented but comments that he talks very loudly to himself, to the television and to newspapers.
[10]This tendency is evident also from letters written by him to Lyn Smith in 2004 in which he refers to himself as “the Duggan.”

In late 2003, John Brown visited the deceased at Lansell Lodge. John Brown deposed that the deceased’s health seemed to have improved but that he was still confused about people: “he had lost track of who my kids were, mixed up Lyn and Bella, and, as in previous visits, asked “why did Bella die?”, “why did nobody tell me?”.”

In or about January 2004, Lyn Smith and Paul Smith both travelled to Bendigo. In the morning, Lyn Smith visited the deceased at Lansell Lodge while Paul Smith went to his house and mowed the lawns and made sure the house was secure. In the afternoon, both Lyn Smith and Paul Smith visited the deceased at Lansell Lodge. Paul deposed that the deceased showed no signs that he recognised him and did not greet either of them by name or refer to them by name during the course of the visit. Paul further deposed that the conversation was very limited and that the deceased said some things that were incomprehensible. This was the last time that Paul Smith saw the deceased. Paul deposed that, in all the time that he knew the deceased, the deceased was never anything but polite and friendly towards him and that at no time during any of his visits did the deceased blame Paul for the loss of his licence or for taking him from his home.

On or about 23 January 2004, Lyn Smith received a letter from the deceased. The contents of this letter were much more muddled than any correspondence from earlier times that is in evidence and it is to some extent indecipherable as well but includes comments “could not find either my licence or the bank book” and “you had no need to put me in Anne Caudle all to get me out of the house” and “Paul put me out of (my house?) when I was not sick.”

On 26 February 2004, Dean and Athorn visited the deceased at Lansell Lodge. They discussed with the deceased matters relating to the farm properties including the lease to Mr Gath. On that occasion they also gave Lansell Lodge permission to buy the deceased some new clothes.

On 29 January 2004, Dean sent an email to Athorn stating, inter alia:

“Danny called in to see me again yesterday. He really didn’t seem to be himself actually, he was paranoid (or at least very worried) that his in-laws are going to try and extract money [from] him. I assured him that while I am in control his money shall stay his money and nobody else shall be accessing his funds. He said he believes a nephew[11] has removed his licence from the house and taken his bank book, I don’t know what caused him to mention this. He then mentioned selling both the house and then the farm, and again said that if the farm is sold, the in-laws will probably want a cut from it.
[The email goes on to note the deceased’s concern about care fees being high but that otherwise he was happy with Lansell Lodge. The email then continues…]
Danny also mentioned that the ute is still registered so that he can drive it up to the farm!! I told him that was probably not a good idea seeing as he didn’t have a licence, and to hang about and we will arrange a trip up there soon.”

[11]In an email in reply by Athorn to Dean he informed Dean that Lyn Smith was the deceased’s niece and that the “nephew” was her son.

In relation to the visit by the deceased referred to in the above email, Dean testified that the deceased had been agitated and that his description that the deceased seemed “paranoid or at least very worried” was quite accurate. In cross-examination, Dean agreed that the reference to the removal of the licence and the taking of the bank book was all part of what might be described as not a particularly rational conversation and that he thought at the time that the reference to the driving of the ute without a licence was ludicrous.

On or about 25 February 2004, Lyn Smith received a letter from the deceased in which he stated, inter alia:

“the farms are nothing to do with you. I paid them off…(here the deceased refers to some history of farm purchases)…you were born in Melbourne and want to own farms…Bella got her share when dad died and she got paid for teaching…
all Brown and Smith want. Big show off and put people away to see what they get out of them when old…”

On or about 9 March 2004, Lyn Smith received a letter from the deceased in which he stated, inter alia:

“If you and Paul would have left me home alone I could have lived another 12 months on my…
Anne Caudle certainly ruined my life…
You have been (worry ?) over the Duggan[12] instead of looking after your own family…why you and Paul took me there Dirty Rotten Crim[in]al at Anna C[audle] destroyed me for life why you interfere God knows…”

[12]This seems clearly to be a reference by the deceased to himself.

The above extracts from the deceased’s letter do not fully demonstrate the incoherence of this letter.

On 16 March 2004, John Brown visited the deceased at Lansell Lodge. In conversation, the deceased said he did not know how he was going to get out of Lansell Lodge and that Paul had taken his licence. John Brown deposed that the deceased mixed up Lyn and Bella and kept coming back to the fact that Paul had taken his licence.

On or about 16 April 2004, Lyn Smith received a letter from the deceased in which he wrote, inter alia:

“I never found that the licence the police it was on my Draw bank book bank …book…
I had to take mother for drives three times a week for about 20 years…Lyn was lucky having someone to rear her family I get no help from the police force only go the lawyer you and Olive let me down. Supposed to get help from my relations [and] I never…
you and Paul got me into trouble. I never get out [of] it because and Ann[e] Caud[le] ruined my life without my life without permission.”

In or about April or May 2004, Lyn Smith received a particularly incoherent letter from the deceased. It included references to Paul, the taking of the licence, sacking “the Duggan” and also stating, inter alia:

“I don’t want to see Paul and you…again.
I shoot Paul. I will shoot him.
[after apparently making a statement that Paul put him in jail…]
Paul is a pig of a man.”

