Equity Trustees Limited v Nicholls; Re Nicholls (dec'd)
[2004] VSC 430
•29 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. Prob1 of 2003
IN THE MATTER of the Will of BARRIE WILLIAM GRISOLD NICHOLLS (Deceased)
| EQUITY TRUSTEES LIMITED | Plaintiff |
| V | |
| DIANA NICHOLLS and Ors | Defendants |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 11, 12, 13 and 14 October 2004 | |
DATE OF JUDGMENT: | 29 October 2004 | |
CASE MAY BE CITED AS: | Re Nicholls (deceased); Equity Trustees Ltd v Nicholls | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 430 | |
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Wills and codicils – testamentary capacity – whether testator lacked capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.T.A. Waddell | Garland Hawthorn Brahe |
| For the Firstnamed Defendant For the Second and Thirdnamed Defendants | Mr R.R. Boaden Mr R.B. Phillips | Aitken Walker & Strachan McNab McNab & Starke |
HIS HONOUR:
For many years Barrie William Grisold Nicholls had practised as an ophthalmologist from premises in Preston. Doctor Nicholls died on 24 May 2002 leaving a will executed on 16 April 2002. This case concerns his mental capacity to make that will.
The last four years of his life were indeed tragic ones. Divorced since 1983, he lived alone at 19 Milton Street, Canterbury. His only surviving son, Brendan, who had been diagnosed with prostate cancer in 1996 died of consequential renal failure on 7 July 1998 at the age of 27 years. Brendan, who had been blind for most of his life and who had been diagnosed at an early age as being retarded with multiple learning difficulties was very much loved by his father. His mother also died in May of that year.
This left, as his next of kin, his sister Diana Nicholls and her two children Nina Suzanne O’Leary and Paul David O’Leary, all of whom have lodged caveats against his last will and are the defendants to this proceeding. The evidence showed, if it be relevant, that his sister Diana and his niece Nina are in poor health and in receipt of pensions.
By his will, Dr Nicholls disposed of a substantial estate: it is valued in the inventory at $2.6M and is now said to be worth approximately $3.3M. Substantial bequests are made to Susan Doreen Dean who was employed by him in his medical practice since 1977 as receptionist and secretary and who enjoyed a “close, personal and romantic relationship” with him between 1987 and 1991 and again from about August 2000 until his death; and to another employee, Frances Eugene Hall, who served as his receptionist and typist from 1976 to 1982, for a short time in the late 1980s, and again from October 1991 till his death. The scheme of this will is as follows: Mrs Dean received a legacy of $50,000 and a life interest in two-fifths of the residue, with a gift-over to her surviving children. Mrs Hall received a legacy of $25,000 and, as will be seen, a life interest in one-fifth of the residue. Dr Nicholl’s sister, Diana Nicholls, received a legacy of $40,000. The remaining three-fifths of residue, that is the residue other than the share of Mrs Dean and her children, was dealt with as follows: a life interest of one-fifth share is given to each of Mrs Hall, Nina O’Leary and Paul O’Leary or the survivor of them and, when the last of them dies, it passes to the University of Melbourne for research in the Department of Ophthalmology.
The will was prepared by the plaintiff, Equity Trustees Ltd, upon instructions given by Dr Nicholls at his home to its Manager Private Clients, Rodney William Browne on 4 April 2002. Mr Browne said that, when the will had been drafted, he returned to Dr Nicholls’ home on 11 April with a draft and obtained the approval of the testator to its contents. The will was then executed, again at Dr Nicholl’s home, on 16 April 2002 in the presence of Mr Browne and another officer of Equity Trustees, Andrew Ewan Parrott. The evidence before me showed, and this was not in dispute, that the formal requirements of the Wills Act for the execution of a will were satisfied. It was likewise not contested on behalf of the defendants that the will was an officious one.
The grounds of objection given by the caveators are as follows. Mrs Diana Nicholls alleges that:
“1.The deceased lacked testamentary capacity during the period shortly before and at the time of execution of the Will.
2.The deceased did not know and approve of the contents of the Will.”
