Bull v Fulton

[1942] HCA 13

66 CLR 295

BULL AND OTHERS FULTON

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF Will-Testamentary capacity-Soundness of mind, memory and understanding-

Insane delusions-Aged testatrix-Tendency to affect dispositions-Onus of proof.

A testatrix, who died a spinster aged ninety-one years and was a prolific will-maker, held a belief that, inter alia, 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 conclud- ing 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.

Held, by Latham C.J. and Williams J. (McTiernan J. dissenting), that, as the belief amounted to a delusion which, whether due to failure of memory or to paranoia, was of such a character as to have a direct bearing on the pro- visions of the will, and the propounder had failed to show, either by direct evidence or reasonable inference from the facts, that it did not affect those provisions, the will was invalid.

Decision of the Supreme Court of Victoria (Martin J.), by majority, reversed.

APPEAL from the Supreme Court of Victoria.

Elizabeth Bull of Albert Street, East Malvern, Victoria, died on 1st July 1941, aged ninety-one years and a spinster. During the years 1922 to 1940 inclusive she executed about twenty-six testa- mentary documents, the last being a will dated 24th July 1940 and a codicil thereto dated 23rd August 1940. By this will, after appointing a niece, Martha Bull, and a solicitor, Frederick Brooke

66 CLR 296

Boothby, as "executors and trustees" thereof, she bequeathed a legacy of £100 to the Royal Victorian Institute for the Blind and devised and bequeathed the residue of her estate to Martha Bull, if living, but if Martha Bull predeceased the testatrix the residue was to be held by the trustees of the will upon trust for James McRae Fulton and Robert Beauchamp Fulton, grandnephews of the testa- trix. Martha Bull predeceased the testatrix. By the codicil Robert Beauchamp Fulton was appointed as an additional executor and trustee of the will, and he, being the only surviving executor, applied for probate of the will and codicil.

A caveat was lodged by Henry Alexander Bull, Alice Bull, William Guy Sewell, Cedric Whilton Sewell and Elizabeth Graham, nephews or nieces as the case might be of the testatrix.

An order nisi having been made particulars of objection were delivered which included the following :-3. The deceased did not have testamentary capacity at the times of the execution of the alleged will and the alleged codicil and for a considerable period prior thereto due to insanity or imbecility or senile decay of which the symptoms first manifested themselves about the year 1929. 4. The deceased was subject to and affected by the following insane delusions -(a) That the caveators W. G. Sewell and C. W. Sewell had purchased shares in testatrix's name in Graham Campbell Pty. Ltd. with the money of H. A. Bull (a brother of the deceased) without his knowledge and were dishonest in SO doing. (b) That an application for 1,000 shares in the said company had not been signed by her. (c) That original letters written by the said H. A. Bull with reference to those shares and which had been shown to her were not written by H. A. Bull. (d) That a transfer of cottages at Bairnsdale to H. A. Bull (the caveator) signed by the deceased had been neither signed nor seen by her. (e) That a declaration as to the value of those cottages signed by the deceased had not been signed by her. (f) That an amount of £3,000 in the estate of the said H. A. Bull (brother of the deceased) had not been accounted for. (g) That the caveators W. G. Sewell and C. W. Sewell had not accounted for the share of Edward Bull deceased in money received from one Salter for the sale of Bairnsdale property. (h) That the caveators W. G. Sewell and C. W. Sewell had not accounted to her for her full rents and income. (2) That the caveatrix Elizabeth Graham had stolen a pillow from her.

Martin J. found that the testatrix was not suffering from any insane delusion affecting her testamentary capacity and made absolute the order nisi for a grant of probate in respect of the will and codicil propounded.

66 CLR 297

From this decision the caveatrices and the caveators, other than William Guy Sewell who, in the meantime, had died, appealed to the High Court.

Other material facts appear in the judgments hereunder. Menzies K.C. and Moore, for the appellants. Hudson K.C. and Stafford, for the respondent.

Cur. adv. vult. The following written judgments were delivered :------

LATHAM C.J. This is an appeal from an order of the Supreme Court of Victoria granting probate to a will and codicil made by Elizabeth Bull on 24th July 1940 and 23rd August 1940 respectively. The propounder is a grand-nephew of the deceased, and the caveators are two nephews and a niece of the deceased.

The testatrix was ninety-one years of age when she died, and was active and intelligent up to the time of her death. The codicil propounded relates to the appointment of an additional executor. The will, after giving a legacy to the Victorian Institute for the Blind, leaves all her property to her niece Martha Bull absolutely if the said niece shall be living at her death, and if she shall not be

SO living to James McRae Fulton and Robert Beauchamp Fulton the propounder (if living at her death) in equal shares. The will contains provisions for the event of one or both of these grand- nephews predeceasing the testatrix. Martha Bull died before the testatrix, SO that the two grand-nephews became the beneficiaries in respect of practically the whole estate, which is worth about £12,000.

The will is in every respect rational. The niece Martha had been living with the testatrix for some years before her death and they were on terms of great affection. The brothers Fulton had been very attentive to the testatrix in the closing years of her life.

The attack upon the will and codicil was not based on any allega- tion of general testamentary incapacity (though this ground was formally taken) or upon any irrationality in the provisions of the documents. The opposition of the caveators rested upon allegations of specific delusions with respect to the caveators Guy and Cedric Sewell. These caveators were solicitors, carrying on their profession as partners in the firm of Sewell and Sewell at Colac. For at least twenty years and up to the death of their aunt the testatrix they had looked after her affairs without charge. They made many wills for her. They were for many years on terms of evidently genuine mutual affection with her. They were executors and bene- ficiaries in all the known wills until December 1933 when they were

66 CLR 298

excluded, and they never reappeared in either capacity. It is con- tended for the caveators that their original exclusion should be held to have been due to insane delusions with respect to them which existed in December 1933 and which continued to exist up to the time of the making of the will and codicil propounded.

The facts are fully stated and closely analysed in the reasons for judgment of my brother Williams. I agree with his view of the facts and of the law, and do not think it necessary to state in another form what he has said. But, as this Court is differing from the view of the learned trial judge, I think it proper to state my reasons shortly.

1. In the first place, the evidence establishes, in my opinion, the existence in the mind of the testatrix of insane delusions with respect to the conduct of Guy and Cedric Sewell. She believed that her signatures upon an application for certain shares, upon a transfer of land, and upon a declaration of the value of the land transferred were not her signatures. The Sewells (or one of them) had arranged the transactions to which these documents related. These beliefs were false in fact and were, in the circumstances, completely irrational. There is no doubt that she did sign the documents in question, and the evidence produced to her that she did SO was overwhelming. She had a similar persistent unfounded false belief with respect to letters signed by her brother Henry Bull. She believed that these letters, produced by the Sewells, were not authentic. These beliefs were SO firm that no evidence, no persuasion, could affect them. They involved most serious accusations of deceit, indeed of forgery, against the Sewells, and would necessarily affect the mind of the testatrix in relation to her testamentary dispositions.