On 20 May 2004, John Brown visited the deceased for about four hours. John Brown deposed that the deceased said that he had no money and that he could not pay bills. John Brown went on to depose that:

“He was quite muddled and his concerns, which I tried without success to tell him were not necessary, included –
a.Sandhurst could sell the farm any time they liked – he did not own it anymore
b.Because Gath was paying rent to Sandhurst, Sandhurst needed to look after Gath’s interests and, if Gath wanted to buy the farm, Sandhurst would sell it to him
c.His money was running out and to pay the bills, Sandhurst would need to sell the farm
d.He did not know how much money Sandhurst was paying out
e.Sandhurst had moved his money from the Commonwealth Bank to Bendigo Bank because Bendigo Bank owned Sandhurst
f.He did not know how much Lansell Lodge was costing.

He said that they had taken the farm off him. I asked him who they were and he said he did not know. He said Sandhurst owned everything and I explained that Sandhurst had a power of attorney. He said he did not understand that. I told him that he did own the farms and that he had plenty of money but he said in substance that he did not accept that. He said that nobody had told him that Bella had died. He said that Ness had come to see him and spoke about Ness confusing her with his cousin Olive. Ness had been dead a long time. He said that Bella had left him to look after my mother; and that Lyn could have stayed home to look after her kids. He kept constantly telling me that Paul had taken his licence off him and he was getting more and more angry. I tried to change the subject to get him off these complaints but he continued to come back to Paul taking his licence…I told him that his concerns were unwarranted but he continued to fret.”

On or about 26 May 2004, Lyn Smith received a letter from the deceased stating, inter alia:

“I was very disappointed with the way you and…Paul around at Anne C[audle] I don’t [want] any of the Smiths or Browns coming ever into my life again. Mother never treat me like that I was forced to buy a house for mother as she got lost a few times out on the…now I ruined for life I have to stop where I am…
I do want I do [not] want the Smith and Brown ever going to my funeral you cruel mob. The farm is my property…
I never forget the dirty Paul…the Duggan.”

On or about 4 June 2004, Lyn Smith received another incoherent letter from the deceased stating, inter alia, “why Lyn and Paul wanted to interfere with my life I never know…”

On or about 18 June 2004, Lyn Smith received another jumbled and incoherent letter from the deceased containing references to the police and various references to his licence, to Anne Caudle Centre and to Paul and stating, inter alia:

“it seems you and Paul will always interfere with my life…
Once Paul got me into Anne Caud[le] that was end…
I knew as [soon] as Paul got to Anne Caud[le] you can forget about the Duggan…
Paul the Duggan in jail Paul (indecipherable) Paul…wanted to get my licence the day I went to Anne Caudle.”

Again, on or about 23 June 2004, Lyn Smith received a letter from the deceased containing reminiscences about his mother and the farm and references to hospital and stating, inter alia:

“you not worry get rid of Duggan…
Paul murdered the Duggan with Anne Caudle.”

On or about 1 July 2004, Lyn Smith received a letter from the deceased stating, inter alia:

“I don’t think I will ever Paul…for stopping me with the bladder trouble and other people sling off at me you and Paul to the babies. I had the help from the police so I not care what I do go to jail…
[after further references to Paul…]
I don’t want Paul making lies to me putting me in Anna C[audle]…
I own property and Paul own none.”

In or about June or July 2004, on one of his visits, the deceased said to Dean that he wanted to make a new will and that he was not happy with his old one. He said that he did not wish to leave his estate to the same beneficiaries as were mentioned in his previous will but wanted to leave everything to charities. He said that the beneficiaries in the previous will were his family. Dean asked him what charities was he thinking of and the deceased mentioned the ambulance service.

The deceased mentioned the subject of a will to Dean on a subsequent occasion but Dean could not recall what was said save that Dean told the deceased that when he was ready to sit down and go through it he (Dean) would be more than happy.

Dean also said, in cross-examination, that on one occasion the deceased had said to him that when he did the previous will, he wasn’t happy with it, he was told “just sign here, sign there.” I do not accept that evidence which was not mentioned in either of his affidavits.

On 8 July 2004 the deceased was transferred from Lansell Lodge to hospital with a urinary tract infection. The admission notes include statements that the hospital was “unable to ascertain history from patient” and that, the deceased was “according to hostel unwell with [increased] confusion for two weeks – usually able to give history.” The evidence shows that one or other of the proprietors of Lansell Lodge provided the latter information to the hospital. On 16 July 2004, the nursing notes say that the deceased was alert and oriented and enjoying chocolate brought in by his niece from Melbourne and that “patient not shouting today communication hard to follow sometimes but often appropriate. Some difficulties due to patient deafness even with aid in left ear. Tearful at times…talking about caring for parents for many years not marrying…” On 19 July 2004 the deceased returned to Lansell Lodge and it was noted that he was “alert and oriented to time and place and person.”

On 25 August 2004, Athorn and Dean took the deceased to visit his farms. By that stage, the defendant had spent nearly $100,000 on improvements to the farm properties including replacement of fences, cleaning out of dams and the establishment of a new dam and they showed the deceased the work that had been completed and discussed with him where the new dam would be located. Athorn testified that on this occasion he had a further discussion with the deceased, in the car and in Dean’s hearing, about trusts. The deceased asked him whether the directors, as opposed to general staff members, were responsible for dealing out the money from trusts for education and things like that.