Those of Nina O’Leary and Paul O’Leary were similar:
“1.That the Deceased lacked testamentary capacity during the period shortly before and at the time of execution of the Will as a result of illness and his general debility which led to his death six weeks after the making of the Will.
2.That the deceased did not know and approve the contents of the Will.”
The evidence showed that Dr Nicholls suffered a severe stroke on 13 February 2000 for which he was admitted to Epworth Hospital by his general practitioner Kasey Zdanius. At this time, too, he suffered heart failure for which he was provided with a pacemaker. By all accounts, he was very seriously ill at this time and the witnesses spoke of a real apprehension that he would not survive. But survive he did; he was discharged from rehabilitation on 15 May 2000.
As a medical practitioner, Dr Nicholls enjoyed the longstanding friendship of a number of professional colleagues. One of them, Dr Zdanius, had known him since their days in medical school in the 1960s. Doctor Zdanius expressed the opinion that, as at May 2000, Dr Nicholls had suffered permanent brain damage, that he could read a newspaper but had little comprehension of the words he was reading.
A curious feature of this case is that, notwithstanding observations such as those of Dr Zdanius, the deceased, even at this time, was observed by his friends to have made a good physical recovery. His friend and solicitor, Geoffrey Harold Ripper, remarked in a note of a meeting with him on 17 July 2000 that “Barrie’s physical recovery had been so remarkably complete that in one sense he appeared to be quite okay to resume practice. However, in the mental sense he was clearly not able to resume practice”. Mr Ripper said that, at this meeting, Dr Nicholls was conversing coherently about the matters under discussion – a proposal that he sell his practice. Mr Ripper said that some of his speech was irregular and that he had difficulty with certain sounds and with numbers, but that he understood what was being discussed.
In the early days after the stroke, it was apparent that Dr Nicholls lacked the mental or the physical capacity to look after his own affairs. During this time these were attended to by Equity Trustees under an enduring power of attorney and his long-time friend and colleague, William Alan Firth-Smith, looked after his patients. In March 2000 an application was made to VCAT by a hospital social worker for a guardianship order, but this was not made and the application was finally dismissed in August 2000. Meantime, Equity Trustees continued to handle his affairs until early 2001. Mr Browne, who was concerned with the handling of his affairs at this time, said that his health, physical and mental, improved over the 12 month period of Equity Trustee’s administration, so that by early 2001 he was able to resume management of his practice. At this time, in Mr Browne’s estimation, his thinking was clear.
By June 2000 he was able to travel by two trains from his home in Canterbury to Preston where he chatted in his rooms with patients and discussed medical matters with the locums who were operating the practice. In August he took up again his relationship with Mrs Dean. By September he was able to obtain a driver’s licence and thereafter drove to Preston, although Dr Firth-Smith and his wife, Margot Cullen Firth-Smith, said that this horrified them. It was, however, apparent that he would never be able to resume his practice. For his part, Dr Nicholls was reluctant to accept this, and this is understandable as it had been an important part of his life for very many years.
A further disaster afflicted Dr Nicholls on 28 December 2000 when he was admitted to St Vincent’s Hospital under the care of Dr Jeremy Richard Goad for a urinary problem which was diagnosed as advanced prostatic cancer. I should record that there was considerable confusion in the evidence as to whether this diagnosis occurred in December 2000 or December 2001, but I prefer the earlier date because of the note of it made on 7 February 2001 by Dr Zdanius. For my purposes, this cancer is important, not only because it represents a significant set-back in his health, but also because Dr Goad prescribed in January 2001 a course of hormone therapy to arrest the progress of the disease and this continued until his death in May 2002. Dr Goad said that a possible side effect of this treatment includes a slowing of the patient’s normal mental processes.
