Croft v Sanders

[2019] NSWCA 303

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Croft v Sanders [2019] NSWCA 303
Hearing dates:	3 June 2019
Decision date:	12 December 2019
Before:	Bathurst CJ at [1]; Gleeson JA at [2]; White JA at [3]
Decision:	Appeal dismissed with costs.
Catchwords:	SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect
Cases Cited:	Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Brown v McEnroe (1890) 11 NSWR Eq 134 Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 In the Estate of Park [1954] P 112 Re Estates Croft, deceased [2018] NSWSC 1303 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 Wechsler v Du Maurier [2002] NSWCA 13 Worth v Clasohm (1952) 86 CLR 439 Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197
Texts Cited:	Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045]
Category:	Principal judgment
Parties:	Leah Croft (First Appellant) Esther Croft (Second Appellant) Anna Sanders (First Respondent) David John Sanders (Second Respondent)
Representation:	Counsel: G P McNally SC with D G Stewart (Appellants) L Ellison SC with S Reuben (Respondents)   Solicitors: Matthews Dooley & Gibson (Appellants) Hunt & Hunt (Respondents)
File Number(s):	2018/348248
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 1303 Date of Decision: 19 October 2018 Before: Lindsay J File Number(s): 2016/33995; 2016/48899

HEADNOTE

[This headnote is not to be read as part of the decision]

Mr Warwick Croft (“the deceased”) died on 4 January 2016 aged 85 leaving a will dated 11 October 2013 (“the 2013 will”). An appeal was brought by two of his six daughters (Leah and Esther Croft) against a decision of a judge of the Equity Division to grant probate of the 2013 will, of which the respondents, Anna and David Sanders, were named executors. By an earlier will, the deceased had left substantial assets to his all six of his daughters. By contrast, the 2013 will left only $40,000.00 to five of the six daughters, with Anna receiving the balance of the estate – worth approximately $3.0 million.

The appellants alleged that the deceased lacked testamentary capacity when he made the 2013 will. The asserted lack of capacity was said to arise, first, from alleged cognitive impairment (in the form of dementia) preventing him from weighing the respective claims of all his children to his estate, and secondly, from a pattern of delusions or hallucinations. Such delusions or hallucinations included that: his daughters were running a brothel or working in one; someone had kidnapped his wife, June; Leah was possessed by demons; he was hearing recordings of June’s voice in his house; he saw a black panther in his yard or street; and he saw Ruth, another of his daughters, running down a fence.

Some of the deceased’s daughters had divided into two factions around family law proceedings between the deceased and his wife. Two daughters supported the latter, while the respondents sided with the former. Three daughters sided with neither parent.

Medical evidence was tendered as to the deceased’s hallucinations, but that evidence did not establish whether the hallucinations or delusions were episodic or continuous. There was conflicting medical opinion as to whether the deceased was able to weigh claims on his testamentary bounty. The primary judge satisfied himself of the deceased’s testamentary capacity by relying on the form and apparent rationality of the 2013 will from the deceased’s perspective, coupled, among other things, with lay-evidence from the solicitors acting for the deceased in the family law proceedings and who prepared the will on the deceased’s instructions, and from the deceased’s neighbour.

The primary judge found that the deceased had the requisite capacity when he made the 2013 will. On appeal, it was asserted that the primary judge had erred in his assessment of whether the deceased held the requisite capacity to satisfy the criteria in Banks v Goodfellow (1870) LR 5 QB 549. The primary judge’s decision was impugned on the basis that he erred: (i) in focussing on the rationality of the 2013 will from the deceased’s perspective and had thereby diverted himself from the question of capacity, and (ii) in making certain factual findings relating to the evidence of a Mr Miller, the deceased’s solicitor, regarding the nature of the deceased’s instructions to him, and (iii) by giving inadequate weight to the evidence of the deceased’s hallucinations or delusions and underlying executive cognitive impairment (dementia).

The core factual finding challenged by the appellants in (ii) was that the deceased had instructed Mr Miller to leave the amount of $40,000.00 to five of his daughters in order to “fire-proof” the will against family provisions claims. The appellants submitted that this idea came at Mr Miller’s suggestion.

The Court of Appeal (Bathurst CJ, Gleeson and White JJA) dismissing the appeal, held:

Per White JA (Bathurst CJ and Gleeson JA agreeing at [1] and [2] respectively):

As to the form and rationality of the will:

1. It was not an error for the primary judge to treat the apparent rationality of the 2013 will from the deceased’s perspective as being relevant to the primary judge’s assessment of capacity, but the primary judge did not, as alleged, equate rationality of the will with capacity: [126]-[127].

Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17, referred to. Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134; In the Estate of Park [1954] P 112; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342), cited.

As to the challenges to the primary judge’s factual findings:

2. The effect of Mr Miller’s evidence was, as the primary judge found, that it was the deceased’s idea to make provision of the sum of $40,000.00, rather than Mr Miller’s: [99]-[101].

As to the evidence of delusions or hallucinations:

3. The lay evidence confirmed that the deceased’s underlying condition did not deprive him of capacity. Further, the hallucinatory or delusionary beliefs about his daughters were more probably than not episodic rather than continuous, and on the balance of probabilities the deceased did not labour under the delusions and hallucinations when he gave instructions for his will: [20], [89]-[124], [128].

Banks v Goodfellow (1870) LR 5 QB 549, applied. Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13; Worth v Clasohm (1952) 86 CLR 439 at 449; Re Griffith; Easter v Griffith (1995) 217 ALR 284; Wechsler v Du Maurier [2002] NSWCA 13; Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197, cited.

As to the deceased’s dementia:

4. Contemporaneous medical evidence was that the deceased had mild underlying cognitive impairment. The lay evidence established that he was able to weigh the claims on his testamentary bounty: [86], [128].

Judgment

1. BATHURST CJ: I agree with the orders proposed by White JA and with his Honour’s reasons

2. GLEESON JA: I agree with White JA.

3. WHITE JA: This appeal concerns the estate of Warwick Croft who died on 4 January 2016 aged 85. The appeal is from orders of the Equity Division (Lindsay J) that probate of a will dated 11 October 2013 made by Mr Croft be granted to the respondents in solemn form (Re Estates Croft, deceased [2018] NSWSC 1303).

4. The respondents, Anna and David Sanders, are the executors named in the will of 11 October 2013. The appellants, Leah and Esther Croft are named as substitute executors in an earlier will made by Mr Croft on 26 May 2008. They claim that Mr Croft lacked testamentary capacity to make his will of 11 October 2013. The primary judge rejected that contention.

5. Mr Croft’s wife, June Croft, predeceased him. Mr and Mrs Croft married in November 1953. They had six daughters, Elisabeth, Naomi, Leah, Ruth, Anna and Esther.

6. Mr and Mrs Croft ran a business called Cohoe Marine Products from premises in Newtown. The business and premises were owned by Courthouse Service Station Pty Ltd.

7. Warwick and June were the two directors and shareholders of Courthouse Service Station Pty Ltd. Warwick held two A class ordinary shares and June held one A class share. They both held 3,750 B class shares. The effect of this was that during his lifetime Warwick had management control of the company, but after his and June’s deaths, their shares ranked equally in the distribution of dividends or capital on a winding-up.

8. Warwick and June Croft jointly owned a property in Beecroft where Warwick Croft kept hundreds of pigeons which he raced. In the late 1990s June Croft moved out of the Beecroft property because she suffered from a lung condition that was caused or exacerbated by the pigeons. June Croft moved to a unit that she and Warwick jointly owned in North Ryde. Mr Croft himself developed a lung condition known as pigeon fancier’s disease.

9. On 23 December 2012 June Croft had a bad fall and was admitted to Royal North Shore Hospital. On 2 January 2013 she was discharged from hospital into the care of Leah, a registered nurse. Leah and her husband, Peter Bell, took Mrs Croft to their home at Caves Beach.