The learned trial judge was of opinion that the testatrix did not really hold these beliefs, but, being an obstinate old lady, declined to admit within the family circle that she had made mistakes or forgotten events, and SO persisted in her allegations though she knew that they were false. Many people will tell a lot of lies to save their face when they are in a situation of embarrassment. But in this case the testatrix herself again and again gratuitously made the allegations against her nephews. The evidence is not that she refused to admit the authenticity of documents when some other person raised the subject and challenged her upon it. She herself went out of her way to make these damaging statements both to members of the family and to other persons such as Mr. Thomson, a solicitor, and Mr. Croft, a handwriting expert. This is one reason why I find it difficult to take the view that the testatrix did not

66 CLR 299

really believe what she said and wrote but that, in slandering her nephews, she was protecting her infallibility and her dignity.

Another reason for my opinion is to be found in the practice of the testatrix of adding comments to documents and attaching memoranda to documents relating to the transactions as to which she made the false statements in question. Several of the memoranda became known to other persons only after her death and the language of these memoranda is emphatic. If the memoranda did not express beliefs really entertained by the testatrix they show that she was a malicious liar. But the whole of the rest of the evidence is incon- sistent with such a view of the character of the testatrix. Thus I conclude that she really did hold, and did not merely pretend to hold, the beliefs in question.

2. In the second place, these delusions existed in and before December 1933, when the first will excluding the Sewells was made. On this matter I refer to the detailed consideration of the evidence by my brother Williams.

3. In the third place, the delusions were plainly of such a character as to have "a direct bearing on the provisions of the will": Cf. Banks V. Goodfellow 1. Where an insane delusion "has had, calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity' " (Banks v. Goodfellow 2 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 3 Smee v. Smee 4; Bailey v. Bailey 5 ). This does not mean that a propounder must absolutely demonstrate this negative proposition. He must establish it according to the standard of proof required in civil cases. It will be sufficient for him to satisfy the Court that it is a reasonable inference from the facts that a delusion proved to exist did not affect the disposition in question.

4. 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 with respect to the Sewells 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 Sewells 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

1(1870) L.R. 5 Q. B. 549, at p. 557. 2(1870) L.R. 5 Q.B., at p. 561. 3(1873) L.R. 3 P. &D. 64. 4(1879) 5 P.D. 84, at p. 91. 5(1924) 34 C.L.R. 558, at pp. 570, 66 CLR 300

the delusions, as well as these reasons, did not also influence both the original and the continued exclusion of the Sewells. If these delusions existed-and, as I have said, in my opinion they did exist in 1933 as well as later-they were of such a character as inevitably to affect the provisions of the wills made in December 1933 and in subsequent years, including the will and codicil of 1940 which are propounded. It is, however, sufficient to say that the propounder has, in my opinion, not shown that this was not the case.

The result is that, in my opinion, probate should have been refused to the documents propounded. The appeal should be allowed, the order absolute set aside, except as to costs, and the order nisi discharged. The appellants should have their costs of the appeal out of the estate, and, as the respondent was entitled to defend the judgment which he had obtained in proving the documents under which he held the office of executor, he also should have his costs out of the estate.

The testatrix made a large number of wills and codicils. She made five wills and a codicil after November 1933. The decision in this case relates only to the last will and codicil of July and August 1940. It is to be hoped that the parties will not insist upon litigation with respect to all of these testamentary dispositions. No charges of improper conduct are made against any of the parties. With the concurrence of my colleagues I suggest that this is eminently a case in which, in the interests of all concerned, an agreement should be made to prevent further litigation.

McTIERNAN J. Elizabeth Bull, a spinster, died on 1st July 1941 leaving an estate valued at about £12,000. She was ninety-one years of age. On 24th July 1940 she made a will and on 23rd August 1940 a codicil. The due execution of these documents was conclusively established by the evidence of the attesting witnesses. Besides the question of testamentary capacity the caveating parties put in issue the questions whether this will and codicil were executed in conformity with the Wills Act, and whether Miss Bull did in fact execute them. The appellants now raise only the question of testamentary capacity.

By the will she appointed Martha Bull, one of her nieces, and Mr. Boothby, the solicitor who drew the will, her executrix and executor, and, save £100 given to a charity for the blind, she gave the whole of her estate to Martha and, if she died before the testatrix, in equal shares to J. N. Fulton and R. B. Fulton, grand-nephews of the testatrix, and upon contingencies wholly to one of them or

66 CLR 301

to their children. By the codicil the testatrix appointed R. B. H. C. OF Fulton as an executor and in other respects confirmed the will.

Mr. Boothby and Martha predeceased the testatrix. The latter died on 1st June 1941. The testatrix survived all her brothers and sisters, and was survived by nephews, nieces, grand-nephews and grand-nieces.

The caveating parties are nephews and nieces. They are limited to two families. C. W. Sewell, W. G. Sewell and their sister Elizabeth Graham the wife of George Stuart Graham are three members of one family, and Alice and H. A. Bull two members of another family. The respondent who propounded the will and J. M. Fulton are two members of one family. The substantial question put in issue by the caveat was whether the testatrix had testamentary capacity. It was alleged in the caveat that her capacity to make the will and codicil propounded was destroyed by "insanity or imbecility or senile decay and that she was 'subject to the following insane delusions" which were then set out.

The case was heard by Martin J. There was lengthy oral evidence covering a period of over twenty years and a large volume of docu- mentary evidence. His Honour found that 'apart from the question of the specific delusions alleged, she was a keen, alert old lady of extraordinary physical and mental fitness for one of her advanced years." The italics are mine. The evidence, in my opinion, con- clusively proved that the testatrix had not lost her testamentary capacity in consequence of "insanity or imbecility or senile decay as alleged. The finding of his Honour on this branch of the case is unassailable.

Particulars were given in the caveat of nine alleged insane delusions. The substance of them was that the Sewells were cheats and frauds.

According to the caveators' particulars of the alleged delusions they would be chronic and systematized.