Notwithstanding this, Dr Nicholls was able to live a more or less active life in 2001. As I have mentioned, he was well enough in 2001 to retake control of his practice from Equity Trustees. By this I take the evidence not to be that he actually conducted the practice, for he had locums to do this; he resumed control of its operation with the assistance of his staff, including Mrs Dean. Dr Nicholls travelled with Mrs Dean to the Western District in April 2001. Upon examination on 18 July 2001, Dr Zdanius noted that he “looks well and speaks well, no sign of slight pained or anxious expression previously seen”. On 21 August 2001, Dr Zdanius noted “good colour and prompt responses”. In September, Mrs Dean and he again took a holiday, this time by train to Alice Springs. On his return from this holiday, Dr Zdanius’ notes record that on 4 October the patient looked well but had regained too much of his old weight.
It appears that Dr Nicholls spent a very busy Christmas day in 2001. He visited the Rippers in the morning, taking a bunch of roses for Mrs Ripper and he made a similar visit to the home of the Firth-Smiths, including taking a bunch of roses for Mrs Firth-Smith. After this, he had lunch with his sister, Diana Nicholls and Paul and Nina and her partner, Paul Graham Handley, at their house in North Melbourne. It is interesting to note what the witnesses said about Dr Nicholls on this Christmas day. Mr Handley described his appearance as a bit dishevelled and his conversation was “at best at a basic level”. Nina made no observation of his appearance or manner. The third person present at the lunch, Diana Nicholls, said that “it was a relaxed, happy day. As Barrie and Paul often did, they enjoyed talking about scientific matters together”. Mr and Mrs Ripper made no comment about Dr Nicholls on this occasion. The Firth-Smiths, however, observed that he was not well.
I should observe that this evidence by the Firth-Smiths may have been a product of the confusion in dates because they both said that he was soon after admitted to hospital on 28 December 2001 with acute urinary problems, an event which I am satisfied occurred on the previous December. It is, perhaps coincidental, that Dr Zdanius made the same error in his affidavit notwithstanding that it is contradicted by his contemporary notes.
Mrs Dean had travelled to Austin, Texas to spend Christmas 2001 with her daughter and her family. It is, to my mind, significant that Dr Nicholls took it upon himself to follow her there in the days after Christmas. He spent New Year with her in Texas and they then travelled together to Louisiana and Mississippi. The importance of this is not only that it corroborates the fact of his affection for her, but also because he was well enough, mentally and physically, to organise the trip and to undertake it.
Following his return to Australia he consulted Dr Zdanius on 24 January 2002. The notes taken by the doctor contain the following: “cognitive function is absolutely remarkable… chats normally again, has found that interest, understanding, and enjoyment of living is there again”.
Doctor Zdanius was asked about the consultation which provoked this comment. He said that, since his stroke two years previously, Dr Nicholls had impairments which were sometimes subtle and sometimes obvious. On this occasion, Dr Zdanius recorded his pleasure to see that those impairments were not present. Nevertheless, the witness remarked, as did Dr Goad, that he appeared to have an unrealistic appreciation of his capacity to resume work and a surprising, for a medical practitioner, want of appreciation of his medical condition. Doctor Zdanius concluded in his affidavit that Dr Nicholls would in April 2002 have lacked the capacity to understand and give genuine consideration to complex issues. When pressed to explain this the witness spoke of his friend’s impaired judgment and said that Dr Nicholls never fully recovered from his stroke. The comments in his clinical notes, therefore, should be regarded as representing his satisfaction at the progress which had been made by the end of January. Accepting that he was delighted with the progress of his friend and patient by the end of January, I cannot fail to be impressed with Dr Zdanius’ written observation, confirmed as it is by so much of the contemporaneous evidence.
Doctor Nicholls was well enough to remember to send flowers to his sister on her birthday on 1 February 2002.
On 18 March 2002, Dr Nicholls was admitted to the Freemason’s Hospital again with kidney failure caused by the cancer. Dr Goad sought to insert a by-pass but this was not successful. He was referred to Dr Guiney for radiotherapy and was discharged from hospital on 24 March. After he returned home he was cared for by Mrs Dean who lived at Milton Street until his final admission to St Vincent’s Hospital on 14 May.