10. The primary judge found that this provided the occasion for Leah, who was long resentful of her father, to intervene to shepherd her mother to take control of her own finances. Leah paved the way for her mother through solicitors, Turnbull Hill Lawyers, effectively to declare an end to her marriage and to demand a division of matrimonial property. Warwick Croft believed that his wife continued to adhere to their marital relationship. Although they had been living separately for many years, the primary judge found that they had a stable domestic relationship. He found that each experienced a decline in mental health in or about 2012-2013 (Judgment [1]-[3]).

11. On 28 May 2013 June Croft executed a Transfer Severing Joint Tenancy in respect of the house at Beecroft and the home unit at North Ryde (Judgment [12]). Notice of the Transfer was given to Mr Croft by the Registrar General under cover of a letter dated 17 June 2013. Also on 28 May 2013 June Croft made a new will. There was no evidence as to whether Warwick Croft knew that his wife had made a new will, or, if so, knew of its terms.

12. June Croft’s earlier will of 24 June 1975 provided for Warwick to be the sole executor and beneficiary of her estate. If he did not survive her, the whole of the estate was left to all children.

13. The primary judge recorded that June’s will dated 28 May 2013 provided for June’s shares in Courthouse Service Station Pty Ltd to be given to her daughters (other than Anna) as tenants-in-common in equal shares and for the residue of her estate to be given to all six daughters as tenants-in-common in equal shares.

14. The primary judge recorded that the parties were agreed that June’s estate had an estimated value of about $1.9 million and Warwick’s estate had an estimated value of about $3.2 million. The principal difference was that Warwick had inherited shares in two private companies valued for probate purposes at about $1.25 million.

15. Warwick’s will of 26 May 2008 gave June a life estate in his shares in the two private companies with remainder to pass to their six children on June’s death. He left his shares in Courthouse Service Station Pty Ltd to his executrices with the direction that they sell the business and the Newtown land on the best terms practicable with the proceeds of sale to be divided between the six children. The residue of the estate was left to June. If June did not survive Warwick, his estate would be divided between the six children in equal shares.

16. By his will of 11 October 2013 Warwick Croft gave $40,000 to each of his five daughters, Elisabeth, Naomi, Leah, Ruth and Esther. He gave the residue of his estate to his daughter Anna. He recorded:

“6.   I have made the provision for my daughter Anna Sanders having regard to her commitment to maintain and continue to operate the business known as Cohoe Marine Products and also her support for me over many years.”

17. Anna worked part-time in her parents’ boat, motor and parts business from 1979 to 1992 and worked full-time in the business from 1992. She deposed that Warwick gradually passed on the management, administration and marketing tasks of the business to her. June stopped working in the business in about 2006.

18. Leah accused Anna of stopping payments out of the business to her mother by January 2013.

19. The primary judge found that June Croft’s will of 28 May 2013 and Warwick Croft’s will of 11 October 2013 were both valid. There is no cross-appeal from the finding that June Croft’s will was valid.

20. The appellants’ contended that Warwick Croft lacked testamentary capacity when he made his will on 11 October 2013 on two essential bases. First, the appellants said that Warwick Croft suffered from cognitive impairment in the form of dementia that meant that he was unable to weigh the respective claims of all his children on his estate. Secondly, Warwick Croft suffered from hallucinations, and, it was said, delusions, including hallucinations or delusions that, if held when his will was made, would have influenced his mind in the disposal of his property so as to bring about a disposal which he would not have been made had he been of sound mind. In this area of the law a delusion is understood to be an irrational, fixed and permanent belief out of which the person cannot be reasoned (Bull v Fulton (1942) 66 CLR 295 at 339; [1942] HCA 13; Worth v Clasohm (1952) 86 CLR 439 at 449; Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 290; Wechsler v Du Maurier [2002] NSWCA 13 at [32]).

21. The primary judge (at Judgment [59]) took the following observations of Latham CJ in Bull v Fulton (at 299) as an authoritative guide:

“... 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 (1870) LR 5 QB at 561). 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 (1873) LR 3 P&D 64; Smee v Smee (1879) 5 PD 84 at 91; Bailey v Bailey (1924) 34 CLR 558 at 570, 571). 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 of a delusion proved to exist did not affect the disposition in question.”

22. The primary judge’s summary of the legal principles was not criticised. His Honour quoted (Judgment [48]) the well-known exposition in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as follows:

“It is essential to the exercise of [a power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be 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 his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bringing about a disposal of it which, if the mind had been sound, would not have been made”.

23. The issue was whether Mr Croft was able to comprehend and appreciate the claims of all his daughters on his testamentary bounty.

24. The primary judge also cited and applied the observations of Hodgson JA (with whom Young JA and Bergin CJ in Eq agreed) in Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197 at [65] to the effect that whilst medical evidence may be highly relevant to a determination of testamentary capacity, the criteria in Banks v Goodfellow are not solely medical questions and sometimes the most compelling evidence is reliable evidence of a detailed conversation with the deceased at the time of the will that displays the deceased’s understanding of his assets and the effect of the will, and his ability to weigh claims on his testamentary bounty.

25. The hallucinations or delusions that Warwick Croft from time to time expressed were summarised by the appellants’ counsel as being that his daughters had taken his paperwork, were either running a brothel or were working in one, had kidnapped June, that Leah was possessed by demons, that recordings of June’s voice and family had been put in his house, that his keys were being moved or stolen, and that four daughters were scheming against him. Warwick said that he saw one of his daughters, Ruth, running down a fence. There was other evidence of Warwick’s having bizarre thoughts. Between 2011 and early 2013 Elisabeth, Ruth and Esther all said that Warwick reported having seen a black panther, either in his yard or in the street. Elisabeth and Ruth said that Warwick reported seeing huge owls as big as a small person sitting in a tree in the front yard. Elisabeth and Esther said that Warwick told them he believed that his bank had given him $100,000, either because he had been a good customer or because his father had been.

26. The fact that Warwick Croft held such beliefs, at least from time to time, did not depend only upon the evidence of his daughters. It was corroborated by the records of the medical practice which Mr Croft attended.

27. The primary judge found that from time to time Mr Croft was prone to hallucinations about prostitutes, brothels and other things remote from reality (Judgment [98]). He found that Warwick had a propensity “to descend to gutter talk about his wife and adversarial daughters” (Judgment [102]).

28. Expert evidence was given at trial by a consultant clinical neuropsychologist, Dr Jane Lonie, and a consultant geriatrician and physician, Associate Professor Tuly Rosenfeld. Neither had attended on Mr Croft during his life. They agreed that Mr Croft suffered from a dementing illness and that this may have been associated with Vascular Brain Disease. They were agreed that other forms of dementia may have been present, either Lewy Body Disease or Alzheimers Disease. They agreed that Mr Croft suffered psychotic symptoms from late 2012 onwards, and they agreed that there was likely to be a variability in his cognitive ability at various times.

29. Dr Lonie considered that the presence of psychotic symptoms at the end of 2012 was indicative of underlying dementia. Dr Lonie said that the effects of steroid medication that Mr Croft took for his bird-fanciers disease had the potential to exacerbate memory impairment and psychotic symptoms. She considered that the medical evidence suggested that significant cognitive impairment was present during the course of 2013 that was independent of Mr Croft’s psychotic symptoms.

30. Professor Rosenfeld considered that the presence of psychotic symptoms was associated with the use of steroid medications rather than being an indication of the extent of cognitive impairment and that the effect of medication such as steroids, superimposed on even mild underlying brain disease or impairment may be very great and was a likely explanation for symptoms from which Mr Croft suffered.

31. Dr Lonie and Professor Rosenfeld were both critical of a diagnosis of Mr Croft made by a psychiatrist, Dr Howpage, on 18 November 2013 that he was presenting with late onset schizophrenia type illnesses that had been precipitated by family disputes. Both Dr Lonie and Professor Rosenfeld considered that the diagnosis of schizophrenia was wrong. Dr Howpage otherwise assessed Mr Croft as having mild cognitive impairment. Dr Lonie took issue with this assessment. Dr Howpage prescribed psychotic medication that both Dr Lonie and Professor Rosenfeld considered could have exacerbated the occurrence of hallucinations or delusions if the medication were taken.