Martin J. said that the evidence about three of the alleged delusions was scanty, and they were not pressed. The others were that an application for 1,000 preference shares in Graham Ferrum Pty. Ltd. which were issued to the testatrix was not signed by her, and that the Sewells had bought them with the money of her late brother, Henry, without his knowledge and thus dishonestly; that letters written by him with reference to the shares and produced by the Sewells were not genuine and a transfer of cottages at Bairnsdale signed by her in favour of her nephew, H. A. Bull, and a declaration of their value had not been signed by her. The alleged insane delusion centering on the shares was said to have been manifested

66 CLR 302

in 1929, that on the cottages in 1933, and both alleged delusions were said to have persisted until her death. These are the alleged insane delusions relied upon by the appellants to upset the will and codicil. Less strongly relied upon is another alleged insane delusion that Elizabeth Graham had stolen a pillow but this allegation may be set aside at once as it depends upon the evidence of Alice Bull, against whose credibility the trial judge expressed an opinion with which there is no possible ground for disagreement.

His Honour found that the testatrix was not labouring under any insane delusion, and that there were a number of grounds unconnected with any morbid fancies why the testatrix would not make a testa- mentary disposition in favour of the Sewells. In the result Martin J. found that it was established that the testatrix had testamentary capacity when she executed the will and codicil propounded by the respondent.

The onus was on the respondent to satisfy the Court below that the testatrix was of sound and disposing mind, memory and under- standing when she made the will and codicil, and that she was not impelled to make either by an insane delusion. Martin J. explicitly adopted and applied this rule as to the onus of proof. The appeal is on law and fact. There is no complaint that his Honour fell into any error of law. The appeal is a rehearing on the transcript of the oral evidence and documentary evidence. It is not a new trial of the case.

A very substantial part of the oral evidence adduced at the hearing by the caveating parties to prove the alleged delusions was given by the appellants. Martin J. said specifically of two of the caveating parties, H. A. Bull and Alice Bull, that they were unsatisfactory witnesses, and in criticizing Alice Bull as a witness made some comment directed against all the appellants. He used these words: "Her evidence in this matter points to the necessity of scrutinizing with great care the testimony of those who are, or may be, interested in an intestacy or in the propounding of a prior will." The appellants strongly rely on their own evidence and that of witnesses within their family circles to prove the existence and persistence of the alleged insane delusions in the mind of the testatrix. This Court is unable to give their evidence any greater value than that to which his Honour's comment reduces it. But the Court is not trammelled in that way in considering the docu- mentary evidence. It is obviously important evidence. The Court should not, however, upset any finding of the learned judge on questions of fact unless it is convinced upon the whole of the evidence that the finding should not stand. The onus is now

66 CLR 303

on the appellants to show that his Honour was in error in holding that the respondent had discharged the onus of proving that the will was not made under the influence of the alleged delusion centering on the shares, or the cottages, or the pillow, and that Miss Bull had a sound and disposing mind, memory and understanding.

The transcript covers the last twenty years of the life of the testa- trix. It deals with her relations with her numerous relatives and neighbours, with the Sewells in their capacity as solicitors, with two other solicitors who made wills for her and gave her advice, with her only medical adviser, with her bank manager, with her chemist, and with others. The documentary evidence includes corres- pondence with the solicitors and her relatives and some memoranda of her own. It appears from the evidence of C. W. Sewell and par- ticularly of H. A. Bull that all her letters had not been produced.

A detailed review of all this evidence including the documents would necessarily be of inordinate length. A summary could hardly be an adequate substitute for this detailed transcript.

As the argument has centred on the alleged insane delusions of the testatrix about the shares and the cottages, it is necessary to guard against giving to her beliefs on these subjects an unduly large influence in the life of the testatrix. A true estimate of her beliefs on these subjects can be made only upon reading the whole of the oral and documentary evidence. I am content to regard the three large volumes of evidence as though they were an appendix to my reasons for judgment.

The time at which it has to be decided whether an insane delusion supplied the motive for her will is July 1940. The case for the appellants appeared to be argued on the assumption that if it were shown that insane delusions impelled the testatrix to omit W. G. Sewell and C. W. Sewell from her will of 5th December 1933, they having been included among the executors and residuary beneficiaries in every previous will, it would follow that she was labouring under these insane delusions seven years afterwards and they then impelled her to disinherit all the caveating parties. Two of them, H. A. Bull and Alice Bull, were however appointed executors by this will of 5th December 1933 which is alleged to have been made under these baleful influences. Moreover they, their brother, Robert, and Martha Bull were the residuary beneficiaries in that will. Neither Elizabeth Graham nor Alice Bull received anything under it nor under that of 25th May 1933, the last will of the testatrix appointing the Sewells as executors. By this will the caveator, H. A. Bull, was also appointed an executor, and all the caveating parties except Elizabeth Graham and Alice Bull were made residuary beneficiaries. The other residuary beneficiary was Robert Bull.

66 CLR 304

Martin J. found that the testatrix did not ever labour under an insane delusion. The appellants have to show, having regard to the case they make, that this finding is wrong as to her mental condition in December 1933. If they succeed, they must also show that it was wrong as to July 1940. If they fail as to December 1933, they cannot possibly succeed as to July 1940. For that reason it often appeared from the appellants' argument that the case was about the will of December 1933 and not the will of July 1940. The hypothesis of the appellants, that the testatrix was afflicted in December 1933 with insane delusions, which beset her for the remaining eight years of her life, must be reconciled with the evidence given about her life generally during those years. To labour under insane delusions is to be mad. The evidence proves that not one of the persons who ever met her in her lifetime suspected her sanity. Such persons included a doctor, solicitors, a banker, the matron of a hospital, a nurse, and the manager of a trustee company. Their evidence shows that her speech and habits were, since 1933, as before, rational, and that no change occurred in her except that made gently and almost imperceptibly by advancing age.

The testatrix made oral and written statements substantially on the lines of the particulars of the alleged insane delusions about the shares and the cottages. These statements were all quite false. She asserted that she did not sign the application form for the shares nor the transfer nor the declaration of value, and made accusations of malpractice about these documents, that the letters of her late brother put forward by the Sewells were not his letters, and that they used his money without his consent to purchase the shares. She repeated these assertions after she had convincing proof of their falsity.

The last letter in which she made any such assertion was written on 5th April 1935. But altogether there are not a half-dozen letters in which she ventilates her false ideas about the shares. Two are produced by H. A. Bull, who said he had swags of letters from the testatrix. It is significant that these are two of the very few letters produced. Oral assertions were made before 1935 to the same effect as the written statements. Both kinds of statements were only intermittent. They were not being continually made.