Between 24 March and 4 April 2002, the date upon which he gave instructions for his will, Dr Nicholls had contact with a number of people who gave apparently conflicting accounts of their impressions of his mental acuity. I approach this conflicting evidence with considerable caution. All of the witnesses who knew Dr Nicholls in the days before his stroke describe him as a man of few words, quiet, softly spoken, but animated upon matters that interested him. He tended not to engage in long conversations, contenting himself with just one or two word answers. He was a man who found it difficult to arrive at a decision but articulate and intelligent. He was a businessman who was interested in his investments, but he was variously described as being “disengaged” from this activity, and that these matters did not “turn him on”. He preferred to leave these matters to others. Many of these characteristics in another person may be seen as signs of mental infirmity. I am conscious, however, that his treating doctors are men trained and experienced in detecting subtle signs of such a condition.
On 26 March 2002, Dr Goad saw him in his rooms. The doctor had seen his patient regularly every few months since his cancer was diagnosed in December 2000. About this time, Dr Goad saw his patient in his rooms on 26 February 2002, 14 March 2002, 26 March 2002 and 30 April 2002, leaving to one side the occasions he had seen him in hospital. Doctor Goad’s opinion was that throughout this period and, indeed in 2001, Dr Nicholls’ mental condition was stable. In his affidavit Dr Goad describes him in these terms: “He appeared able to understand what I said to him and to be alert, but his appearance, demeanour and conversation gave the appearance of a person whose mental capacity was impaired”. What appeared to be remarkable for Dr Goad was the fact that, as a medical practitioner, Dr Nicholls did not have a better grasp of his situation.
On 27 March he was seen by Dr Dowling, his oncologist. In his letter of 3 April 2002, Dr Dowling says, without putting a date on it, that it was difficult to get a clear picture from his patient.
On Good Friday, 29 March 2002, Dr Nicholls went to the home of Ian William Yuill who had known him for many years and shared a mutual interest in the Mont Albert Musical Society. Mr Yuill observed no impairment of the mental processes of his friend. The witness was not cross-examined.
On Easter Monday, 1 April 2002, Mrs Hall and members of her family visited Dr Nicholls at his home for about two hours. She records a normal conversation.
On Easter Tuesday, 2 April 2002, Dr Nicholls’ accountant Duncan Thomas McGregor called upon him in the early evening to obtain his signature on a document. They had a conversation for about 30 minutes which included a discussion about his health and about a property in Box Hill which he was thinking of selling. It was in this conversation that Mr McGregor, as he had for some time previously, pressed Dr Nicholls to update his will and was accordingly asked by his friend to contact Equity Trustees for this purpose. Mr McGregor observed no confusion or lack of comprehension on this visit. I place considerable weight on the evidence of this witness. I do so, not only because he impressed me as a reliable and observant witness, but also because he knew his client well over some 20 years and throughout that period, and indeed up to 21 May 2002, three days before his death, dealt with his financial and business matters. Mr McGregor says that, as late as this last visit, Dr Nicholls clearly understood the nature and effect of the business matters which they discussed.
On Wednesday 3 April, Dr Nicholls spoke by telephone to another medical friend going back to his university days. This was Thomas Ian Evans, a retired anaesthetist. Doctor Evans told me that he spoke to both Dr Nicholls and to Mrs Dean on this occasion. Doctor Evans described his friend as mentally alert and rational.
At 11 am on 4 April 2002, Mr Browne attended Dr Nicholls at his home and took instructions for the will. He did so being alone with the testator although Mrs Dean was present in the house. Mr Browne had been told by Mr McGregor that it was Dr Nicholls’ wish to revisit his will of 1994 and that there had been a change in his health. The change in health, it would seem, did not strike Mr Browne as possibly affecting his client’s mental capacity because he did not explore this matter with the testator. Mr Browne took notes at this meeting but he destroyed them. His recollection of this meeting and what was discussed was very sketchy. It is, indeed, regrettable that he saw fit to destroy notes which might have fleshed out his recollection.
