Herbert v Grey and Khorasane No. Scciv-02-967
[2003] SASC 384
•12 December 2003
HERBERT V GREY AND KHORASANE
[2003] SASC 384Civil
LANDER J. Stephen John Sinko (the Testator) executed four wills: the first on 16 January 1990, the second on 2 July 1997; the third on 23 December 1997; and the fourth and final will on 31 August 1998. The plaintiff is the sole executrix of the January 1990, the December 1997 and the August 1998 wills of the testator. Stephen John Sinko died on 16 March 2000 leaving a net estate of $77,315 mostly comprising money.
Originally the plaintiff sought orders that the Court pronounce for the August 1998 will or in the alternative the December 1997 will in solemn form and that the plaintiff be granted probate of the August 1998 will or in the alternative the December 1997 will.
After hearings on two separate days, 12 June and 9 July 2003, the plaintiff sought to amend the originating summons so as to include an alternative claim that the Court pronounce in favour of the January 1990 will and as a further alternative that the plaintiff be granted probate of that will. I allowed that amendment. The amended summons was filed on 10 July 2003.
This matter has had a somewhat unusual history and it is necessary to recount that history to understand why the amendment was sought and allowed.
Originally, this application was brought by Rita Nellie Herbert, pursuant to an order made by Williams J on 21 November 2001, to prove either of the December 1997 or August 1998 wills in solemn form.
The December 1997 and August 1998 wills both named Rita Nellie Herbert as executrix, as did the January 1991 will.
In both the December 1997 and August 1998 wills the testator left the whole of his estate to Rita Nellie Herbert. The only difference in the wills, which is not material, is that the August 1998 will does not revoke in its terms previous wills.
As I have already indicated during the hearing of this application, I allowed the plaintiff to amend and include as an alternative claim, a pronouncement in favour of the January 1990 will and probate of it.
By the January 1990 will the testator appointed Rita Nellie Herbert as executrix and left the whole of her estate “to his friend Louis Khorasane”. Louis Khorasane is Rita Herbert’s son. In the event that Mr Khorasane pre-deceased the testator then the whole of the estate was to go to Rita Nellie Herbert.
The July 1997 will appointed Kandy Grey as executrix and made her the sole beneficiary. In the event that she pre-deceased the deceased or was unable or unwilling to obtain a grant of probate the will appointed her daughter, Sandra-Lee Grey executrix and made her the sole beneficiary.
Kandy Grey survived the deceased and was joined in these proceedings as the first defendant and has been served with the original application and the supporting affidavits.
Louis Khorasane has been joined as the second defendant.
Apart from Rita Herbert, only Kandy Grey and Louis Khorasane have any interest in this application.
This matter first came before me on 16 May when Kandy Grey appeared unrepresented. She sought and obtained an adjournment to obtain legal advice. On 10 June she swore an affidavit before the plaintiff’s solicitor in which she deposed:
“1 I am the first named defendant in this action.
2I have received independent legal advice. I have given careful consideration to the will and application of the plaintiff and have decided not to contest the same.
3I therefore agree that this Honourable Court grant probate in solemn form of the will of the late Stephen John Sinko dated 31 August 1998 or the will dated the 23 December 1997.
4I know the facts deposed to herein of my own knowledge.”
On 19 November 2002 Louis Khorasane filed an offer to consent to judgment in the terms of paragraph 4 of the originating proceedings in this matter.
Paragraph 4 of the relief is in the following terms:
“The plaintiff claims:
(a)that the Court shall pronounce for August 1998 will or, in the alternative, the December 1997 will, in solemn form of law;
(b)that the plaintiff be granted probate of the August 1998 will or, in the alternative, the December 1997 will;
(c)that the costs of this action be paid from the estate of the said deceased.”
There was therefore no opposition to the Court pronouncing either the December 1997 or August 1998 wills in solemn form and granting probate to the plaintiff of one or other of those wills.