23. Dr Lonie considered that Mr Croft would not have been able to formulate and retain an accurate account of the actions and involvement or lack of involvement of his respective family members with himself or with regard to the dispute arising from threatened and later commenced family law proceedings brought by his wife. She considered that he would not have been able to appraise his potential heirs in a way he would have done had he not suffered from persecutory delusions regarding his family and had his cognition not been impaired through dementia. She said that the combined cognitive effects of dementia and persecutory delusions would have had the effect of eroding his capacity to judge and to appraise the relationships in the context of the past and present, and to retrieve meaningful relationships, but was prone to making shallow or superficial judgments about his family members.

24. Professor Rosenfeld disagreed. He considered that Mr Croft’s reasoning was intact and there was no evidence to indicate that his memories and recollections of his family and relationships were not considered. He said that in the context of Mr Croft’s knowledge and experience of events in 2013, his decision-making about the need to protect his estate and the role of his daughter Anna in assisting him with the divorce proceedings which were his main focus, it was probable that he was able to determine and properly reason and make decisions about the distribution of his estate between his daughters. Professor Rosenfeld considered that Mr Croft’s wish to protect his estate and his daughter’s interest in the business was likely to have been Mr Croft’s main focus and that he had intact reasoning capacity to make the decisions that he did.

25. The primary judge dealt with the evidence of Dr Lonie and Professor Rosenfeld shortly. He said:

“118    The forensic medicine, without the benefit of clinical examination of Warwick, is inconclusive. It directs attention back: (a) to the lay evidence of those (including his solicitors) who deposed to regular, rational, measured dealings with Warwick; (b) to the form and content of Warwick's will; and (c) to the measured and reasoned character of the will as a response to the facts objectively observable from Warwick's perspective.

119    Satisfied that there are factual explanations sufficient to counterbalance concerns about Warwick's hallucinations and occasional wild talk, I am comfortably satisfied in acceptance of the evidence of lay and legal witnesses that Warwick had sufficient capacity to execute his will.”

35. The primary judge earlier explained his finding that Warwick had testamentary capacity as follows:

“95   The form of the will; the manner of its preparation and execution; the measured rationality of its provisions from Warwick’s perspective; Mr Miller's personal familiarity with Warwick over an extended period of time; Ms Po's familiarity with Warwick during the course of preparation of his Family Court affidavit; and the evidence of Warwick's brother-in-law Darrell Stephenson of regularity in Warwick's behaviour all point in the direction of a finding of testamentary capacity.

96    I accept the evidence of Messrs Miller and Stephenson and Ms Po that Warwick presented himself to them as rational, without the aberrant behaviour observed by others, including counsel retained to act for Warwick in the unfolding family law disputation.

97    Warwick's will is a rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so.

98    I accept that Warwick's mental health deteriorated from about mid-2012 and that, between that time and when he ·made his will, he, from time to time, was prone to hallucinations about prostitutes, brothels and other things remote from his reality. ...”

36. The primary judge then referred to evidence given by Naomi of a telephone conversation on 30 January 2013 in which Warwick accused her siblings of being “sluts, whores and prostitutes” and accused June of sending prostitutes to knock on his door and ring his doorbell. His Honour continued:

“100    Naomi's evidence is that Warwick's wild talk on this occasion was totally out of character for the man she knew as her father.

101    However: (a) Naomi's account of the conversation makes it plain that Warwick's allegations against June and his daughters were closely related to his complaint that his daughters had taken June away without consultation with him, and without making arrangements for him to be involved in caring for her; (b) Naomi deposed to having had no subsequent conversation with Warwick in which he used foul language of the type she encountered in their telephone conversation; and (c) unbeknown to Naomi, at the time of their telephone conversation Warwick had not long received the letter dated 25 January 2013 of Turnbull Hill Lawyers confronting him with their distressing allegation that there had been ‘an irreconcilable breakdown’ in his marriage.

102    Warwick's propensity to descend to gutter talk about his wife and adversarial daughters appears, at least in part, to have been a function of emotional stress associated with what appeared to him (not without grounds in objective reality) to be a threat to his domestic tranquillity orchestrated by Leah.

103    The evidence of Warwick's brother-in-law, Darrell Stephenson, is important in establishing a different perspective of Warwick than that which (without critical information about the nature and depth of what Warwick was suffering) Naomi experienced in her dramatic telephone conversation with her father.”

37. After referring to the evidence of Mr Stephenson and the affidavit prepared for the Family Court proceedings the primary judge concluded:

“108   ... The form and content of the affidavit is overwhelmingly inconsistent with any blanket attribution of incapacity to Warwick.

109    In the end, the lay evidence and the form and content of Warwick's Will provide confirmation that he possessed the requisite capacity to make his will.”

38. The lay evidence to which the primary judge referred and which he found persuasive was principally that of Mr Miller of Hunt & Hunt who took instructions for Mr Croft’s will, Ms Cheryl Po, who was employed by Hunt & Hunt from 29 July 2013 as a family law solicitor and acted for Mr Croft in his family law dispute with his wife, and Mr Darrell Stephenson who had been a friend of both Mr and Mrs Croft. I refer to that evidence below (at [94]-[121]).

39. The appellants submitted that the primary judge was satisfied that Warwick had testamentary capacity because of:

1. the form of the will, including the manner of its preparation and execution;

2. the rationality of the provisions of the will from Warwick’s perspective; and

3. the “familiarity” of Mr Miller, Ms Po and Mr Stephenson with Warwick.

40. The appellants submitted that the primary judge erred in relying on these matters as demonstrating Mr Croft’s testamentary capacity because:

1. he failed to have regard to the effect of the hallucinations or delusions on the testamentary dispositions and failed to have regard to Mr Croft’s underlying executive cognitive deficit, and in particular, his alleged inability to weigh up the effect of those dispositions;

2. the primary judge gave primacy to the form and apparent rationality of the will from Mr Croft’s perspective, rather than determining whether the deceased had the capacity to weigh the claims on his estate; and

3. the fact that Mr Miller, Ms Po and Mr Stephenson were “familiar” with Mr Croft and did not have doubts about his capacity could not resolve the issue because others who were also “familiar” with him observed aberrant behaviour or had concerns about his capacity.

41. The appellants also submitted that the primary judge failed to consider and deal with evidence that undermined the evidence on which the primary judge relied to find capacity and erred in his view that the 2013 will was rational in respect of all of Mr Croft’s daughters when three of his daughters had not taken sides in the family law proceeding. The appellants submitted that Mr Croft suffered delusions about all of his daughters and the respondents had not shown (the onus being on them to do so) that the delusions had not influenced his testamentary disposition.

42. Although the primary judge accepted the evidence of Mr Miller, Ms Po and Mr Stephenson that “Warwick presented himself to them as rational, without the aberrant behaviour observed by others ...” (Judgment [96]), that was not the critical aspect of the primary judge’s reliance on the evidence of Mr Miller and Ms Po. The appellants’ submission as to the bases upon which the primary judge was satisfied as to Mr Croft’s testamentary capacity omits his finding (at Judgment [108]) that the form and content of Mr Croft’s affidavit in the family law proceedings (and inferentially Ms Po’s evidence as to her instructions for the preparation of that affidavit) were inconsistent with any “blanket” attribution of incapacity to Mr Croft: that is, were inconsistent with the appellants’ case that Mr Croft had an underlying cognitive impairment that precluded his assessing the competing claims on his testamentary bounty, irrespective of whether, when he gave instructions for the will (or when the will was executed), his judgment was impaired by delusional or hallucinatory beliefs.

Hallucinations or delusions and contemporaneous medical evidence

43. I will first summarise the lay evidence as to hallucinations or delusions to which Mr Croft was subject and the contemporaneous medical evidence bearing on his testamentary capacity.