Mr Browne said that he took with him Dr Nicholls’ current will which had been executed on 14 January 1994. This is a complex document which dealt with his estate as follows. Legacies were given to Mrs Dean ($30,000) and to Mrs Hall ($15,000). The control of the BWG Nicholls’ Family Trust passed to his former wife. The disposition of the residue was complicated. First, it was to be held under a discretionary trust of income in favour of Dr Nicholls’ mother, who had since died, and his sister or the survivor of them with any unapplied income to his son Brendan, who had since died. On the death of the last of these, the residue would pass to the widow or children of Brendan and if there be none surviving, to his niece and nephew, Nina and Paul O’Leary. In the events which had then occurred, Nina and Paul would have taken the whole of the residue absolutely.
Returning to the meeting of 4 April, Mr Browne told me that Dr Nicholls was aware that some of the beneficiaries under this current will had died and that his circumstances had changed. Mr Browne took Dr Nicholls through the legacy provisions of the 1994 will and noted the testator’s instruction for increases in the amounts for Mrs Dean and Mrs Hall. When he arrived at the very complicated cl. 3 in the 1994 will, Mr Browne told me he put the old will aside and started afresh. Dr Nicholls told Mr Browne that he wanted to make greater provision from residue in favour of his staff and the two men discussed the proportions which these would share with the niece and nephew. Dr Nicholls made it clear that he wanted the staff to receive a greater share than his relatives because the practice was to be sold and they would lose their salary income. These matters were discussed and the final distribution was determined by Dr Nicholls. Mr Browne said that he canvassed with Dr Nicholls the relatives living who might be likely to be included in the will and that he discussed also the fact that under the proposed will his sister’s entitlement was reduced. Doctor Nicholls told Mr Browne that he had reduced the entitlement of his niece and nephew because he had provided for them in his lifetime. The evidence shows that this was correct. He said, too, that he had provided for them through his mother’s estate. The correctness of this assertion was challenged before me. It was pointed out that as, in the events that occurred, Dr Nicholls was not a beneficiary under his late mother’s will, so that it could not be said he had relinquished his inheritance in favour of his niece and nephew. It was pointed out, too, that the mother’s will was made on 12 May 1993, before the penultimate will of Dr Nicholls in which he had made substantial bequests in favour of his sister and niece and nephew. The evidence, nevertheless, shows that Dr Nicholls stated to Mr McGregor that he had persuaded his late mother to provide for his sister Diana in preference to himself, and this she did. His asserted reason for reducing or removing the entitlements of his sister and her children is therefore supported by the evidence.
Doctor Nicholls’ reference to his changed circumstances is unclear. He may have had in mind the revival of his relationship with Mrs Dean.
Mr Browne told me that there was no discussion about Dr Nicholls’ assets. He described Dr Nicholls generally as being shaved and normally dressed with speech patterns similar to those which he had had in 2001 when Mr Browne had last seen him and with no apparent inability to find appropriate words. In the days that followed this visit of Mr Browne, a number of witnesses saw Dr Nicholls.
On Sunday 7 April in the evening, the Firth-Smiths visited their old friend at his home. Mrs Firth-Smith was by training a nurse. She said it was a long time since she had seen him – the last occasion was possibly Christmas day 2001. She said Dr Nicholls was dressed casually in his normal way but that he had the appearance of a very sick man, very pale, breathless and drowsy. He staggered out of his chair to greet them and slumped back afterwards. He walked with great effort to the front door to see them off. Doctor Firth-Smith confirmed his wife’s account to some extent, describing Dr Nicholls’ appearance as dishevelled with a slumped posture.
Mrs Dean was also present at this visit. Her account was very different from that of the Firth-Smiths. Hers is a diametrically opposed version as to whether Dr Nicholls’ was alone in the kitchen when the Firth-Smiths called; as to what was said and by whom and as to the demeanour and mental alertness of Dr Nicholls. Some of these differences were not put to Mrs Dean when she gave her evidence early in the trial. I infer that counsel for the defendants had not then been instructed at to these matters.