On 20 September 2004, the deceased came to the defendant’s office and told Dean that he wanted to make a new will. In the corridor, on the way to the usual meeting room, the deceased said to Dean “why do I want to leave it all to them?” and “they are just waiting for me to die so that they can scoop the lot.” Dean took him into the meeting room, then collected a standard will instruction form and came back and sat down in the room with him. Dean testified as to what then happened as follows:

“We sat down and I said to Mr Duggan, “Where do you want to leave your estate to?”, and he said charities. I said, “I need you to be more specific, what charities, where?” He again mentioned the Ambulance Service and Royal Children’s Hospital and I said, “Is it just those two?”, and he replied, “No” and I said, “I need you to tell me what you want”, and at that point I went back to my room and got a list from the internet of a whole great number of charities and charitable organisations and took it back to him and put that to him and said, “This is a list of potential beneficiaries”, and “have a look through”, which he did, and then proceeded to then show me on that piece of paper with his finger which ones he wanted.”

Dean wrote down the names of the charities to which the deceased had pointed on the list. Another legatee in the sum of $50,000 was Lansell Lodge or, at least, “the lodge or nursing home which I was residing in or last residing in immediately prior to my death.” Dean could not recall how this came to be included in the will.

The deceased told Dean that he wanted to leave nothing at all to Lyn Smith and John Brown. Dean suggested to him that he might wish to reconsider that because they were his family and his only and closest relatives and they did have contact with him. Dean suggested to the deceased that he should consider leaving them some part of his estate and the deceased replied “ok, $80,000 for John and half for her.”

The deceased then said to Dean that he wanted to leave some of his estate to help young farmers in a scholarship fund. The deceased mentioned that he had spoken to Athorn about it in the past. The deceased was not clear as to how that was to happen and as to what the conditions would be and Dean offered him advice as to how this could be set up.

Dean and the deceased discussed the rough value of his estate and what proportions the payments were to be in and the deceased came up with amounts of $50,000 each for the charities but a specific amount was not mentioned for the trust.

Dean deposed that the deceased did not, on this occasion, specify any particular reason or reasons for not wishing to benefit his family other than making the general comments referred to above.

Dean told the deceased that he was quite satisfied that he had capacity to make a will but that it was a good idea to obtain a letter from his doctor confirming his capacity in case there was a challenge to his will and the deceased agreed that this was a good idea. Dean left it to Lansell Lodge to organise a medical examination of the deceased for the purpose of confirming his testamentary capacity and, as a result, Dr Romano De Nardo was contacted.

Dr De Nardo was a General Practitioner who had graduated in medicine from the University of Melbourne in 1975 and had been practising in Bendigo since about 1987 and was very experienced in dealing with elderly patients including many who had been diagnosed with dementia or Alzheimer’s disease. He had a number of patients in Lansell Lodge and he commenced treating the deceased in early 2004, taking over from Dr Kirby who had been the deceased’s General Practitioner for a number of years.

Dr De Nardo deposed that the deceased was very deaf and it was difficult to communicate with him. He said that the deceased always recognised him but he generally had a grumpy disposition towards him. He said that the deceased’s most significant medical problem was the recurrence of urinary tract infections during the acute phase of which the deceased would exhibit signs of confusion.

Dr De Nardo deposed that he saw the deceased at Lansell Lodge on 23 September 2004 “for the purpose of making an assessment as to whether or not he had testamentary capacity.” Dr De Nardo exhibited to his affidavit a handwritten and signed “certificate of competency” that read as follows:

“To whom it may concern. This is to certify that I have examined Mr Daniel Duggan, DOB 22.2.1913 formerly of 354 Barnard St. Bendigo, but now residing at Lansell Lodge Hostel. In my opinion Mr Duggan does not suffer from any mental condition and in testatory (sic) condition.”

In his affidavit, Dr De Nardo deposed as follows:

“I recall asking Daniel about his desire to make a new Will although I did not have the discussion with him about his intended beneficiaries or what was the nature and extent of his assets. I explained to Daniel that the purpose of my visit was to provide a report as to whether or not he had testamentary capacity and then I engaged in a conversation with him. Based upon my previous dealings with Daniel and also based upon my specific conversation with him on that day it was my opinion that Daniel did have the capacity to make a valid will. Although I had already formed my opinion, I then asked Allan Matthews and Judy Matthews, who were the proprietors of Lansell Lodge as to their opinion as well. I then wrote my [certificate] and left it with Allan Matthews for him to give to [the defendant].”

Dr De Nardo deposed that he continued to visit the deceased on numerous occasions after that date, and apart from the occasions when he was suffering a urinary tract infection, he found the deceased competent to make decisions but, by the commencement of 2006, Daniel had become very frail and his health had declined significantly.

Dr De Nardo said that he had been provided with a copy of Dr Ingram’s report and disagreed with his conclusion that the deceased had developed Alzheimer’s disease. Dr De Nardo said that he was aware that, in September 2004, the deceased would still travel by himself in the central business district of Bendigo and, further, that he had observed nothing about the deceased during 2004 to indicate that he was suffering from short-term memory loss. Dr De Nardo said that he did not believe that the deceased was affected by Alzheimer’s disease or dementia and certainly not in September 2004.