44. Elisabeth deposed that after Mr Croft had had a heart bypass operation in May 2010 he often told her in the course of telephone calls that a black panther had been visiting the backyard and that huge owls had been sitting in the tree in the front garden. Ruth deposed that in about 2010 or 2011 Mr Croft started to talk to her about a black panther in the street and a big owl that sat in a tree that was as big as a small person. Elisabeth also deposed that one day in 2012 when she was visiting her father he said that there were prostitutes who came down the street ringing bells in the middle of the night and sometimes were dropped off by a big black car. She deposed that on another occasion in 2012 her father telephoned her and told her that the bank had given him more than $100,000 for being a good customer.

45. Anna said that her father referred to Jehovas’ Witnesses as “prostitutes” and they would not infrequently ring his doorbell which annoyed him. She did not venture any explanation as to why Mr Croft referred to Jehovas’ Witnesses as prostitutes. In any event there is no rational explanation as to why Mr Croft might have told Elisabeth that prostitutes were coming down the street ringing bells in the middle of the night.

46. Ruth deposed that in 2012 her father asked her “Do you work in your mother’s brothel?”, and on another occasion “Did you send that prostitute around here? She was knocking on the door and ringing bells at midnight.”

47. The primary judge found that all of the witnesses gave evidence honestly and to the best of their ability, but approached all of the evidence with caution because all of the children and members of their extended family may have been affected in giving their evidence subconsciously by the family feud (Judgment [74]). He found that Anna, her husband and daughter, Leah, her husband, and Elisabeth, were “... perhaps too close to events to be wholly objective.” (Judgment [75]). His Honour found that Mr Stephenson, Naomi, Ruth and Esther were “... more measured in the evidence they gave.” His Honour did not reject Elisabeth’s and Ruth’s evidence. Rather, it appears that he accepted that evidence in his later references to Mr Croft’s “aberrant behaviour”.

48. Leah also gave evidence that her father said to her in 2012 that he sometimes heard a bell ring and that this meant that prostitutes were coming around to see him and that Westpac had given him over $100,000 because of the help that his father had given to Westpac. She deposed that during 2012 her father told her that somebody had been coming around to the house and moving things. He asked her whether she had sent the prostitutes.

49. Esther deposed that in 2012 or early 2013 her father made statements to the same effect that he heard bells ringing at the front door and when he opened it he found that somebody had sent prostitutes to the house. He told Esther that he thought her mother might have sent them. He also told Esther of having seen a black panther.

50. After June was discharged from hospital into Leah’s care, Warwick accused Leah of stealing June from him, saying “You have taken her away from me so that I cannot visit her.” Although this was an exaggeration, it was not evidence of a failing mind or of a delusional hallucination for the reasons at [112]–[118] below.

51. The same is true of a telephone call which Elisabeth deposed took place on 24 February 2013 when Warwick accused Leah and her husband, Peter, of controlling June and not letting him see her without one of them present.

52. Naomi deposed to having a telephone conversation with Mr Croft on 30 January 2013 in which he said that “Your sisters are all sluts, whores and prostitutes. They have taken your mother away and I don’t know where she is or how she is.” She deposed that Mr Croft said “I expect you to go along with Anna and me in relation to how Mum’s care should be organised. If you don’t I will not leave you anything in my will. ...” She deposed that her father told her that he did not need to give his wife any money and that “She is operating a brothel and banking $5,000 a month from the business.” She also deposed that her father said “Prostitutes have been coming around the street late at night knocking on my door and ringing the doorbell. ... I think that your mother is sending them around”, and that “my bank has given me more than $100,000 because of my father. My father was a wonderful client of the bank’s and the money was a gift in recognition of that.”

53. The primary judge addressed this evidence at Judgment [100]-[101] (quoted at [36] above).

54. At an unspecified time in 2013 Esther had a conversation with her father in which Warwick accused her of being on her mother’s side and of being as bad as the others. He said “You have all brought this court case against me.” Esther replied “Dad. I have never had a court case against you. This case is between you and Mum.”

55. Mr Croft’s regular general practitioner was a Dr Tracy of the Beecroft Family Practice. On 27 February 2013 she signed a referral of Mr Croft to see a Dr Sharp for opinion and management. She stated that Warwick Croft was taking 7.5mg of Prednisone (a steroid) daily and that some mild paranoia was developing. She referred to a plan to reduce the dose of Prednisone to 5mg once he was established on another drug.

56. A file note of the Beecroft Family Practice that is undated but pre-dates 9 March 2013, records that Mr Croft advised that he had lost all his paperwork and “thinks his daughters have taken it all”.

57. Another file note, apparently pre-dating 13 March 2013, stated that Mr Croft felt down because of his wife, although not all of the time. He sometimes got teary. When asked whether his wife was still in hospital he responded “I think she has left me. My younger daughter kidnapped her and took her off.” In regards to Leah he is recorded as having stated “I’m wondering if she’s possessed by demons. She gave me a screaming match.” He reported that he felt that his daughters were against him.

58. In a consultation with Dr Tracy on 20 March 2013 she recorded that Mr Croft had come in that day by mistake. That record contained a note stating:

“Says he is hearing voice of his wife – had an explanation that he thinks the family is putting recordings in the house. Says that they move/steal his keys etc.”

59. Dr Tracy recorded having had another discussion with Elisabeth as to the dilemma of trying to keep him safe and referred to uncertainty as to his mental capability.

60. On that day Dr Tracy sent a message to another doctor saying that she was:

“... a hair’s breadth from admitting him somewhere but I would have to schedule him – he did say he is hearing voices but on checking the house and not finding anyone there he rationally deducted he was hearing things.”

61. This comment is consistent with Mr Croft’s having suffered hallucinations rather than delusions in that he was able to rationalise that he was hearing things. Other such hallucinations recorded at the time in the notes of the Beecroft Family Practice were that Mr Croft thought that Leah was:

“behind putting little phones in his house ‘they’re trying to make out that I’m demented’ in regards to daughters

Talking about witches

No 4 daughter could be responsible for carrying it out

Voices – ‘they’re very real’

No imagination, they’re doing it somehow

Of his wife: she’s virtually in prison, I can’t take her anywhere.”

62. It is not suggested that the last comment was hallucinatory or delusional, although it is presumably exaggerated.

63. Mr Croft’s “No 4 daughter” was Ruth. Ruth did not have any involvement in the Family Court proceedings between her parents.

64. Mr Croft was administered a Mini Mental State Examination on about 20 March 2013. He had a score of 26 (out of 30 or 31) and it was recorded that the result indicated that there was no significant cognitive impairment. A Mini Mental State Examination is a screening tool. A doctor, perhaps Dr Tracy, expressed concern that his cognition or mathematical skills might have been tested in preparation for the test. Dr Lonie considered that the score was at the lower boundary of normal limits for a man of Mr Croft’s age and educational background.

65. A note of the practice that is undated, but in sequence, appears to be about 23 March 2013 records “States four daughters are scheming against him, hoping to get inheritance money when he goes. Daughters prohibits [sic] him from seeing wife.” No conclusion can be drawn from this file note as to whether Mr Croft stated that his daughters prohibited him from seeing his wife, or whether he said that one of his daughters prohibited him from seeing his wife.

66. File notes of the practice at about 27 March 2013 note that Mr Croft was supposed still to be taking Prednisone, but was confused about what medication had been stopped. One of the doctors at the practice recorded that “He really seems with it despite some of his bizarre stories re daughters?!?”.

67. A file note in late March or early April 2013 of the practice states that Mr Croft reported that he had had another episode where he thought someone was in the house. He said that the towels were wet in his bathroom, that this was proof that one of his daughters had been in the house. He reported that he was convinced that they were running a brothel. It was noted that his dose of Prednisone was reduced from 7.5mg to 5mg per day.

68. The next file note which is undated, records the doctor’s note that Mr Croft had noticed fewer hallucinations in the past week and had also said that “he had a reason for the prostitutes visiting him, namely that they were going to a neighbour’s house (!).” The exclamation mark is that of the doctor. A note at apparently the same time records that Anna corroborated that Warwick was not his usual self and was more paranoid.