The testatrix was once provoked to return to her charges when she learned that C. W. Sewell had attributed her troubles to loss of memory. He made this statement in a letter to Mr. Thomson, a solicitor whom the testatrix consulted chiefly about the shrinkage in her receipts of income from the Sewells who were, as solicitors, managing her interests. The statement which they had made to

66 CLR 305

her some years before about the amount of income she would receive was not realized owing to the depression. Mr. Thomson, who had known the testatrix for many years, in a letter of 12th December 1933 to the Sewells agreed with them that her memory was failing. But he did not suggest that she was suffering from any insane delusion. Indeed, he made a will for her in December 1933. The loss of memory to which he and the Sewells referred was an inability to remember some transactions in which she took part. The testatrix was always intent on her property, knew and remembered its nature and existence and there can be no doubt that she always remembered her nephews and nieces and their children.

The testatrix wrote many letters after 1935, but, as has been stated, she did not express her feelings about the shares or the transfers. Some of the witnesses said that after 1935 she talked about the shares and the cottages in a way that indicated she still had her false ideas about these matters. Much of this evidence is sketchy and uncertain, but the evidence as a whole disproves that she had any such emotional attachment to the ideas as would indicate that her mind was deranged.

The evidence of her banker, Mr. Baragwanath, a disinterested witness, impressed the trial judge and affords very cogent proof that she had no insane delusions. She knew Mr. Baragwanath for many years and had very often interviewed him about her affairs. She sought his advice, and it is obvious that she both trusted and liked him. Their business relations ceased in 1939, when he left the bank, and he visited her subsequently. She had many opportunities reveal her grievances to him. She revealed some, but they did not include her grievance about the purchase of the 1,000 shares in 1924. Nothing was ever said by her to him to suggest that she had any delusive beliefs on that subject. And this is very significant, because she ventilated her anxieties about the transfer of the cottages. She asked him where that document was. He told her that she could see it at the Land Titles Office. In the course of the conversation she said that one of her difficulties was that the transfer included vacant land as well as the cottages. There is evidence that she said that she did not intend to give H. A. Bull, the transferee, the land as well as the cottages. Mr. Baragwanath said she expressed doubt about the transaction, but he was clear that she did not suggest that her signature had been forged or that there had been any corrupt work. Subsequently she told him she had inspected the documents, as was the fact, and asked for the name of a handwriting expert. This interview occurred somewhere about the end of 1938.

66 CLR 306

The expert who was recommended made an inspection of the transfer. Mr. Baragwanath said that the testatrix did not remember signing the document and wanted to make sure that she had signed it. The hand- writing expert told the witness that her signature was on the transfer and she informed Mr. Baragwanath of this fact. In evidence he was J. asked this question "Did she ever say anything after that on the

subject of whether, in view of her interview with Mr. Crofts" (the handwriting expert) " she was still dissatisfied or she was satisfied Mr. Baragwanath's answer was: "No, she was satisfied that she had signed it." Martin J., who formed a favourable opinion of this witness, gives this answer its plain meaning. His Honour said " After that she let Baragwanath know she was satisfied she had signed it." This is powerful evidence that at least twelve months before the will and codicil were made the testatrix was free from any insane delusion about the transfer. Her troubles about the declara- tion of value appeared to have faded away, because she did not refer to that document at all in these conversations with Baragwanath.

There is evidence that in 1940 she had more than once expressed gratification that H. A. Bull had the cottages and land, although she said she did not at first intend to give him the land. This evidence affords cogent proof that in July and August 1940, when the will and codicil respectively were made, the testatrix was not affected with an insane delusion that her signature was forged.

It is revealed in the evidence of Elizabeth Graham that she and her two sisters spent Christmas night of 1940 at her home with the testa- trix and her niece, Martha. There is no suggestion that on this occasion the testatrix brought up any of her troubles about the shares, the transfer or anything else. This witness was called to prove, among other things, the persistence of the alleged delusions. It is also revealed that she and the testatrix, while not on visiting terms, often conversed over the fence-they were neighbours from 1936 onwards. These occasions passed away without any reference to the shares and the transfer.

The Sewells, Elizabeth Graham's brothers, did not visit the testatrix after 1936. Alice Bull, who visited the testatrix down almost until the end of her life, said that the testatrix showed regret that the Sewells did not visit her.

Martin J. adopted the right view in saying that the testatrix was not afflicted with the delusions alleged. All these facts show that she was able to detach herself from any unfavourable ideas which she had of the conduct of the Sewells in respect of the matters about which it is alleged she entertained the insane delusions. In his History of the Criminal Law of England, (1883), vol. 2, p.

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142, Sir James Fitzjames Stephen makes these observations about the nature of an insane delusion: "The condition in which a person is the victim for a time or permanently of fixed delusions is called monomania. The word has been objected to on the ground that it suggests that the disease is much more limited in its extent than it really is, involving nothing more than isolated mistaken beliefs not capable of being dispelled by reason. It appears that this view of the disease is incorrect. Such fixed delusions proceed from a profound disturbance of all the mental powers and processes."

The circumstances in which the ideas which the testatrix had about the shares and the transfer of the cottages arose were :-Her brother Henry died in 1926. Before that time the testatrix had no experience of business. She never even paid an account. Her brother managed her affairs and her only function was to sign what he put before her. She was seventy-six years of age when her brother died. In 1924 she signed the application form for the shares about which the trouble arose in 1929. It was signed to carry out a transaction arranged between her late brother and C. W. Sewell, who gave unconvincing evidence suggesting that the testa- trix, who was about at the time, knew what was arranged and could not have forgotten it. If she was aware of what she signed, there can be no doubt that in September 1929, when the first dividend was paid on the shares for which she nominally applied, she had completely forgotten about the transaction. She was then nearly eighty years of age. She did not receive the scrip for the shares from C. W. Sewell until 3rd December 1929, and was not shown the application bearing her signature until August 1933. The evidence shows her ignorance of the technique of a purchase of shares by one person in another's name. Besides, there is no doubt that for a considerable period after 1929 she got conflicting accounts of the way in which she became the owner of the 1,000 preference shares. She held 250 ordinary shares which her brother bought for her early in 1924, and had custody of 500 which he bought for himself and in which she had a life interest. She described the certificates for these 750 shares as the receipts, and she was naturally puzzled that she did not have a" receipt' for the additional shares. Having no recollection of the transaction, the testatrix was more anxious about how SO much money came to be invested in this company she had shares which had not been paying a dividend-than pleased at the receipt of this windfall. Elizabeth Graham's husband was its managing director, and the testatrix knew that the Sewells had applied to her late brother to lend £100 to the company, and that he obliged reluctantly, but said he would not put any more money

66 CLR 308

into it. She thought erroneously that her brother lent the money before he bought the additional 1,000 shares. In fact he lent the money afterwards.