The matter came on for hearing again on 11 July when Ms Grey again attended. By then Ms Grey had been served with the amended proceedings. I explained to her the evidence which had been led in the proceedings to that point and the reason why the plaintiff had sought the amendment of the summons to prove the January 1990 will. I said:
“There is the July 1997 will which appoints you executrix and leaves his estate to you. You might now want to consider whether you want to claim he did have testamentary capacity in July 1997 and that he wasn’t subject to any influence and that that will should be proved.”
I gave some further information and concluded:
“Mr Brohier now wants to proceed to try and prove the 1990 will. If you want to try and prove the July 1997 will you’ll have to file a counterclaim and you’ll need legal assistance, I think. I’m not saying that you should do that. I’m not saying you should do anything. What I’m telling you is what the facts are since you were last here so that you can speak to someone about it. What would you want to do?”
The following exchange took place:
“MS GREY: I just want to get the hell out of it and go back to work.
HIS HONOUR: Do you? Are you still not interested in doing it?
MS GREY: No, I can’t see any reason.
HIS HONOUR: That’s a matter for you. I’ve explained it as best I can. I think that’s a fair explanation, Mr Brohier?
MR BROHIER : Yes.
HIS HONOUR: It’s a matter for you whether you want to do anything about it or not.
MS GREY: No, I don’t want to if you don’t mind.
HIS HONOUR: You don’t have to. It doesn’t matter to me whether you do it or not. All I want to make sure is that you understand your legal rights. If you want to give up any legal rights, that’s a matter for you. Do I understand you don’t want to do anything about it?
MS GREY: No, I don’t want to do anything about it.
HIS HONOUR: Do you want to think about it before you –
MS GREY: No, I’ve thought about it ever since I first got the paperwork. It didn’t interest me then and it doesn’t interest me now. I’m just doing the right thing by being here because I was told to be here.
HIS HONOUR: I’m very glad you came. I wanted to have to opportunity to explain it to you. Do I understand from what you say that you don’t want to try and prove the July 1997 will?
MS GREY: I can’t see any point in it. It’s a waste of everybody’s time.
HIS HONOUR: That’s a matter for you.
MS GREY: For everybody. He may have written a will. I didn’t know about that will until I came here. I didn’t even know it existed.
HIS HONOUR: The July 1997 will?
MS GREY: The one that was made to me, yes.
HIS HONOUR: There is some evidence of a conversation with Dr Steele that Dr Steele said that you were present at prior to making –
MS GREY: Yes, I took him to the doctor that day because he asked me to. If he wanted to do something like paying for funeral expenses and whatever else he wanted to do and I wasn’t there with him I said, ‘you’ll have to go to the doctor first to prove that you’re OK to do it otherwise a solicitor won’t do it for you’. That was just the only help I gave him. I didn’t know what happened after that.
HIS HONOUR: You’re quite sure you don’t want to try and prove that will?
MS GREY: No. I can’t see any point in it.
HIS HONOUR: All right.”
The plaintiff’s son, Mr Khorasane is the sole beneficiary in the January 1990 will. Naturally enough he does not object to the orders sought in the amended summons.
It follows that there is also no objection to the orders sought in the amended summons.
Ordinarily if the plaintiff called evidence to establish that the testator had testamentary capacity and that the will which is sought to be propounded was regularly executed in accordance with the formalities under the Wills Act 1936 (SA), in the absence of any other evidence the orders would go, because it can be assumed the testator knew of, and consented to, the contents of the will: Nock v Austin (1918) 25 CLR 519.
However, when any suspicious circumstances exist the assumption does not arise and the plaintiff has the burden of displacing the suspicion by proving the testator knew of and had approved of the contents of the will. The question is whether there are suspicious circumstances.
The plaintiff’s solicitor was also the testator’s solicitor.
He was consulted on 4 September 1997 by the plaintiff who asked him to advise the testator about making a new will. Ms Rita Herbert was present throughout the conference.