69. Another note, also undated but apparently at about the same time, records that Mr Croft was due to see a new psychiatrist in the next week with Anna. It records that he was “fixed on idea that he’s not seeing nor imagining things”. He stated that Anna was the only daughter on his side.

70. A belief that Anna was the only daughter on his side was not hallucinatory, nor delusional, nor even incorrect. His daughters other than Anna were either aligned with their mother in his family law dispute or did not take sides.

62. On 5 April 2013 Dr Tracy referred Mr Croft to Dr Jaspreet Singh, a psychiatrist, for opinion and management. She stated that:

“Warwick has become increasingly confused over the past few months and is having some auditory and visual hallucinations. He has some insight into these after he checks the room etc. He has had locks changed etc. Warwick has Bird Fancier’s Lung ... . He was started on Prednisone late last year to control the symptoms as he refuses to stop tending his 400 or so pigeons. His mental state definitely declined and has been fluctuating since this was commenced.

... He has a large family with six daughters, however there are some family issues. Warwick lives apart from his wife who also has the same lung condition, but left the family home due to the birds. He gets on well with his daughter Anna who is now giving a hand in determining the cause of his paranoia/hallucinations.”

72. Dr Singh reported to Dr Tracy on 22 April 2013. He recorded that he saw Mr Croft on 9 April and had a follow-up visit with him on 16 April 2013. He reported that Anna was present on both visits.

73. Dr Singh did not report any significant underlying cognitive impairment, other than hallucinations, or delusions. He said there was no sign of memory disturbance and that Mr Croft’s functioning seems to have been unaffected, except for his physical problems. He reported that Mr Croft was preoccupied with recent family affairs and “? Auditory and visual hallucinations.” He reported that there were no overt cognitive deficits. He reported that Mr Croft was:

“... likely to be suffering from transient psychotic symptoms in the background of stress and use of steroid for his pulmonary condition. He seems to be managing well despite these and is quite willing to engage and discuss his concerns. Any reduction in his Prednisone will be welcome if possible.”

74. Dr Singh’s opinion of 22 April 2013 is not consistent with Dr Lonie’s view that Mr Croft had an underlying significant cognitive impairment due to dementia that itself would indicate a lack of testamentary capacity. Dr Lonie was critical of Dr Singh’s conclusion that Mr Croft displayed no overt cognitive deficits. In oral evidence she said that she did not believe that Dr Singh made an adequate assessment of Mr Croft’s cognitive function. But as Dr Singh was not called and only his report to Dr Tracy was available to the court and to Dr Lonie, this opinion was speculative.

75. A file note of Stephanie Lee of Hunt & Hunt of 11 April 2013 records matters that gave her concern that she later expressed about Mr Croft’s capacity. As later stated in a letter of 2 May 2013 Ms Lee recorded that Mr Croft told her that he thought Leah owned a brothel and that he was having visits from strange people. She also recorded that in a discussion about Mr Croft’s will, Mr Croft told her that Anna had supported him when he felt ill and that he would like Anna to have more than other daughters. This is consistent with the instructions Mr Croft later gave to Mr Miller.

76. The records of the Beecroft Family Practice include another undated file note that the appellants suggest was made in about April 2013. This file note recorded the result of another Mini Mental State Examination in which Mr Croft scored 25. The doctor who administered the test said that the test had been marked hard. She said that the score of 25 indicated that no significant cognitive impairment had been identified. This is consistent with Dr Singh’s opinion, but must be taken subject to the limitations of the Mini Mental State Examination as a tool for assessment of cognitive impairment.

77. Ms Lee of Hunt & Hunt spoke with Mr Croft on 15 April 2013. Her file note records that she thought that Warwick was paranoid in thinking that Leah would empty the bank account. She recorded her instruction from Mr Croft that he had seen Ruth running down the fence.

78. On 14 May 2013 Anna reported to Ms Lee that she had called her mother on Sunday who had told her that she did not understand why Warwick had not called her. Anna reported that she told her mother that no-one passed on messages to her that Warwick had called her and that at other times the phone had not been answered.

79. Esther gave evidence of a visit to her father to the house at Beecroft in June or July 2013. She said that after the normal pleasantries:

“...he [was] all excited and wanted to take me down to Ruth and Anna's old bedroom because he wanted to introduce me to the possum and sleeping in the double bed that was in Ruth and Anna's old bedroom, which had beautiful clean sheets, was a possum, which was really quite confronting and in stark contrast to his own bed in his bedroom which was, I don't even - you know, it wasn't in a very good condition.”

80. This was an hallucination consistent with the taking of Prednisone. On 19 July 2013 Dr Tracy referred Mr Croft to a Dr Craig Donaldson for opinion and management, noting that the Prednisone had caused some secondary visual and auditory hallucinations. She reported that these were improving as the Prednisone dose had dropped.

81. On 2 August 2013 the Beecroft Pharmacy sent an email to Dr Tracy expressing concern that Mr Croft was not adhering to his medication regime. They stated that Mr Croft had reported that he had three unused Websterpaks at his home. However, on 30 September 2013 a pharmacist to whom Mr Croft had been referred by Dr Tracy for a Home Medicines Review, reported that Mr Croft was compliant with his medications and was taking them correctly.

82. Dr Tracy, who was not called to give evidence, evidently had continuing concerns about Mr Croft’s capacity. On 8 November 2013 she recorded in her file note that he was disoriented as to the day’s precise date, although he knew it was November. He was confused about his medications. He was perseverating about his family and was saying that they were changing his locks and that his family was running a brothel.

83. Dr Tracy referred Mr Croft to another psychiatrist, Dr Padmini Howpage. He attended on Dr Howpage on 18 November 2013. She described Mr Croft’s delusions as follows:

“For more than 6 months Warwick is having an abnormal belief system about a conspiracy involving his ex-wife. Family is divided over the finances. Warwick’s wife left him and lives with one of his daughters [at the] Central Coast. His the [sic] other daughter Anna who lives in Sydney looks after Warwick. Anna and her sister [do] not talk to each other and both have separate loyalty to the individual parent whom they [are] associated with. At present there is a court case about property settlement. Warwick harbours resentment and anger towards his ex-wife. In this background Warwick is developing persecutory beliefs. He believes that his ex-wife amassed millions of dollars through illegal activities. He believes that his ex-wife is sending intruders to watch him. He hears them knocking on his doors/windows. He called the police. He is actively engaged with his lawyers about these abnormal beliefs. He has also changed the locks of his house at least on 2 occasions.”

She reported:

“On mental state examination Warwick presented as a pleasant, engaging gentle man with no insight about his predicament. He reported normal mood and he had reactive affect. He was preoccupied with well systematised delusional system involving his ex-wife. He has expressed delusional beliefs described above. He admitted auditory hallucinations ‘people knocking on his windows’. He did not wish to settle the property and finances but was more keen on prosecuting his ex-wife about perceived wrong doings. He denied self harm thoughts. He has no contact with his ex-wife. He did not have any insight and he refused to accept any medications.

Opinion

This elderly gentleman is presenting with late onset Schizophrenia type illnesse[s] precipitated by ongoing family disputes in the background. In addition he has mild cognitive impairment and this needs assessment when he improves from the current psychotic episode.”

84. As noted above, neither Dr Lonie nor Professor Rosenfeld considered that there was any basis for the diagnosis of late onset Schizophrenia. They were agreed that the medication prescribed by Dr Howpage would have been deleterious. There was a dispute between the doctors as to whether it could be inferred that Mr Croft took the medication prescribed. On 16 January 2014 he was involuntarily admitted to the Mental Health Unit at Hornsby Hospital. No reliance was placed on appeal on the medical evidence as to his later cognitive decline.

85. The effect of this evidence is that Mr Croft suffered continuing delusions or hallucinations, some of which would be irrelevant to his testamentary decision-making (e.g. seeing black panthers and owls the size of small persons). Other hallucinations or delusions would affect his testamentary capacity if held when giving instructions for his will, such as a belief that his daughters were prostitutes or were sending prostitutes to harass him. His belief that all his daughters except Anna had sided against him in the family law dispute, was not delusional, even though it was mistaken. Only Anna had sided with him.