In 1932, when the testatrix signed the transfer conveying the cottages to H. A. Bull, she was eighty-three years of age. Again she showed her deficient knowledge by saying that she expected she would need to make deed of gift." She presumably meant something more solemn than the signing of an instrument of transfer. There can be no doubt that twelve months afterwards, when she wrote to C. W. Sewell about taking steps to complete the gift to H. A. Bull, she forgot that while at Colac she signed the transfer and the declaration of value. It was done at her nephew's home. And when she was told that she signed it before the Clerk of the Courts at Colac, it would not be surprising that this conveyed to her the idea that she had done SO at the court-house. It would be a bold assumption to make that either the signing of the applica- tion form or the transfer of the cottages and the declaration of value were facts that stayed in her mind.

The testatrix had her own preconceived ideas about 'receipts and " deeds of gift." Neither transaction had proceeded in fact according to her ideas. Besides, in the case of the shares she had received explanations which C. W. Sewell in his evidence admitted were confusing. She had formed her own opinions. The explanations capable of completely dispelling the confusion about the shares was not given until 1933. Then her worries about the transfer began. Besides being ignorant of business she was obstinate, proud, and eighty-three years of age. It was said in evidence of the testatrix that once she got a bone in her mouth she never let go," and that it was a family tradition that aunt would never admit that she was wrong. Martin J. came to the conclusion that the behaviour of the testatrix in making false accusations about the shares and the transfers of the cottages, after receiving proof of their falsity, was an exhibition of pride and obstinacy which were characteristic of her. His Honour applied the right criterion. The question was whether this testatrix-that is to say, a testatrix of her antecedents, experience and character-had insane delusions on these matters. I am not satisfied that the infer- ence which Martin J. drew is a less probable one than that her behaviour indicated that her mind was deranged. It is not surprising that it was not possible to get permanently into that mind ideas differ- ing from her own ideas. There is no expert or other evidence that the few written statements she made about her troubles connected with the shares and the transfer of the cottages, upon the nature of which

66 CLR 309

the caveating parties SO strongly rely, are traits of madness. They are not the only matters about which she left a record. The statements were defamatory of the Sewells, especially if the innuendo is that they copied her signature. That allegation is not expressly made by her. It is a very long step to the conclusion that the testatrix would not have made the assertions unless she was mad. It does not appear to me to be at all probable that the testatrix, having regard to her natural limitations, would consider whether her assertions were injurious to the Sewells. The question may be asked, If she had been prosecuted for criminal libel, would a plea of not guilty on the ground of insanity-insane delusions-have held water ?

The troubles about the shares and the transfer of the cottages were not the only serious matters that cropped up between the Sewells and the testatrix. She had lived with and had kept house for her two unmarried brothers Edward and Henry. She had lived alongside the home of her brother Joseph, the father of the two caveators, H. A. Bull and Alice Bull, down to the time her brother, Henry, was stricken with paralysis. Her nieces and nephews, the Sewells, had spent most of their school holidays with her and her bachelor brothers. She was attached to them as well as to Alice, Robert and H. A. Bull, the chil- dren of her brother, Joseph Bull. W. G. and C. W. Sewell became solicitors and partners under the firm name of Sewell &Sewell. When Henry moved to the city in 1925, the testatrix chose a house alongside her niece, Elizabeth Sewell, who had married Stuart Graham. Some time after Henry's death an arrangement was entered into whereby two rooms and later a garage were added to Graham's house. The testatrix paid one-third of the cost outright and the remaining two- thirds, a sum of over £200, was advanced to Elizabeth Graham as a loan without interest out of her share in the residuary estate of her uncle Henry. As the testatrix was the life tenant under his will, this arrangement involved a gift by the testatrix to Elizabeth of the interest on £200 during the life of the testatrix. In the result Eliza- beth Graham had this sum free of interest for fifteen years. She had also received from the testatrix, as a gift, the land upon which the house was built. The cost of the garage was £30. Unfortunately Elizabeth Graham found the arrangement inconvenient and made it plain to her aunt, that she, the testatrix, could no longer remain in

the Graham household. The Sewells negotiated this very advan- tageous arrangement for their sister, Elizabeth Graham. No sugges- tion was ever made to compensate the testatrix for her expenditure. The Sewells took an indemnity from the testatrix protecting them- selves as the executors of Henry's will in the matter of this loan without interest, but made no provision for securing to the testatrix

66 CLR 310

any permanency of residence. C. W. Sewell said in his cross- examination that from his experience it would be an "insane thing to do to try to make two people live together under an arrangement of that sort." In his evidence C. W. Sewell said 'We were not advising her" (the testatrix) " in the matter." Nobody else advised her. This admission discounts the suggestions made as to the constancy of the devotion of the Sewells to their aunt's interests. Their sister's decision deprived their aunt, the testatrix, of the advantages which were the sole purpose of the arrangement. The blow was a heavy and grievous one to the testa- trix, as her letter dated 19th November 1929 to her niece Martha shows. The testatrix not only contributed largely to the expense of the building, but also paid twenty-five shillings per week for her board and had her own furniture. Pathetically she wrote to Martha: "You do not know how I long for a corner I could call home." She underlined home. No doubt she believed that she had purchased security by that monetary contribution and that it would be reinforced by the affection of her niece for her. In the letter already quoted she wrote " I told Bess she should have thought before rushing me into the building, she said it had spoiled her house,

I do not think as I paid for the edition (sic) that they could put me out. I have been lying awake for hours at night trying to think it all out and what to do." Elizabeth Graham's conduct was clearly calculated to excite the animosity of the testatrix. An undated letter fixed as of about 24th July 1931 from Elizabeth Graham to the testatrix well merited the endorsement the testatrix made upon it "This letter from Bess Graham upset me terribly and I never answered it, but it was too insulting."

Even before 1929 the relations between her and the Sewells were full of troubles. As early as 21st September 1927 she wrote to Cedric Sewell asking about the proceeds of the sale of Riverview (her own property). In the same letter she inquired about the Graham com- pany. She wrote "I would also like to know something of Stuart's business, the last time you wrote to us for £100 towards improving the works uncle Henry said we would put no more money into it, should there not be interest on that £100, do not think I am consulting the family on this matter it is all on my own and I think I have a right to know my own affairs."