This is an important meeting, occurring as it did, a few days after the instructions were given for the will. All three witnesses were cross-examined. In assessing them I bear in mind, of course, that Mrs Dean has a direct interest in the outcome of the litigation. I am mindful, too, of my impression that Mrs Firth-Smith appeared to bear some antipathy towards Mrs Dean and to be of the firm opinion that the April 2002 will ought not to have been made in the terms that it was made. She appeared to be of the view that Mrs Dean had, in some way, contrived to prevent her from visiting her friend and that he had simply signed a will which had been drawn up by another. It may be that, in her mind, that other was Mrs Dean. There was, however, no evidence to support these views. The particulars of objection do not raise this issue and I make no finding as to it. Nevertheless, the views of this witness which were hostile to the April 2002 will and also to Mrs Dean have, in my judgement, coloured her recollection of events and have led her to exaggerate some of the matters which she described. My impression, too, is that her husband has been content to support her in this. This causes me to approach their evidence with considerable caution.
On the following day, 8 April 2002, Nina, together with her partner, dropped in to see her uncle. They observed that he had difficulty preparing coffee for them. She records that her uncle made a remark which suggested that he believed that Paul was still at school, this was clearly inappropriate as Paul had finished school many years before as Dr Nicholls should have known. Mr Handley noticed, too, that he appeared to move with difficulty. The witnesses were not cross-examined.
An altogether different picture is painted by Ronald Alwyn Speechley, a retired medical practitioner, a patient and friend of Dr Nicholls of some 30 years. Doctor Speechley visited his friend at 10 am on Tuesday 9 April and they talked together for several hours. Doctor Speechley deposed that his condition was better than he would have expected for a man who had suffered a massive stroke some 15 months earlier. He described Dr Nicholls as completely rational and mentally competent and his conversation was lucid. The witness was not cross-examined.
About the same time, early in the week commencing 9 April 2002, Dr Nicholls was visited in the evening by Mr Ripper and his wife, Helen Ripper. They talked with Dr Nicholls for about an hour and observed nothing confused or irrational in his conversation or demeanour and no impairment of mental capacity. Mrs Ripper was not cross-examined.
On 10 April, Dr Nicholls had the first of a series of radiotherapy treatments to reduce a lump on his chest caused by a secondary cancer.
At 10.30 on the following morning, 11 April 2002, Mr Browne brought to Dr Nicholls’ house a draft of the new will. The two men spoke alone in the front room for some 20 minutes, Mrs Dean being elsewhere in the house. Mr Browne produced the draft which Dr Nicholls read without asking any questions. He then indicated that the draft complied with his wishes and that Mr Browne might have the final document engrossed for execution. Mr Browne recalled that Dr Nicholls appeared neat and tidy on this occasion, dressed casually and neatly shaved.
Two days later, early in the morning of 13 April, Dr Nicholls was again admitted to the Freemason’s Hospital with acute lower abdominal pain. He had significant renal impairment and was given 27.5 milligrams of morphine over an hour up to 3.20 am on that day. He was discharged on 15 April.
It was at 11 am on the following day, 16 April 2002, that Dr Nicholls executed the will. This was done at home with him alone in the presence of Mr Browne and Mr Parrot. Again, Mr Browne’s evidence was regrettably sketchy. He says in his affidavit that he handed the will to Dr Nicholls with a request that he read it through and that, when this was done, the testator said he approved it in its entirety. Doctor Nicholls asked no questions and raised no queries about its content. The will was then executed. In the witness box Mr Browne observed that the testator’s physical condition was as it was on the two previous visits, as was his manner of speaking. Mr Browne said that the testator appeared lucid and rational at this meeting and he had no reason to doubt his testamentary capacity.
The account given by Mr Parrot of this meeting at which the will was executed was rather different. He records that Mr Browne took a more active role, taking Dr Nicholls through and summarising and explaining the provisions of the will and their impact as he did so. He said, too, that Dr Nicholls was lucid and rational and alert and attentive throughout. Mr Parrot observed from Dr Nicholls’ body language and facial expressions that the testator was interested in and understood the content of the will which he executed.
Evidence was then led from medical and lay eye-witnesses of Dr Nicholls’ condition, mental and physical, from the date of execution of the will until he was finally admitted to St Vincent’s Hospital on 14 May prior to his death 10 days later. Again, there is a significant difference between these witnesses as to his mental alertness right up to the eve of his death.
There is no dispute between the parties as to the principles which I must apply in this case. I was referred to the principal authorities including the helpful list of propositions enunciated by Isaacs J in Bailey v Bailey[1].