In cross-examination of Dr De Nardo, it appeared that he had little recollection of the relatively few and short occasions upon which he had seen the deceased in the year 2004 all of which, other than the visit on 23 September 2004, related to specific infections or physical ailments suffered by the deceased. It further emerged that Dr De Nardo had no understanding of the concept of or principles relating to testamentary capacity when he saw the deceased and had been given no background information about him or his relatives or his financial position. He testified that he asked the deceased whether he wanted to make a will and whether he knew the extent of his estate and knew to whom he wanted to leave his possessions and that the deceased answered “yes” to each of those questions. However, Dr De Nardo did not in any way test the nature of the deceased’s knowledge or understanding in relation to those questions. Even that evidence went further than that which had been disclosed by his affidavit.

I regret to say, having regard to the foregoing matters and considering Dr De Nardo’s evidence as a whole, that I am unable to accept his opinion as to the capacity or mental condition of the deceased.

On 5 October 2004, John Brown visited the deceased at Lansell Lodge. He tried to get the deceased to talk about normal topics but he would only talk about the fact that Paul had put him in “this place” and that he could not go anywhere because Paul took his licence. John Brown further deposed that the deceased’s conversation was very confused and it was hard to understand him. The deceased said that he had no money because they had taken it all but, when John Brown asked him who had taken it all, he would not answer.

On 12 October 2004, the deceased attended the defendant’s offices and asked if the will was ready to be signed. Dean deposed that Bird was present when he showed the deceased the will and discussed the contents with him. According to Dean, he summarised the will to the deceased and the deceased also read it and told him that he was happy with the contents. The deceased noticed that one of the ambulance services was listed in a town where it did not exist and Dean corrected the will in handwriting. The deceased then executed the will and it was witnessed by Dean and Bird.

I note here that John Brown deposed that, to the best of his knowledge, the deceased had no association with or interest in many of the organisations named as beneficiaries in his 2004 will and, in conversation, he never spoke of any of them. John Brown deposed that the deceased hated anything to do with education. He belittled Paul’s attendance at the teacher’s college in Bendigo and he told John Brown on a number of occasions that he did not want anything to do with John’s father (his brother-in-law) because he was a teacher.

On 29 November 2004, Dr De Nardo noted down that the deceased was “confused more than usual.” Dr De Nardo deposed that this comment was intended to mean that the deceased was confused more than usual when he was presenting with a urinary tract infection and that when he saw the deceased and there was no presence of such an infection he did not find him to be confused. In a letter from Dr De Nardo to the defendant’s solicitors dated 11 December 2006, he said that his note “could be interpreted otherwise” but that he was “sure it refers to [the deceased’s] confusional state when suffering from an infective condition.” In the letter, he then added that he agreed with Mr Matthews’ observation that the state of confusion was only present under the influence of sepsis and of brief duration. It became clear, on cross-examination, that Dr De Nardo had been prompted by reference to the views of the proprietors of Lansell Lodge and was responding to the defendant’s solicitors questions in that context. Accordingly, I find it difficult to accept the gloss that Dr De Nardo thus attempted to place upon the interpretation of his note.

On or about 10 December 2004, Lyn Smith received a letter from the deceased which was again incoherent and partly indecipherable but included statements that “Paul made a hell of a mess of my licence” and “Paul and Max stole my licence and murder my life” and there are various other references to Lyn, Paul, Max and “the dirty rotten filthy Brown.”

John Brown deposed that the irrationality demonstrated by the letters that the deceased wrote to Lyn in 2004 was similar to the irrationality of the deceased’s conversations with him during the same period.

Evidence from the proprietors of Lansell Lodge

Jennifer May Matthews (“Mrs Matthews”) was the owner and operator along with her husband, Allan Clifford Matthews (“Mr Matthews”) of Lansell Lodge which operated at 119 Arnold Street Bendigo. She deposed that she had a lot to do with the deceased during his time at Lansell Lodge from October 2003 until his death in June 2006.

(Sir J Hannen then referred to the grosser kinds of delusion and continued…)
“But a very different question no doubt arises where the nature of the delusion which is said to exist is this, - when it is alleged that a totally false, unfounded, unreasonable, because unreasoning, estimate of another person’s character is formed. That is necessarily a more difficult question…But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character…I say there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind. Fortunately the case is rare.””
(emphases added)

[21](1973) LR 3 P&D 64, esp. at 65-69 per Sir J Hannen.

In Timbury v Coffee,[22] Rich ACJ said:[23]

“Was then the evidence such as to justify the jury in finding…that the delusions overmasted his judgment at the time of executing the will to such an extent as to render him 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…”

[22](1941) 66 CLR 277.

[23](1941) 66 CLR 277, 280.