86. The medical evidence does not establish that Mr Croft’s underlying cognitive impairment (viz. dementia of some kind) was such as to deprive him of the ability to weigh claims on his testamentary bounty. Neither Dr Singh nor Dr Howpage, who saw Mr Croft in 2013, considered that he had more than mild cognitive impairment. The primary judge correctly had regard to the lay evidence in making his determination. That evidence was relevant both in assessing Mr Croft’s underlying cognition and in determining whether the respondents had established (the onus being on them to do so) that Mr Croft did not labour under hallucinatory or delusional beliefs concerning his daughters when he made his will.

87. There was no direct medical evidence as to whether those beliefs were probably episodic or continuous. Dr Lonie was asked in cross-examination whether she agreed that a person suffering from psychosis would not appear rational, and conversely that a person who was able to engage in some high level rational thought would not be suffering from psychosis. She said:

“Well I, I think it would depend on what they were being asked, how they were being investigated. So I think that it would be possible for a person to have a belief that wasn't based in reality, but if a topic of conversation didn't touch on that, it wouldn't necessarily be apparent.”

88. The corollary would appear to be that if a person holding a belief not based on reality was asked about a topic that touched on that belief, the holding of that irrational belief would probably become apparent.

Evidence of solicitors and Mr Stephenson

89. On 3 January 2013 Leah retained Turnbull Hill to act for June.

90. Warwick complained that he was prevented from talking to or meeting June. Warwick consulted his solicitor, Mr Ian Miller of Hunt & Hunt. On 17 January 2013 Mr Miller wrote to Leah Bell stating that he was instructed that she had arranged for Mrs Croft to stay with her following her release from hospital and that this arrangement had occurred without consultation with Mr Croft. Mr Miller wrote:

“As you are aware Mr Croft and Mrs Croft have been married for over 50 years and Mr Croft has been regularly seeing his wife (up to 7 days per week) at their property at Wicks Road, North Ryde.

Mr Croft has been seeking to see his wife but, we are instructed, that you have not permitted such access to take place. Mr Croft wishes to see Mrs Croft and to be actively involved in caring for her as her husband.

We are also advised that a person has been using the property at Wicks Road, North Ryde without the consent of Mr Croft.

We now seek your advice as to:

1.   What arrangements can be put into place forthwith to enable Mr Croft to see his wife?

2.   What arrangements are to be made to consult with Mr Croft concerning the ongoing care for Mrs Croft?

3.   Your advice as to who may be staying at the property at North Ryde and at what basis, given that the phone is being used and other charges are probably being created by such use.

We request a reply within the next 7 days.”

91. Leah provided this letter to Turnbull Hill with a note “For your information only. No action required. Leah.”

92. On 25 January Turnbull Hill Lawyers wrote to Mr Croft stating that they were instructed by Mrs Croft that there had been an irreconcilable breakdown of the relationship between him and her. They advised that Mrs Croft wished to settle the matter amicably and without the need for litigation, but for that to be done, full and frank disclosure of the parties’ financial assets and needs had to be made. They asked Mr Croft to provide financial information including a valuation of the company Courthouse Service Station Pty Ltd trading as Cohoe Mariners together with financial statements and other documents and specific details of Mr Croft’s assets and of any liabilities.

93. On 4 February 2013 Hunt & Hunt replied to Turnbull Hill Lawyers’ letter of 25 January 2013 advising that they were obtaining instructions to respond in greater detail to Turnbull Hill’s letter, and inviting Turnbull Hill Lawyers to obtain a medical certificate as to June Croft’s capacity.

94. Mr Miller was an experienced solicitor who estimated that he had taken instructions and prepared over 2,000 wills as a solicitor. He deposed that it was his practice that if he had any doubt as to the capacity of a client to make a will, whether by reason of dementia or other medical treatment, he required a letter from the person’s treating doctor or a medical practitioner who had conducted an appropriate examination as to the client’s capacity to give instructions. He had no such doubt in relation to Mr Croft’s capacity to make the 2013 will. Mr Croft was a previous client. Mr Miller also knew him because Mr Croft from time to time attended an evening service at the Anglican Church in Beecroft at which Mr Miller was a parishioner.

95. Mr Miller did not have personal carriage of Mr Croft’s family law proceeding. He received a telephone call from Mr Croft on or about 20 June 2013 when Mr Croft told him that family law proceedings with his wife looked like starting and he wished to review his will. At Mr Croft’s request he sent Mr Croft a copy of his 2008 will. He had a number of telephone discussions with Mr Croft concerning the progress of the family law matter in September 2013. On 2 October 2013 he met with Mr Croft and took instructions in relation both to the preparation of the will and the making of an enduring power of attorney and appointment of an enduring guardian in the event of incapacity.

96. Mr Miller gave the following evidence of Mr Croft’s instructions for his will:

“21.   From my review of the handwritten notes made on 2 October 2013, I recall that Mr Croft gave me instructions for the preparation of a new Will as follows:

(a)   Mr Croft said to me – ‘As the family law proceedings have been commenced by my wife June I do not wish to make any provision for her in my new Will’.

(b)   Mr Croft said to me – ‘As June has severed the joint tenancies she will have a half share of each of the properties at North Ryde and Beecroft and I will only be able to dispose of my half share in each of those properties’.

(c)   Mr Croft said to me – ‘Apart from my daughter Anna (Sanders), my other daughters are supporting my wife June in her family law proceedings against me’.

(d)   Mr Croft said to me – ‘Anna has supported me and has continued to work in the business of Cohoe Marine at Newtown. After June left the business in around 2006, Anna carried on there and when I retired from the business after open heart surgery in 2009, Anna took responsibility for the management of the business. I think it is appropriate that the business should go to Anna and I want to give her my shares in Courthouse and the business.’

(e)   In discussing his shares in Courthouse, Mr Croft said to me – ‘I have a 50% share, plus 2 out of the 3 management shares in Courthouse and this would help Anna retain the business and the property which is owned by Courthouse. I do not think that June will leave any of her shares in the company to Anna and she would rather give them to our other daughters’.

(f)   I asked Mr Croft – ‘What is the financial position of Cohoe Marine?’ He said – ‘The value of the business is solely in its stock which I estimate to be at $130,000. The tax returns for the last five years are still being prepared by there have been no dividends or interest paid. A small salary has been drawn by Anna, but no other income has been derived from that company.’

(g)   Mr Croft said to me – ‘Anna and her family have provided significant support to me over a long time and especially since the family court matter has been commenced. Over the years, Anna would regularly visit my home and has supported me in the care of my racing pigeons. I have a good relationship with Anna’s daughter Rebecca and she would also come and visit me.’

(h)   I asked Mr Croft – ‘What about your other assets?’ Mr Croft said to me – ‘I receive a dividend from Fassifern Colliery Pty Ltd each year and I usually attend the annual general meetings of that company and Croft Brothers Pty Ltd. It is very difficult to put a value on the shares because they are private companies and the market for the shares is very limited. As for the shares in Croft Brothers, because I have so few shares in that company, they would be of little value.’ He said – ‘I want to give Anna my shares in Fassifern Colliery Pty Ltd and Croft Brothers Pty Ltd. These have been given to me by my parents and I want to make sure that they remain with Anna rather than being split up amongst other members of the family.’

(i)   I asked Mr Croft – ‘Do you have any other assets?’ He said – ‘I have a significant amount of money in cash deposits with the bank, over $200,000.’ I asked Mr Croft – ‘Do you wish to make some provision for your other children, apart from Anna Sanders?’ He said – ‘I think June will make provision for them but I am concerned that there could be a claim made by my other 5 daughters which will account for $200,000 of cash which will remain in my estate and I will leave the residue of my estate to Anna (Sanders).’

(j)   Mr Croft said to me – ‘I am extremely appreciative of Anna’s support, as well as her husband’s support and her daughter’s support of me over many years. I wish to have this recorded in my Will as part of the reason for making provision for Anna, as well as her devotion to the business of Cohoe Marine. I am concerned that Anna will not receive any significant benefit from June’s Will.’