The plaintiff also sought advice in relation to the circumstances in which the July 1997 will had been executed and the testator’s relationship with Ms Grey, the beneficiary under that will. The testator instructed his solicitor that Ms Grey had exerted some influence over the testator prior to the execution of the 1997 will and moreover that she had, to use a neutral term, persuaded him to pay over a sum of more than $20,000 to her. On 21 August 1997 orders were sought under the Guardianship And Administration Act 1993 (SA). On 23 September 1997 the plaintiff was appointed the testator’s limited guardian and the Public Trustee Administrator of his estate.
I think, but it is by no means clear, that the solicitor was instructed to make a will in accordance with the terms of the December 1997 will.
No will was drawn between that date and 20 December because as the solicitor admitted he failed to act upon his instructions.
Either on or shortly before 20 December 1997 the solicitor was advised that the testator was in the Flinders Medical Centre and had suffered a stroke. I think it is clear that he was told there was a real risk that the testator would succumb. He went to the hospital with a friend, Ms Helen Modra, taking with him five drafts of a will. In all the drafts Rita Herbert was to be appointed executrix and trustee of the will. In some of the drafts she was also the sole beneficiary. In other drafts Louis Khorasane was made the beneficiary.
In all of the drafts the attestation clause provided that the will had been read to the testator. The testator was partially blind as a result of a stroke which was why he was in the Flinders Medical Centre. In some drafts the attestation clause recited that Ms Modra was present. In others the attestation clause assumes she was not present.
All drafts provided for the solicitor to sign the will at the request of the testator.
It appears clear that the solicitor armed himself for all eventual possibilities because he feared that the testator might not survive. A matter of concern to me is that the solicitor took with him a draft will which provided for Mr Louis Khorasane as a beneficiary. The solicitor had never received instructions from the testator to draw a will leaving his estate to Mr Khorasane. The solicitor did not see the testator in relation to the drawing of a will between September and 20 December. Why he would have drawn a will in those terms is unexplained.
No will was executed on 20 December because the solicitor was concerned about his ability to execute a will at the direction of the testator.
The solicitor returned on 23 December 1997 when the testator executed a will in the terms to which I have already made reference.
The attestation clause on this occasion is in the ordinary form. It makes no reference to the partial blindness from which the testator was suffering.
The testator did not read the will. It was read over to him and was signed after it was read over in the presence of the solicitor and Ms Modra.
The solicitor later spoke to the plaintiff expressing some concern about the validity of the will and whether it might be challenged on the basis that testator lacked testamentary capacity.
During 1998 the solicitor made arrangements for the testator to be examined by Mr Anthony Walsh, neuro-psychologist.
On 13 August 1998, the solicitor wrote to Mr Walsh in the following terms:
“Please advise on the following with regard to the capacity of Mr Sinko to make a will:
a)The understanding of Mr Sinko with regard to the extent of his property;
b)the appreciation of Mr Sinko with regard to the claims upon his estate to which he ought to give effect. In this regard there must be no disorder of mind which could poison his affections, pervert his sense of right, or pervert the exercise of his natural faculties.”
Mr Walsh saw the testator on 11 August 1998, prior to receiving those questions, but furnished a report after the receipt of the solicitor’s instructions. He wrote:
“(a)Mr Sinko told me that he had come to see me in order to try to fix up his affairs as he was worried that some property had been stolen from him and that he had made a will to benefit a person who was an employee at the place where he lived and that ‘she made me sign some papers ... I didn’t have my glasses ... she took some money from me’.
When I asked him what he wanted to do with his money, he said that he wanted to make a will to donate all of his money to Rita Herbert whom he described as his ‘best friend’ and a person whom he employed when he was working at MINDA Inc as a manager. I asked him whether he knew how much money and property he owned and he said that he has no property and was not sure exactly how much money he had. I asked him if it would have been more than a million dollars and he said ‘no, not that much’. I progressively went down in value until we got to $100,000. He said that this would have been about the amount that he thinks he owns.
(b)In regard to the appreciation of Mr Sinko with regard to claims upon his estate he said that he has no relatives in Australia and really has only one good friend, Rita Herbert, described above. He said that Rita is an ‘honest woman’ and I ‘want to give her what’s left ... there isn’t much’.