In Bull v Fulton,[24] a testatrix believed that certain documents bearing her name as a signature and used in connection with her business transactions were not signed by her and that her nephews, who had acted as her solicitors, were guilty of deceit or of forgery in the matter, and there were grounds for concluding that for this reason she had excluded these nephews from the dispositions in her will. The belief of the testatrix was unfounded and irrational but it was persistently held by her in spite of overwhelming proof of its falsity. Latham CJ said:[25]

“…The delusions were plainly of such a character as to have “a direct bearing on the provisions of the will”: Cf. Banks v Goodfellow. Where an insane delusion “has had,…or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity” (Banks v Goodfellow). The onus in such a case is on those supporting the will to show that the delusion did not influence the will (Boughton v Knight: Smee v Smee: Bailey v Bailey)…Thus it was for the propounder to show that the delusions did not affect the provisions of the will propounded. That will was made on 24th July 1940. At that time the delusions…were most firmly and incorrigibly held by the testatrix. It is argued for the propounder, however, that there were reasons, perhaps not just or fair reasons, but still not irrational reasons, for excluding [the nephews] which reasons were in existence in December 1933, so that subsequent delusions would be irrelevant. The evidence shows that there were such reasons which might have so operated and which probably did so operate. But it is not established that the delusions, as well as those reasons, did not also influence [the exclusion of the nephews].”
(emphasis added)

[24](1942) 66 CLR 295.

[25](1942) 66 CLR 295, 299.

In In the will of Zvi Harry Haber,[26] the testator in his will made a number of provisions that were argued by his widow (the caveatrix) to be irrational. The propounders argued that the will and other behaviour of the testator did no more than manifest eccentricities of personality, and character defects. The caveatrix contended that the testator’s conduct evidenced or at least threw substantial doubt on his testamentary capacity.
[26]Unreported, Adam J, Supreme Court of Victoria, 28 Sept 1973.

Adam J said that the evidence clearly established that the testator had a full understanding unimpaired by any mental illness that he was making a will, and what the effect of that will was. He had sufficient understanding of the extent of the property he was disposing, and he was aware of the persons who had claims on his bounty. The question was whether, in the language of Banks v Goodfellow, the testator was, at the relevant time, “able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object that no disorder of the mind shall poison his affections, pervert the sense of right or prevent the exercise of his natural faculties.” On the particular facts of the case, the Court concluded that the testator had a probably delusional belief resulting from a mental illness and disorder that affected one disposition in the will and may have affected others. On the whole of the evidence, the Court was not satisfied of the testator’s competence.

In Re Estate of Griffith (deceased); Easter v Griffith,[27] Gleeson CJ said:[28]

“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted (Worth v Clasohm (1952) 86 CLR 439).
This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult.
This was the point made by Sir James Hannen in his charge to the jury in Boughton v Knight (1873) LR 3 P & D 64. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.”
(emphasis added)

[27](1995) 217 ALR 284.

[28](1995) 217 ALR 284, 289-290.

In Murphy v Lorenzi,[29] Bryson J said,[30] after referring to Banks v Goodfellow:

“It will be seen that the references to disorder of the mind and to delusions is introduced in exposition of the third element - ability to comprehend and appreciate the claims to which the testator ought to give effect - so that questions whether there is a disorder of the mind, whether there is a delusion or whether a delusion is insane are introduced only at the level of means of proof of ability or lack of ability to comprehend and appreciate claims; it is not in principle essential that there should be proof of the presence (or absence) of a disorder of the mind, of delusions or of insane delusions. Naturally enough evidence in litigation on these subjects very usually includes medical evidence dealing with whether or not there is some disorder of the mind or insane delusion, but the question to be decided is a question of fact whether the testatrix was of sound mind, memory and understanding, essential for which are the first three elements stated by Sir Alexander Cockburn in the passage cited. The medical learning current in any age is not incorporated into the law, and it is not essential that a finding disposing of the ultimate issue should be cast in terms of any interpretation according to medical science of whether or not there is a disorder of the mind, a delusion, or an insane delusion.
This subject was reviewed in the judgment of Gleeson CJ with whom Handley JA concurred in Re Estate Ethel Gertrude Griffith (Deceased). Easter v Griffith and Ors Court of Appeal 7 June 1995. In my opinion I should treat the statement of the legal principles to be applied made by Gleeson CJ at 10 to 13 as authoritative. As Gleeson CJ made clear at 11, mental infirmity of the kind which denies testamentary capacity does not necessarily involve “insane delusions”. In Shaw and Anor v Crighton a somewhat differently constituted Court of Appeal (Handley JA being a party to both decisions) on 23 August 1995 dealt with the question of testamentary capacity in what I respectfully understand to be the same sense as did Gleeson CJ and Handley JA in Easter v Griffith and Ors, although there was no reference to Easter v Griffith, as Shaw and Anor v Crighton was under reserved judgment when the decision in Easter v Griffith was published.
In my view these decisions make clear (as indeed ought earlier to have been clear) that it is not essential that a question of testamentary capacity be addressed in terms in which the relevant debate is whether there were delusions and whether they were insane, or in any terms which involve necessarily identifying a disorder of the mind in terms of current medical science. What is required of a tribunal of fact which applies a rule of law in which current medical science is not incorporated is a verdict on the evidence overall on whether the testatrix was of sound mind, memory and understanding, to establish that the testatrix understood the nature of testation and its effect (as in this case it is clear that she did), that she understood the extent of the property of which she was disposing and that she comprehended and appreciated the claims to which she ought to give effect. Those propounding the will (in this case the last two wills, with the revocation by the April 1992 will of the 1978 will) bear the onus of proof. The authorities bring out the need to advert to the fact that antipathy, even harsh and unreasonable, is not necessarily an indication of inability to comprehend and appreciate their claims of the person against whom antipathy is directed.”
(emphases added)

[29]Unreported, Bryson J, Supreme Court of New South Wales, 21 October 1996.