(k)   Mr Croft said to me – ‘I want to appoint Anna Sanders and her husband David John Sanders as executors of my Will.’”

97. Mr Miller gave the following evidence, which was admitted over objection as a statement of Mr Miller’s observations and what he “sensed that he saw”:

“Although I knew Mr Croft to be over 80 years old, he did not appear to me to be infirmed and I did not have any reasons to doubt his testamentary capacity, in the circumstances which I have described above and for the reasons that follow. It was Mr Croft who contacted me, expressing a desire to make a new Will as a result of his changed matrimonial circumstances. He had a clear understanding which he expressed to me of the need and the nature of the act of making a new Will in his changed circumstances. In the course of giving me instructions for his Will, he displayed to me clarity of mind in relation to his financial circumstances, the extent of the assets in his estate and the business of Cohoe Marine which he had conducted as controlling director. He also paid particular significance to the consequences of the severance of the joint tenancies by his wife of the real property that he had formerly owned together with her as joint tenant. It appeared to me he had a clear understanding of the extent of his estate and the nature of the property, which he wished to dispose of under his Will. He also showed a keen appreciation of the claims that may be able to be made against his bounty by each of his six daughters and weighed that up against his desire to leave the greater part of his bounty to his daughter Anna Sanders who had supported him over many years and who had worked with him in the business of Cohoe Marine.”

98. The primary judge accepted Mr Miller’s evidence, including his evidence that Mr Croft said that he would leave $40,000 to each of his other five daughters and was concerned that there could be a claim made by his other children against the estate if he failed to make provision for them. The primary judge found (Judgment [70]) that Warwick’s will was “rationally responsive to personal experience of ‘family’ in 2012/2013 (Warwick favouring Anna ...), yet not biased to the extent of excluding the less favoured daughters (Anna’s ... sisters in the case of Warwick).”

99. The appellants challenged this finding. They submitted that the primary judge ought to have found that the provision of $40,000 to each of Warwick’s daughters was included in the will because Mr Miller advised Mr Croft to include some provision for his other five daughters in an attempt to “fireproof” his will from a family provision claim from those daughters.

100. This submission was based upon evidence Mr Miller gave in cross-examination in which Mr Miller accepted that making provision to prevent a claim by the other children against Mr Croft’s estate would have been a matter that Mr Miller had raised with Mr Croft. Mr Miller was asked:

“Q.   Because what happened was, he didn’t want to give them anything, did he?

A.   Well, I had a discussion with him about that. I certainly advised him that it would be appropriate to make a provision for his daughters, yes.”

101. Mr Miller did not accept that Mr Croft’s initial position was that Mr Croft did not want to make any provision for his daughters other than Anna. The effect of his evidence when read with his cross-examination is that Mr Croft wanted to leave $40,000 to each of his other daughters because he was concerned that a claim might be made against his estate if no provision were made for them, that that was a subject that was discussed between him and Mr Miller, and Mr Miller advised that it would be appropriate to make provision for his daughters, having regard to the potential for claims for a family provision order. It was never put to Mr Miller that contrary to his affidavit it was Mr Miller who first raised the prospect of a potential claim by other children against the estate. Nor was there any evidence that it was Mr Miller, and not Mr Croft, who suggested the figure of $40,000 for each of the other daughters.

102. The appellants submitted that the primary judge ought to have found that Mr Miller was not observant of matters affecting Mr Croft’s capacity.

103. Mr Miller said in oral evidence that he had never heard Warwick say that Ruth had been running down the fence and nor did Warwick tell him that there had been damage to his door locks. He said that nobody else had told him that Warwick had mentioned visits from strange people or damaged door locks or Ruth running down the fence.

104. Mr Miller signed a letter prepared by a senior associate with Hunt & Hunt, Stephanie Lee, who acted for Mr Croft on the family law matter. The letter is dated 2 May 2013. In that letter Hunt & Hunt recorded Mr Croft’s instructions that the front and back door locks to the Beecroft home had been damaged for which $500 had been paid for repairs, that on a previous occasion he saw Ruth running down the side fence of the home, he had had police attend the home and regretted allowing the police to take fingerprints, and he had also had unknown female persons knocking on the front door at odd hours of the day. When cross-examined on this letter Mr Miller said it had been prepared by Ms Lee and he just scanned it. He did not discuss those matters with Ms Lee.

105. The appellants submitted that Mr Miller gained comfort in his own assessment of Mr Croft’s capacity from the fact that Warwick had given instructions to others in his firm in relation to family law matters. File notes of Stephanie Lee contained comments suggestive of Mr Croft’s suffering hallucinations or delusions. Ms Lee’s file note of her first conference with Mr Croft on 11 April 2013 includes:

“late Jan 13 = you saw CBI statements 2 June showing $300,000 – 3 x lots of $100,000

... Leah – you think she owns a brothel

You have had visits from strange people”

106. In addition to a file note recording the instructions referred to in Hunt & Hunt’s letter of 2 May 2013 referred to at [102] above, Ms Lee made a file note on 23 July 2013 in which she said she had concern as to the mental capacity of both June and Warwick. She recalled having had repetitious conversations with Warwick during which he did not appear to recollect their last conversation.

107. Ms Lee (who handed over carriage of the file to Ms Po when she left her employment) reported to Mr Miller on 29 July 2013 that “... I expect Warwick may eventually need his own case guardian although not immediately ...”.

108. On 21 October 2013 Mr Miller and Ms Po had a conference by telephone with counsel, Mr Ian Duane, who was retained to act for Mr Croft in the family law matter. It appears that Mr Croft, Anna and Mr Stephenson also participated in that conference. In his letter of 30 October 2013 to Hunt & Hunt Mr Duane referred to a long telephone conference on 21 October. He asked to be provided with Mr Croft’s instructions “... about something that he raised in conference which I also noted in the material relating to something about prostitutes. Having reflected on the matter I should know what it is that our client thinks about this matter and upon what basis.” The appellants note that Hunt & Hunt’s file notes of the telephone conference on 21 October 2013 make no reference to Mr Croft’s having mentioned prostitutes.

109. The significance of instructions given by Mr Croft to Ms Lee that raised doubts about his capacity is overstated in the appellants’ submissions. There is no question but that Mr Croft did describe bizarre events that indicated he suffered hallucinations, if not delusions. Nor did the primary judge rely upon Mr Miller’s evidence of his perception of Mr Croft’s capacity as anything more than his observation that the instructions given for the will were rational and considered. The question rather is whether the respondents have shown on the balance of probabilities that Mr Croft did not suffer those hallucinations or delusions when he gave instructions for his will.

110. Ms Po took over responsibility for the carriage of the family law matter on 29 July 2013. She first met Mr Croft in early October 2013. After her conference with Mr Croft she worked upon the drafting and preparation of his affidavit for family law proceedings. She conferred with Mr Croft in person on a number of occasions when preparing drafts of the affidavit. The affidavit was signed on 15 November 2013. It contains a detailed and coherent description of matters relevant to the family law claim including Mr Croft’s comments in relation to the appointment of Leah as June’s case guardian, contributions made by Warwick during the marriage, the business of Courthouse Service Station Pty Ltd and the establishment of the boat motor parts trading business that traded under the name Cohoe Marine Products, including Anna’s role in that business in about 1993 and her greater involvement in the business after June left the business in about 2006. The affidavit described an inheritance that Mr Croft received, being shares in two private companies. The affidavit described the circumstances of June’s moving from the Beecroft property because of the pigeons, and his description of the parties’ assets in about 1998 when she left the Beecroft property. Mr Croft described the purchase of the North Ryde property. He deposed that he and June maintained an ongoing and amicable relationship until December 2012. He said that June had never communicated to him personally about her intention to end their relationship and to divide the assets that they owned jointly. He said that he did not believe that June had any intention to end their relationship, but that the proceedings were commenced at Leah’s instigation. The primary judge made a finding to that effect (Judgment [2]-[3]). Mr Croft then provided a detailed financial disclosure of his assets and liabilities.