In May 1927 in a letter to W. G. Sewell she queried the payment of £100 in connection with the bringing of Ida, Sewell's sister, from Finland. The portion of her letter dealing with this query is interesting as it does not appear to be answered in any of the corres- pondence in evidence "I cannot understand about the £100 bond

66 CLR 311

uncle Henry and I sent to you March 1925 to use for Ida SO do not H. wonder that I was surprised when I heard that £100 was taken out of F. Smith's" (the purchaser of Riverview) " money to pay it." This item of £100 is shown in W. G. Sewell's letter to her dated 5th May 1927. It appears thus "Towards Ida's expense from Finland £100 (the balance £67 was paid by Cedric and me).' " Ida's affairs again crop up in a letter to C. W. Sewell from the testatrix dated 27th July 1928. She directed that the allowance to Ida of £4 6s. 8d. a month that had been debited against her account was to cease in the following month. The long letter in which C. W. Sewell replied to her on 17th September 1928 was reproachful. Elizabeth Graham had also attacked the testatrix on her dealings with Ida.

During the period from Henry's death to 16th August 1928, the testatrix had made four wills. Previous to Henry's death she had made at least three wills, in all of which she had appointed the Sewells and Henry to be executors. In the will she made on 8th March 1927 she appointed Alice Bull in conjunction with W. G. and C. W. Sewell. At this the Sewells took offence, as appears in their letter to the testatrix dated 15th August 1928. C. W. Sewell wrote 'As a matter of fact when you appointed Alice before we did not take it as a compliment to us that you should imagine it necessary to appoint another executor with us.

But Aunt if you were in the position of Guy or myself and I had for a number of years appointed you as my executor and then without any apparent reason appointed someone else with you would you not be inclined to feel that I had lost my confidence in you ? " This statement not correct in its implication that they were the only executors of her will. A perusal of the wills made by the testatrix show that up to the date of her brother's (Henry) death he had always been an executor of her will in conjunction with them and that in the very first will after his death she appointed Alice Bull and the two Sewells. In her next will she followed this practice, but altered it in the following will made on 19th April 1928, by which she appointed the two Sewells only as executors. By her will dated 16th August 1928 she again appointed Alice Bull to act in conjunction with the Sewells. It is in the letter forwarding this will for execution that the Sewells take the testatrix to task for appointing Alice.

In the will she made during Henry's life at first she left everything to him absolutely, but in later wills she gave, in the event of his pre- deceasing her, certain legacies to her niece Martha Bull, to J. R. Fulton, R. B. Fulton, and to Elizabeth Fulton, their mother, with an equal division of the residue between eight Sewells and three Bulls.

66 CLR 312

At a later stage Henry is left a life interest and, subject to such life interest, Alice Bull is left a block of land, the three Sewell women get the gift of a residence, there are the same legacies and the disposition of the residue. There is very little alteration in the next two wills, except that Elizabeth Fulton's name is removed, as she had died. Then Martha kept house for the two Fulton boys until she went to live with the testatrix. In the will of 19th April 1928 Alice Bull is not appointed as executrix. By that will Alice Bull is to bring into hotchpot the proceeds of the sale of the land which the testatrix had given to her. However, from her letter giving instructions for a new will dated 7th August 1928 to C. W. Sewell, whatever umbrage the testatrix took at Alice's selling of the land had disappeared. She wrote "I also want to cut out that part about Alice's land. I gave her a gift of the land and she was quite right to sell it." It thus appears that not only H. A. Bull but his sister Alice received a substantial gift of land from the testatrix. In Sewell's letter of 15th August 1928 there is a reference to statements supposed to have been made by Alice Bull and H. A. Bull "with regard to the justice of Uncle Henry's will." The letter continues " As I told you then, I do not believe either of them would think or say such things and I thought in any event that it was very improper that anything they had to say should be repeated to you and I felt the communication of such things to you could have been made for no proper object." In her will of 16th August 1928 she included Lavinia Bull and Martha Bull with the three Bulls and the eight Sewells as residuary beneficiaries. She gave her reason for this in her letter of instructions. She wrote: "I have been thinking a great deal about my two nieces and I feel I ought to help them and they are the only ones who have to work for their living. Lavinia is the only one who did not get a legacy at any time now I wish to make her a present of £100-one hundred pounds." Lavinia died some time after this will was made.

I now come to the period which began when the testatrix was turned out of Elizabeth Graham's home. She went to stay with Alice Bull at her private hospital, Bairnsdale. It was then that she made the first breach with the Sewells as her legal advisers. The evidence of the causes could only be obtained from the Sewells and from H. A. Bull and Alice Bull. Alice Bull admitted that her aunt was complaining that she could not understand the variations in her income. It came from her interest as the life tenant of her brother Henry's estate and her own investments. The Sewells were the trustees, and they were also

66 CLR 313

managing her investments. The statement made by the Sewells in a letter written to her soon after her brother's death that her income would be £40 a month was not being realized, The shrinkage was due to the depression. But the testatrix did not appreciate the effect of this crisis. She was agitated too about the shares in the Graham company. Alice admitted that her aunt told her she got Mr. Thomson, a Bairnsdale solicitor, to make her will. The testatrix had already written to H. A. Bull about these shares. According to him his aunt told him she was going to cut the two Sewells out. His Honour did not believe that evidence, because of the demeanour of this witness. There is no record of the contents of the five wills drawn by Thomson between 5th December 1929 and 12th June 1931. From her will drawn by Thomson and executed on 23rd November 1931 it appears that she appointed H. A. Bull and the two Sewells her executors. It is not unreasonable therefore to assume in spite of H. A. Bull's evidence that she had appointed them in her previous wills made by Thomson. By this will she gave to Martha, who had been living with her since 1930, the house and furniture for life, with the remainder to May Sewell and Elizabeth Graham, and, after certain legacies, left the residue to Martha Bull, May Sewell, Elizabeth Graham, H. A. Bull, C. W. Sewell and W. G. Sewell. To this will she added a codicil dated 4th May 1932 giving the cottages at Bairnsdale to H. A. Bull. It is quite obvious that the Sewells knew she had consulted Thomson and that they believed that he had made a will or wills for her.

It appears that on her return to 31 Albert Street, which was next door to Elizabeth Graham's home, the testatrix was again friendly with her. The chief cause of such friendship was the warm affection the testatrix had for " little Bob " Elizabeth Graham's son. While still not understanding the variations in her monthly statements and observing that the forecast of the Sewells that she would have £40 per month was far from realization, she did again consult C. W. Sewell in December 1931 about her will.