[30]Unreported, Bryson J, Supreme Court of New South Wales, 21 October 1996, at 40-42.

In Norris v Tuppen,[31] Ashley J said that a testatrix must, inter alia, have the ability to evaluate and discriminate between the respective strengths of the claims upon her bounty and went on to say:[32]

“Expert (medical) evidence may be important in determining competency. But it does not decide the issue, any more than does the mere fact of the age of the testatrix when the will was made, or the opinions of the attesting witnesses that the testatrix was competent.
The presence of dementia does not necessarily tell against a testatrix having competency. Dementia may manifest itself in imperfect recollection, yet leave intact the awareness and ability to which I have referred.
Delusion does not necessarily tell against a testatrix having competency. The delusion may not have had any influence on the dispositions made. But that is not to say that a delusion which cannot be shown to have directly affected a particular disposition may not be evidence of the existence and extent of a mental disorder which does destroy competency.”

[31][1999] VSC 228.

[32][1999] VSC 228, [335]-[337].

In Burgess v Leech,[33] Bryson AJ, after referring to a number of judicial statements concerning delusions, said:[34]

“Many reported cases contain judicial expositions of competency, and references in them to insanity, mental illness and delusions reflect the understanding of judges and in turn medical opinion which changes from age to age. It is not, in my understanding, central to the inquiry to establish whether or not delusions, if the testator is shown to have suffered from delusions, had their origin in one particular mental disorder or in another; what is under consideration is whether delusions existed, not whether delusions had an origin in some definable mental disorder. Whether there were delusions, mental disease, infirmity, want of intelligence, defective organisation, decay of advancing age or some similar concept, described in the language of medical science of the present time or in archaic language, is not the ultimate object of proof but means of proving whether the testator had testamentary capacity.”

[33][2007] NSWSC 700.

[34][2007] NSWSC 700 at [25].

The standard of proof resting upon the defendant is, of course, upon the balance of probabilities but the Court is not to conclude that the testator had the capacity to make a valid will unless it has exercised the caution appropriate to the issue by a vigilant examination of the whole of the relevant evidence.[35]
[35]Kantor v Vorsahlo [2004] VSCA 235 at [22] per Ormiston JA.

Submissions

The plaintiffs accepted that the deceased knew that he was making a will and that he generally understood the contents of the will and the assets comprising his estate but they submitted that he lacked testamentary capacity because it was clear on the evidence that by September 2004 the deceased was not of sound disposing mind because he did not recall or understand the claims of his only family members and because he was suffering from mental disorders such as delusions, hallucinations and Alzheimer’s disease, which influenced the terms of his last will.

The plaintiffs said that in 1999, at the age of 86, the deceased had made a will which reflected his affections for his nearest family members and for the family who had supported him for many years and the promise he had made to his own mother to leave the farms within the family. In that regard, the plaintiffs pointed out that there was uncontradicted evidence of the support given to the deceased by Bella (in her lifetime), Lyn (with the assistance of Max), Lyn’s children (particularly Paul) and John (particularly in the later period). Then, five years later, apart from limited legacies, the deceased left everything to charities.

The plaintiffs submitted that the deceased had delusions that his family were just waiting for him to die so that they could get the money, that Paul was responsible for the loss of his licence and that Lyn, John and Paul were responsible for taking away his independence by putting him in care and taking him from his home.

The plaintiffs emphasised the dramatic change by the 2004 will and the content of the deceased’s letters to Lyn during 2004 that demonstrated his delusions. They referred to the form and structure and incoherence of those letters when compared to earlier correspondence by the deceased. The plaintiffs referred to evidence, apart from the 2004 letters, of these and other delusions held by the deceased.

On the other hand, the defendant submitted that the Court had to answer the question whether the deceased was motivated by antipathy, even if unreasonable, against Lyn and John and their respective children, or by a disorder of the mind. The defendant submitted that, in essence, that the facts in this case were such that the Court would either be satisfied that the delusions were the thing that made the deceased make the will that he made, or the Court would be satisfied that the will was the product of his moving his own mind away from his family because of the circumstances that he was in and that might be unfair and unreasonable but it was not a delusion that had driven him to make the will.

The deceased had expressed his unhappiness with his 1999 will and had asked why should he leave it to “them.” The deceased had lost contact with his great nephews by 2004 and was upset that John Brown had asked him for money in 2002. The provisions of the deceased’s 2004 will were not irrational, in the context of his life and his limited connection with his relatives – apart from Lyn Smith: in respect of her, the will was probably unfair but that was not the test. The defendant accepted that what Lyn Smith had done for the deceased was something worthy of recognition and that the deceased never gave her recognition.

The defendant submitted that the deceased had expressed his dislike for family members interfering with his life and putting him into care but this was not delusional.

The defendant said that, despite some episodes of confusion (attributable to infection), there was ample evidence from a number of witnesses of his continuing rationality. Allowance had to be made also for his considerable deafness when considering evidence as to conversations with him.

The defendant submitted that no “operative” delusion could be identified. The will excluded the whole family not just Lyn Smith and her son Paul. The statement that they were “waiting for him to die so they can scoop the lot” was equally consistent with an irritated statement by an ungrateful old man, as with a delusion.