[1](1924) 34 CLR 558 at 570-2
I have made or make the following findings as to matters which were either conceded or not seriously contested:
(1) The will was duly executed.
(2) The will was an officious one.
(3)The will as executed was in terms identical to that approved by the testator on 11 April and in accordance with instructions given on 4 April.
(4)The will was read and explained to the testator prior to his execution of it on 16 April 2002.
The contest before me was as to whether, on 4 April Dr Nicholls had testamentary capacity in the sense that the law understands this. Each side lined up the eye-witnesses whose evidence tended for or against this capacity.
Evidence was also led by the contending parties from eminent medical practitioners who expressed a view as to the testamentary capacity of Dr Nicholls from an examination of the affidavits of the eye-witnesses and the medical records which contain assessments of the treating doctors and details of the patient’s condition and medication. These witnesses were not eye-witnesses for they had not seen Dr Nicholls. Their evidence is, I fear, less helpful than that of the eye-witnesses, especially those who knew the testator well. This follows from the fact that the selection of eye-witness evidence given to the experts was incomplete. Moreover, it did not include the oral evidence of these witnesses before me which, as I have observed, was in some cases more expansive than their affidavits. In any event, there are conflicts between these eye-witnesses which it is for the Court, not the expert witnesses, to resolve. Finally, much of their opinion based on the medical records depended upon material which was not before the Court. I add immediately that no party took any point of this, but it makes it difficult for the Court to treat their evidence as more than a guide to better understanding the medical implications of the eye-witness evidence.
Having carefully weighed the evidence leading to the 4 April meeting with Mr Browne and immediately after it, I have no doubt that Dr Nicholls had testamentary capacity when he gave instructions for his will. I am satisfied that up to the end of March 2002, Dr Nicholls had made a remarkable recovery from his stroke of February 2000 and that the prostate cancer which had been diagnosed in December 2000 did not have an adverse impact upon his mental state at the time with which I am concerned.
I accept that the hormone therapy prescribed by Dr Goad in January 2001 may cause mental changes including the slowing of the normal mental processes. But there is no evidence that the therapy had this effect upon Dr Nicholls.
Evidence was also led of the creatinine level of Dr Nicholls recorded on various dates in early 2000. This is a measure of protein breakdown in the urine and demonstrates the effective functioning of the kidneys. A normal level is about 0.11. Readings with respect to Dr Nicholls mentioned in evidence were: 18 March 2003 - 0.297; 20 March 2003 – 0.346; March 2003 – 0.35; and 13 April 2003 – 0.19. Doctor Goad expressed the opinion that higher than normal creatinine levels reflect a renal condition which might have impaired mental performance of the patient. Doctor Woodruff expressed the view that, while this might be the case, it very much depended upon the stability of the creatinine level and upon other factors which may predispose the patient to mental confusion. I accept this evidence might provide an explanation for an observed mental confusion in the patient and might cause a person to watch for signs of mental confusion; it does not cause me to reject the evidence of otherwise reliable eye-witnesses as to the absence of mental confusion.
The preponderance of the evidence of the witnesses who knew Dr Nicholls well and saw him in about the time with which I am concerned shows that, at least until the end of April 2002 and probably for some weeks thereafter, he was mentally lucid and able to make decisions. I refer in particular to the evidence of Mr Yuill, Mr McGregor, Dr Evans, Mr Browne, Dr Speechley, Mr Parrott and Mr and Mrs Ripper. I would also include the opinion of Dr Zdanius as it appears in his clinical notes. I put to one side the supporting evidence of Mrs Dean and Mrs Hall as interested parties, notwithstanding that they impressed me as honest witnesses.
In short, I am satisfied that Dr Nicholls on 4 April 2002 was aware of his assets, aware of the persons who might have a call upon his testamentary bounty, able to weigh up the competing claims of those persons and aware that he was giving instructions for his will. I am satisfied that the will he signed on 16 April 2002 reflected his instructions of 4 April and that he then understood and knew and approved of its contents. I will therefore admit the will to probate.
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