On 10th December 1931 she wrote to Cedric a letter which is important for several reasons. It recalled to his mind the fact that she was left without a home. This is of course a reference back to 1929. She displayed a lively anxiety to protect and provide for Martha. She told him Thomson had made her will and that she had appointed his brother and himself as her executors. This all appears in the following extract from her letter "Some time ago you will remember

I was left without a home &it was a great trial to me and if at the time Mattie could not have come to me I do not know what I would have done, but just at the time fortunately for me she was without

66 CLR 314

a home also, of course I have to provide for her while I live and if she survives me I have to provide for her when I die, SO I being the last of my generation decided to make my will, I went a good deal by your Uncle's will and have made you and Guy my executors. Mr. W. B. Thomson fixed it all up for me." A further letter to the J. Sewells which is dated 10th August 1932 shows her deep concern

for Martha. In it she writes: "I was thinking of writing to you about my will, I am not at all satisfied with the provision I have made for Mattie she knows nothing about what I have done, but a little while ago she was talking about being left alone, &she said she would never live with any of her relations nor would she live alone, she would live at a Ladies Home and pay her board &be independant (sic), she is 64 years old &in all probility (sic) will out- live me, I would like to leave her independant (sic), I know her uncle Henry meant to do this &it is a mystry (sic) to me that he did not do so, I want you to advise me what to do as it is a great worry to me. I wish I was near you to talk over it, you know all the other nieces and nephews are remembered in his will &I cannot think why Mattie who neaded (sic) it most should be left out. I will send you a copy of my will. Mr. Thomson has the will please Ced write soon &ease my mind, should I make a new will &let my house go into my estate." C. W. Sewell replied to her on 11th August 1932 and gave it as his opinion that 'it would not prove satisfactory to leave the house as you have to Mattie." He sug- gested an annuity. The testatrix apparently accepted his advice. His response was to draw a codicil revoking the devise to Martha of the house, the gift to her of a share in the residue, and providing for her an annuity of £50 per year. This codicil was signed on 16th September 1932 at W. G. Sewell's residence at Colac, where the testatrix had come for a holiday. At the same time she executed the transfer of the cottages to H. A. Bull. It is clear that she was familiar with will making and it is not to be assumed that because she remembered signing a will she would remember equally well the signing of a transfer. Naturally the testatrix was dissatisfied with this codicil. A fresh codicil was executed on 30th September 1932 giving Martha £52 per year instead of £50. The effect of these codicils was clearly to make Martha's position much worse, although the testatrix asked C. W. Sewell to improve it. In his cross-examina- tion C. W. Sewell admitted this. By the codicil Martha lost her life interest in the house 31 Albert Street, which according to his evidence would let at from thirty shillings to two pounds per week, and her one-sixth share of the residue. It is unfortunate that the draft of the codicil of 30th September 1932 is missing. C. W. Sewell

66 CLR 315

thinks he drafted it himself.

When the effect of the codicil became apparent to the testatrix she was profoundly disturbed. She wrote to C. W. Sewell on 26th November 1932 I find I made a mistake in signing the codicil to my will without reading it over, I revoke that part of my will about my house &furniture being left to my nieces, but I do not agree to my niece Martha Bull being only the recepient (sic) of a paltry 52 pounds a year which would not pay her board &lodging &I do not intend her name being left out of my estate, I would rather leave out Bessie Graham as she has a home &husband to provide for her, Martha is the only one of all my nieces and nephews who has no home if she outlives me SO her name must remain as it is in my will.

She is to get her share of my estate as is in my will, I also leave the contents of her bedroom which she occupies in 31 Albert St. to Martha Bull. Will you please get the Codicil made out in a few days &releive (sic) me of the worry it is causing me I want it to end. I feel it very much as I have no one in this world to consult with but you." To this letter C. W. Sewell replied on 29th November 1932 forwarding a fresh codicil and giving the unfortunate assurance that the codicil as then drawn would not affect Martha's interest under the will in the residue. On 30th November 1932 the testatrix replied with a letter plainly showing her annoyance. It concludes " I hope we will be able to come to an amicable arrangement for it is taking a lot out of me." To this C. W. Sewell answered on 2nd December 1932 pointing out that it was her place to decide and his to follow her instructions, but instead of doing SO he entered into a long explanation in which he said that provision for the annuity of three pounds per week, suggested by the testatrix, would exhaust all her estate and " leave nothing for anybody else." He continued "under all the circumstances it would be best to follow your original idea of leaving Mattie a share in the residue." With the letter he returned the codicil forwarded on 29th November. In fact it deprived Martha of her share in the residue and of the life tenancy of 31 Albert Street. If the testatrix executed it, Martha would have been left only with the furniture and fifty-two pounds per year. The testatrix acknowledged receipt of this codicil but did not execute it. The only thing for the testatrix to do was to go to another solicitor. She consulted Mr. Thomson who drew a fresh will for her which she executed on 12th December 1932. There is no evidence of the contents of the wills of 12th December 1932 and 3rd February 1933.

Comment has been made on the number of wills she executed. To comment adversely is to ignore the circumstances of the testatrix.

66 CLR 316

She was the head of a numerous clan of collateral descendants, and 1942.

she applied herself conscientiously to fitting her testamentary dispositions to their needs as she saw them. In the course of her long life their circumstances underwent changes. In some cases they materially improved. Three caveating parties, Alice Bull, J. H. A. Bull, and Elizabeth Graham, had received considerable gifts

from her in her lifetime. Her wills were not made to please her fancies. They were serious and well-considered efforts to make a just distribution of her estate. There is a significant passage in a letter from Thomson dated January 1933 to her. It is as follows "I quite understand the difficulty you feel about dividing your property among SO many relatives, but you are quite right in doing SO in accordance with your own wishes and not those of others."

In the next will made by Thomson for her on 25th May 1933 the Sewells with H. A. Bull were appointed executors, legacies were given to various members of the Bull and Sewell families, the residence 31 Albert Street with its furniture absolutely to Martha, whose name heads the list of the residuary legatees, which in addition to her includes H. A. Bull, Robert Bull, W. G. Sewell and C. W. Sewell. Alice Bull and the remaining Sewells were excluded.

In 1933 a considerable correspondence passed between the testatrix and C. W. Sewell, in which it is evident that the testatrix was dissatisfied with his firm's management of her affairs. She was confused as to the return from Henry's estate, and claimed that as she was his executrix she should be informed about its administration. It is unfortunate that in his reply C. W. Sewell did not tell her that no grant of probate had been made to her. This might have saved all the unpleasantness in 1938, when the shares belonging to Henry's estate were sold.