The defendant criticised the cogency of the evidence about the deceased blaming Paul for the loss of his driver’s licence and also raised the issue whether it related to the possible loss of the physical licence card rather than to an allegation that Paul had caused him to lose his right to drive.

The defendant said that in the letters written by the deceased to Lyn Smith in 2004 the main complaint was about being put into care by Lyn and/or Paul. The defendant pointed out that this had in fact happened and, in addition, Lyn and Max Smith had regarded such letters as calls for help or attention. In addition, there were no letters between July and December 2004 and thus provided no evidence of the deceased’s state of mind during that period.

The defendant pointed out that Dr Ingram had never seen or known the deceased. The defendant submitted that what Dr Ingram had taken to be a “deterioration in the deceased’s living conditions and style of life” was shown by the evidence to have been of very long standing. The defendant emphasised the evidence about the character and personality of the deceased. He was “frugal,” ungrateful, strongly independent and resentful of any interference in his life and living arrangements and nasty and abusive in correspondence over many years although non-confrontational in person. The defendant submitted that the behaviour of the deceased considered by Dr Ingram to show an Alzheimer’s-related delusion (or delusions) was consistent rather with the views of an unfair and unreasonable man at the end of his life.

Conclusions

I am satisfied that the deceased, who was suspicious by nature and who, for some years, had shown tendencies to paranoia, had become subject to delusions by the time he gave instructions for his will in September 2004.

The first of these delusions was that his niece Lyn and his great-nephew Paul had unnecessarily caused him to be removed from his house, hospitalised and then consigned to Lansell Lodge. In late January 2004 the deceased wrote to Lyn Smith that “you had no need to put me in Anne Caudle all to get me out of the house” and “Paul put me out of (my house?) when I was not sick.” In early March 2004 the deceased wrote to Lyn Smith that “if you and Paul would have left me home alone I could have lived another twelve months on my…” and “Anne Caudle certainly ruined my life…” and “why you and Paul took me there Dirty Rotten Crim[in]al at Anna C[audle] destroyed me for life why you interfere God knows…” In April 2004, the deceased said in a letter to Lyn Smith that “you and Paul got me into trouble. I never get out [of] it because and Ann[e] Caud[le] ruined my life without my life without permission.” Similar sentiments were expressed by the deceased in letters written in May, June and July 2004. For example, in mid-June 2004 the deceased said:

“it seems you and Paul will always interfere with my life…
Once Paul got me into Anne Caud[le] that was end…
I knew as [soon] as Paul got to Anne Caud[le] you can forget about the Duggan…
Paul the Duggan in jail Paul (indecipherable) Paul…wanted to get my licence the day I went to Anne Caudle.”

And, later in June 2004 the deceased wrote:
“you not worry get rid of Duggan…
Paul murdered the Duggan with Anne Caudle.”

The second of these delusions was that his great-nephew, Paul Smith, had taken his driving licence or was responsible for the loss of his driving licence. The deceased, although unhappy about it, originally had a good understanding of the reasons why he had lost his licence. In his very muddled letter written in late January 2004, he referred to not being able to find his licence and, shortly thereafter, he told Dean that he believed his “nephew” had removed his licence from the house. On 16 March 2004, the deceased kept repeating to John Brown that Paul had taken his licence. In June 2004, the deceased said in a letter that “Paul…wanted to get my licence the day I went to Anne Caudle.” On 5 October 2004, he told John Brown that he could not go anywhere because Paul took his licence. The delusion was still present in December 2004 when he wrote a letter stating that Paul, and Max also, stole his licence. The continuing existence of this delusion was supported by the evidence of Mrs Matthews concerning the deceased’s frequent mentions of his driver’s licence and his belief that his “nephew” had arranged for it to be taken from him or caused him to lose it.[36]
[36]See para [142] above.

I am satisfied that the two delusions mentioned above led to, or were at least substantially causative of, the deceased expressing and harbouring a very strong and irrational animosity to Lyn Smith and Paul Smith and also to John Brown and to the whole of the Smith and Brown families. This animosity is well-evidenced in the deceased’s 2004 letters to Lyn Smith, particularly in the following extracts:

“(25 February 2004)
all Brown and Smith want. Big show off and put people away to see what they get out of them when old…
(April or May 2004)
I don’t want to see Paul and you…again. I shoot Paul. I will shoot him…Paul is a pig of a man.
(26 May 2004)
I was very disappointed with the way you and…Paul around at Anne C[audle] I don’t [want] any of the Smiths or Browns coming into my life again…
I do want I do [not] want the Smith and Brown ever going to my funeral you cruel mob. The farm is my property…I never forget the dirty Paul…”

That this animosity was continuing is evidenced by the statements in the deceased’s letter to Lyn Smith in December 2004 that “Paul made a hell of a mess of my licence” and “Paul and Max stole my licence and murder my life” and a reference to “the dirty rotten filthy Brown.” I would infer that, although the deceased did not express it to their face, this animosity was the cause of the agitation that was observed by Mr and Mrs Matthews whenever the deceased had a visit from Lyn Smith or John Brown.