111. Prima facie, if Mr Croft’s affidavit in the family law proceeding were the result of his instructions to Ms Po, as she deposed, it would show that he did not suffer significant cognitive impairment when his mind was not under the influence of hallucinations or delusions.

112. The appellants submitted that the affidavit showed that Mr Croft was acting under a delusion as to June’s and Leah’s circumstances. Mr Croft deposed that:

“14.   Soon after Christmas 2012, Leah removed June from the hospital and took her back to her residence without giving any prior notice to me. Leah did not inform anyone in the family that she had taken June from the hospital. I was unable to make contact with June after that. June has stayed with Leah since she was discharged from the hospital. I was not allowed to see June after she moved to live with Leah.

15.   I tried to telephone June on numerous occasions. Her telephone was diverted to the voicemail service each time I tried to call. Attached and marked ‘A’ is a copy of my telephone statements. I did not contact Leah because Leah was aggressive towards me and I wanted to avoid conversation with her. Each time I talked to Leah, it would end up in an argument.”

113. There was no issue that June was removed from the hospital by Leah and taken back to Leah’s residence without prior notice to Warwick. But the appellants said that Mr Croft was deluded in saying that he was unable to make contact with June after that and that although he had tried to telephone June on numerous occasions, her telephone was diverted. They submitted that Mr Croft was deluded in thinking that he was not allowed to see June after she moved to live with Leah because he did see her. Leah gave evidence that after June was discharged from hospital on 3 January and moved to Leah and Peter Bell’s house at Caves Beach, Warwick spoke to her at length on 4 January. This is corroborated by telephone records showing a call from Beecroft to Caves Beach of 29 minutes and 15 seconds. Leah deposed that the call was mostly between her father and mother. There was a further call on 6 January. Leah deposed that when Warwick telephoned the Caves Beach property on 4 January he accused her of having stolen her mother and taken her away from him so that he could not visit her.

114. Leah deposed that Warwick visited June on one occasion in about late January 2013 when she (Leah) was not home. That evidence was hearsay, but was not objected to. In any event, it is clear that Warwick visited June again on 6 February 2013 when he was accompanied by Mr Stephenson and Mr Stephenson’s wife, Joan. Mr Stephenson deposed to that attendance.

115. Accordingly, it was established that Mr Croft’s family law affidavit was not accurate when he deposed that he was unable to make contact with June after she left Royal North Shore Hospital and was not allowed to see June after she moved to live with Leah. However, it is not established that this was more than an exaggeration of the true position. In Hunt & Hunt’s letter to Turnbull Hill Lawyers of 4 February 2013 (referred to at [93] above), Hunt & Hunt said:

“We understand that Mrs Croft is planning to return to her home shortly. Please confirm this and the arrangements for the payment of accounts for the property as these have been paid by Mr Croft to date. We also note that Mr Croft has been paying an allowance to Mrs Croft. Would Mrs Croft like to continue this arrangement and is she seeking any variation to the allowance.”

116. The letter was forwarded to Leah who responded to Turnbull Hill Lawyers as follows:

“Thank you for the letter. So the fight begins.

Please ask Hunt and Hunt for medical certificate for my father and mini mental state assessment. If we are checking capacity we might as well cover all bases.

Hunt & Hunt are nasty. Please do not send them anything I write to you as everything is being sent to my father’s family.

My father came to visit my mother yesterday. This was not planned – he was supposed to come on Tuesday. In future I will not allow him in unless he comes as agreed. If he plans to bring people with him he should let me know as is just courtesy – maybe I could bake a cake!”

117. Elisabeth wrote to her sisters, Leah and Esther, on 24 February 2013 about a telephone conversation she had that day with Warwick in which she reported that Warwick complained that Leah and Peter were controlling June by not letting her see Warwick without one of them present, or by turning off the phone so that he could not call her.

118. The appellants did not establish that Warwick’s affidavit was more than an exaggeration of the true position. It can readily be inferred that Leah resisted Warwick’s attempts to meet and talk with June.

119. Another issue concerning Ms Po’s evidence was whether the instructions that she said she received from Mr Croft were in fact conveyed to her not by him, but by Anna. Ms Po prepared an initial draft of Warwick’s affidavit for the family law proceeding and received back handwritten amendments to the draft, some of which were in Anna’s handwriting. Ms Po wrote on the first page of the draft “draft amended from Anna”. Ms Po said that in preparing the affidavit she had personal contact with Anna. Most of that content was about the business of Courthouse. Ms Po also gave oral evidence that she went through the affidavit with Mr Croft in which he could account “... for the whole story in the past, but recent events he was also able to provide all the details to me ...”. The primary judge was entitled to accept Ms Po’s evidence that Mr Croft personally gave her instructions for the detail and content of his affidavit.

120. Mr Stephenson gave evidence that some days after late December 2012 he was informed by either Warwick or Anna that June had been signed out and taken from the Royal North Shore Hospital by Leah. He deposed that around this time Warwick said to him words to the effect that Warwick did not know where June was and was visibly distressed. He deposed that Warwick told him that Leah would not tell him where June was. The timeframe in relation to that conversation is uncertain and the primary judge made no finding as to whether Warwick was at any time not informed where June had been taken to, although Warwick clearly learned early in the piece that she had been taken to Leah’s house at Caves Beach.

121. Mr Stephenson deposed that on 31 August 2013 he had lunch with Warwick with six other members of Mr Stephenson’s family and on that occasion Warwick engaged in the general discussion at the table and there was nothing unusual in his demeanour or behaviour. In cross-examination about that meeting he said that Warwick did not say anything that he considered to be repetitive. He talked about his pigeons, but did not go off on a tangent. He did not appear to be confused or forgetful, nor obsessed about the family law proceedings. He did not talk about any of his daughters and did not say anything about prostitutes, witches or brothels. This evidence was consistent with Mr Croft’s hallucinations or delusions being episodic. Otherwise, Mr Stephenson’s evidence does not materially bear on Mr Croft’s testamentary capacity.

122. Also significant is Anna’s evidence that Warwick prepared a bank reconciliation statement as at 11 (sic 1) December 2013 in which Warwick accurately reconciled the bank statement as at 31 October 2013 and as at 1 December 2013 with unpresented cheques as recorded in cheque butts.

123. Warwick also prepared a document as at 11 December 2013 calculating the amounts that were outstanding on bills rendered by Hunt & Hunt.

124. Warwick’s ability to carry out such tasks is not relevant to the appellant’s challenge to his testamentary capacity on the basis of hallucinations or delusions he had about his daughters or generally. However, it is relevant to an assessment of the extent of his underlying cognitive impairment.

Conclusion

125. Although the primary judge did not refer to the details of the evidence on which the appellants relied as pointing to Mr Croft’s lacking capacity to make his will of 11 October 2013, his conclusion that the lay evidence and the form and content of the will provided confirmation of his testamentary capacity was correct.

126. I do not accept the appellants’ submission that the primary judge diverted himself from the question of Mr Croft’s capacity by finding that the will was rational from Mr Croft’s perspective. The will was inofficious. Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument.

127. The primary judge was correct in addressing the question of why the will was rational from Mr Croft’s perspective, as an element of his assessment of capacity. The primary judge did not conclude that Mr Croft had capacity because the will was rational from his perspective.

128. The lay evidence confirmed the contemporaneous medical evidence that Mr Croft’s underlying dementia did not deprive him of testamentary capacity. It also demonstrated that more probably than not his hallucinatory or delusional beliefs about his daughters were episodic rather than continuous. Had he held such beliefs when he gave instructions to Mr Miller for his will it is likely that he would have expressed them when they discussed the provision he proposed for his daughters other than Anna. The lay evidence discharged the respondents’ onus of establishing that the hallucinatory or delusional beliefs that Mr Croft expressed from time to time did not affect his testamentary dispositions.

129. For these reasons I would dismiss the appeal with costs.

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Decision last updated: 12 December 2019