Once more an acute position arose over the 1,000 shares in the Graham company, and C. W. Sewell felt bound to write a long letter to her complaining of her statement and of Baragwanath's action in ringing up the company. In her reply she complained of being left in ignorance during her brother's lifetime of our affairs," expressed her gratitude for all C. W. Sewell was doing for her and referred to Martha as "a great blessing to me." The sting of the letter was in the postscript. After pointing out that Baragwanath was an old friend and knew their uncle in Bairns- dale, she added: " I do not mean to show him your letters as you propose, as I am not in the habit of insulting my friends and do not be afraid of him at all interfering in my family affairs."

66 CLR 317

In July 1933 she had a fierce quarrel with Elizabeth Graham which further strained the bonds between her and the Sewells already fundamentally shaken by their failure or reluctance to draw the codicil she desired. She certainly did not understand the vexed question of the 1,000 shares in the Graham company. The attempts at explanation by the Sewells, though painstaking, were given with an understandable attitude of resentment at the implica- tions which the denials of the testatrix involved. But when " the boys," for SO she called the Sewells, got on their high horse she promptly mounted hers and in her self-willed way would not yield. She was fully aware that their explanation did not agree with that given to her by Stuart Graham.

The arrangement made by the Sewells to send her £40 per month from her moneys under their control was altered to £30 per month. On 14th February 1933 she wrote to them "Please return to the formar (sic) monthly cheque of £30 pounds, I know the interest is reduced but not SO much as to lessen my monthly cheque by £10." On 19th October 1933 she requested them to send the usual monthly statement, as they had previously done, as it would be more satisfactory for her to know how her accounts stood month by month. She wrote many letters about these matters. Her dissatisfaction led her to consult Mr. Thomson, who wrote to the Sewells. They sent him a very full explanation which was quite unexceptionable, in a letter dated 7th December 1933, to which Thomson replied on 12th December 1933. Mr. Thomson afterwards obtained permission from the Sewells to show the testatrix, his client, their letter to him. It was shown to her in April 1934. There were statements in it which aroused her anger. The letter contained a curious, and to one of her disposition a provocative, statement as to her not needing £30 per month. It contains an attack on her friend Mr. Baragwanath, which C. W. Sewell admitted was based on nothing more than suspicion. There was no real basis for the suspicion. There was also the statement It seems obvious that Aunt's memory is failing." It is patent that this last statement embittered her and rankled in her mind. She retaliated by writing the false statements about the shares and the transfer of the properties. It is obvious that those statements were a reply to the attack on her memory. Thomson had shared C. W. Sewell's opinion about her memory, and thought that loss of memory was the explanation of her troubles about her affairs. Neither attributed them to any form of madness. On 5th December 1933 the testatrix had signed the will drawn by Thomson which left out the Sewells and appointed H. A. Bull and Alice Bull as executors.

1(1873) L.R. 3 P. &D. 73 (note). 2(1870) L.R. 5 Q.B., at p. 565. 3(1920) S.C. (H.L.) 63. 4(1899) A.C. 1. 66 CLR 342

Law and Practice, 2nd ed. (1927), p. 55, that Lord Haldane's remarks were made in a case where his Lordship had already decided that the belief in question was not an insane delusion and that he could not have intended to assert as a general proposition that where insane delusions are proved to exist the burden of proving that they affected the disposition of property is on those who attack the will. The point discussed in Jenkins v. Morris 1 to which his Lordship referred was whether a person who had an insane delusion had the capacity to contract. In Waring v. Waring 2 the Privy Council had held, presumably relying on medical views current at the time, that the mind was one and indivisible, SO that if a person suffered from an insane delusion upon any subject however remote from the matters he would have to consider in making his will he lacked testamentary capacity. In Jenkins v. Morris (1) Hall V.C. in the Court below and the Court of Appeal on appeal disagreed with this view, which had not been followed in Banks v. Goodfellow 3. It is now recognized that the mere existence of a delusion does not deprive a testatrix of testamentary capacity. As Langton J. pointed out in In the Estate of Bohrmann 4: "Paranoia

is that form of delusional insanity which is entirely consonant with a clear unclouded intelli- gence on subjects which are unconnected with the delusion." But Hall V.C. 5 and Baggallay L.J. 6 both expressed the opinion that where there is evidence of a delusion the onus is on the party pro- pounding the will to establish that it did not affect the disposition. In Waring v. Waring 7 it was stated that the onus probandi is on those setting up any act done or instrument executed after the malady has been established. In Banks v. Goodfellow 8 the Court said: " We readily concede that where a delusion has had, as in the case of Dew v. Clark 9, or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity." Lord Atkinson in his speech in Sivewright's Case 10, after agreeing that there was no disorder in the mind of the testator poisoning his affection for his wife, left unanswered the question where the onus of proof lay. He said: "Even if the delusion under which the testator undoubtedly suffered was of a character calculated to affect his testamentary dispositions to his wife's prejudice, of which I have some doubt, there is not only an entire absence of

1(1880) 14 Ch. D. 674. 2(1848) 6 Moo. P.C. 341 [13 E.R. 3(1870) L.R. 5 Q.B. 549. 4(1938) 1 All E.R. 271, at p. 277. 5(1880) 14 Ch. D., at p. 680. 6(1880) 14 Ch. D., at p. 685. 7(1848) 6 Moo. P.C., at p. 369 [13 8(1870) L.R. 5 Q.B., at p. 561. 9(1826) 3 Add. 79 [162 E.R. 410]. 10(1920) S.C. (H.L.) 63. 66 CLR 343

evidence to show that it in fact did SO act, but, in my view, the reason- able inference to be drawn from all the facts proved is that it did not do so 1. Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it (Mortimer's Probate Law and Practice, 2nd ed. (1927), pp. 53-55 Sutton v. Sadler 2; Landers V. Landers 3; Bailey v. Bailey 4; Timbury v. Coffee 5; Derrett v. Hall 6 ).

But in the present case the evidence is sufficient, in my opinion, to prove affirmatively that at all material times the testatrix was convinced her morbid fancies referred to in the particulars were realities, whether this was due to failure of memory or a paranoiac condition is immaterial, SO that probate of the will and codicil pro- pounded should be refused, and the appeal therefore allowed.

Appeal allowed. Order absolute set aside except

as to costs and order nisi discharged. Costs of appeal of appellants and respondents to be paid out of the estate. Solicitor for the appellants, Colin C. Bugg, Colac, by Harwood &Pincott.

Solicitor for the respondent, Allan E. Willox.

1(1920) S.C. (H.L.), at p. 66. 2(1857) 3 C.B. (N.S.) 87 [140 E.R. 3(1914) 19 C.L.R. 222, at pp. 235, 4(1924) 34 C.L.R. 558. 5Ante, p. 277. 6