Although evidence of these delusions does not emerge prior to January 2004, I think it is likely that the deceased either held them or was coming to hold them shortly after the time that he was admitted to hospital on 25 August 2003. Notes made on or shortly after his admission include a comment that the deceased “has supportive niece in Melbourne but Daniel is suspicious of their motives to help.” There is no evidence of such a suspicion being held by the deceased prior to this time. In addition, it was in early September 2003 that the deceased first expressed dissatisfaction with his 1999 will to Athorn and Bird. As I have indicated, it was probably at this time that Athorn suggested to the deceased that he could leave money to charity. It is perhaps not surprising, given the deceased’s previous lack of interest in charity, that this suggestion was not one coming from the deceased. The evidence suggests, and I intend no criticism of the defendant in that regard, that the deceased, formerly strongly independent, had by this time become quite suggestible, or at least very receptive to suggestions from the defendant, being the entity controlling his affairs.

I am satisfied, on the balance of probabilities, that, by June or July 2004, when the deceased told Dean that he did not wish to leave his estate to his family but wanted to leave everything to charities, these delusions and this animosity were well established and this continued to be the position when the deceased gave Dean instructions for his will on 20 September 2004. I am further satisfied that, when the deceased said to Dean “why do I want to leave it all to them?” and “they are just waiting for me to die so that they can scoop the lot,” these sentiments resulted from his pre-existing delusions and animosity to “the Smiths and Browns.” The plaintiffs would have it that the statement that “they” were just waiting for him to die so that “they” could scoop the lot was itself a delusion because there was no rational basis for the deceased’s belief. I agree that, on the evidence, there was no rational basis for the deceased’s said belief. However, I consider that the belief that “they” were just waiting for him to die so that they could scoop the lot naturally stemmed from his delusions and his animosity to “the Smiths and Browns.”

I am satisfied that the deceased’s said delusions and the resulting animosity were “insane” in the sense that they arose from or constituted mental disorder and prevented him from being able to comprehend and appreciate the claims of Lyn and Paul Smith, and that of John Brown, and by extension the Smith and Brown families. The dramatic change from his 1999 will speaks for itself; even more so does the deceased’s statement to Dean that he wished to leave nothing at all to his family. It is noteworthy that it was only by reason of the suggestion of Dean that the deceased left anything at all to Lyn Smith or John Brown. Even then, the reduction of the provision for the very deserving Lyn Smith from the devise of the house to the paltry sum of $40,000 bespeaks of his delusional irrationality. That the deceased was moved by delusional and irrational vindictiveness rather than the love of selected charities is, I think, shown by his subsequent loud statement to Mrs Matthews and to the inmates at large, after a visit by John Brown, that:

“I’ve fixed him up. I’ve left it all to the Lost Dogs’ Home.”

I am satisfied, independently of the evidence of Dr Ingram, that in September and October 2004 the deceased was not of a sound disposing mind and lacked testamentary capacity. I am satisfied that his 2004 will was not the product of mere eccentricity or harsh, even extreme, dislike or animosity for his relatives but was the product of, or at least influenced by, his delusions. The delusions, as I have said, are well-evidenced by the deceased’s 2004 correspondence with Lyn Smith. Those letters, in my opinion, when contrasted with the earlier correspondence of the deceased that is in evidence, by their very structure, incoherence and mode of expression, demonstrate the existence of mental disorder or an unsound mind.

I now turn to the evidence of Dr Ingram. His opinion evidence was uncontradicted and the defendant’s submissions did not criticise his methodology or expertise. The defendant did contend that, in various ways, the factual basis for Dr Ingram’s opinion was not established. This was in part because Dr Ingram did not have the benefit that the Court had of hearing all of the evidence and the cross-examination of witnesses. It was also in part because Dr Ingram had not been in a position to appreciate the eccentricities of the deceased and his unusual lifestyle and behaviour over a long period of time such that what Dr Ingram had taken to be evidence of mental deterioration was simply part of a longstanding pattern of conduct. There is some force in these contentions but, even allowing for them, I found the central planks for Dr Ingram’s opinion, as expressed in para [175] above, to be well established. In my view, the evidence shows that the deceased’s behaviour deteriorated over time showing more than mere eccentricity or non-conformist conduct and the other factors mentioned by Dr Ingram are well established. In any event, the key to his opinion was the nature of the 2004 correspondence and the existence of the deceased’s delusions about his family.

I need not be satisfied that the deceased was suffering from Alzheimer’s disease but, even had I not positively accepted the proposition that the 2004 will was caused or influenced by operative delusions, I would not be satisfied, having regard to Dr Ingram’s evidence, that this proposition has been negatived; nor would I be satisfied that the deceased had at the relevant time a sound disposing mind but rather I consider that it is likely that he had a psychiatric illness or paranoid disorder of some kind that directly bore upon the making of the will. I found Dr Ingram’s evidence generally convincing but, in particular, I found Dr Ingram’s evidence persuasive that the 2004 letters were evidence of “a mind that’s broken down” and “strong evidence” of “a disintegrated mind.” I also accept Dr Ingram’s evidence that this correspondence is a better reflection of the deceased’s mind than the evidence of the local farmers showing the deceased’s continuing interest in and knowledge of “farming news” or any evidence tending to show the deceased’s lucidity in a structured situation.[37]
[37]See para [191] above.

For the foregoing reasons, I am satisfied that the deceased lacked testamentary capacity and that probate of his will dated 12 October 2004 should be revoked.

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[2009] VSC 212

4 June 2009