In reference to a previous will and the interaction between he (sic) and the woman he described as the ‘cunning woman who took a lot of my money’, he said ‘I want to give her a good kick’. He was clearly irritated by the view that this employee of the place where he lived had duped him into making a will for her benefit and had taken money from him.
It is my opinion that Mr Sinko has adequate understanding of the claims upon his estate to which he should give effect. While it is clear that there are limitations in his cognitive intellectual ability which affects his memory, it is my view that this does not affect his judgment as to his sense of right and does not affect his ability to judge his affections. His ability to exercise his natural faculties is sufficient to make this judgment.”
Mr Walsh was called. Prior to interviewing the testator he spoke to the testator’s solicitor and the plaintiff to obtain ‘as much information on the background as possible’.
Speaking of his interview with the plaintiff he said:
“Then she said she believed he was being abused and was under undue influence and she was called by the owner of the retirement village, that she had had concerns and that she had been appointed his guardian for administration and I didn’t want to take over his affairs, they asked him and – cleaning lady was a lady called Kandy, who apparently had taken him down to the bank and got him to withdraw some money and she also mentioned that she was aware that Mr Sinko had suffered a stroke in July 1997 in Flinders Medical Centre and had affected his intellect for a while but this was now improving. That was really all the information I got from her, then I spoke to Mr Sinko.”
Mr Walsh’s report does not mention having seen Mrs Herbert, even though he knew that it was alleged that the testator had been subjected to the influence of another woman and that the testator was wanting to write a will making the plaintiff his sole beneficiary.
I think Mr Walsh’s failure to record his interview with the plaintiff is a serious omission. He admitted in his evidence that with the benefit of hindsight it was obvious that he should have done so.
Mr Walsh did not carry out any testing of any kind. He merely relied upon his interview for offering his opinion. He made no enquiries of the testator’s solicitor or the plaintiff of their recent experiences with the testator. He did not obtain the testator’s medical history. If he had known that the testator had been diagnosed as suffering from dementia and Alzheimer’s disease (which later evidence established) his opinion may have been different. If he had known that a diagnosis of paranoia had been made that might have affected his opinion.
Mr Walsh, is a neuro-psychologist, not a medical practitioner, who spent no more than 45 minutes with the testator. Apart from being aware that the testator had had a stroke in mid 1997, he had no knowledge of the testator’s medical history. When it was put to him specifically that the testator had been diagnosed in the Flinders Medical Centre in December 1997 with senile dementia, Mr Walsh offered the opinion that the diagnosis may have been incorrect. He made that suggestion without ever having read the Flinders Medical Centre case notes.
At the end of his examination plaintiff’s counsel asked:
“Q.In the light of what’s been put to you today in terms of the diagnosis that had been made, do you qualify your opinion as expressed in your letter of 24 August 1998 in any way.
A.Well the qualification that I’m making is anything is – without knowledge of information which was likely to have made my enquiries more – significantly included in the enquiries were his – about his medical officially, and also enquiries that might have been made through formal assessment. So it means that the qualification has been said.”
I reject Mr Walsh’s opinion. He failed to make appropriate enquiries or to have enquiries made to ascertain the testator’s medical condition. He failed to carry out basic testing. The assumptions upon which his opinion is based have not been established.
On 31 August 1998 a further will was presented to the testator and it was executed but not by the testator.
The attestation clause is in the following terms:
“Signed by the said Stephen John Sinko the testator being partially blind and unable to read this will, Peter John Scerri of 576 Tapleys Hill Road, Fulham 5024, Solicitor read this will to him in the presence of Nikki Gagliardi of 576 Tapleys Hill Road, Fulham 5024 and then the testator stated that he knew and approved its contents. Then the said Peter John Scerri signed the will with the name of the testator at his request and in the presence of the testator on both of us, all persons being present at the same time we attested that signature in the presence of the testator and of each other.”
The testator made no mark whatsoever upon the will. The solicitor executed the will apparently according to the attestation clause, at the testator’s request, after the testator stated that he knew and approved its contents.
The will was executed in the presence of the plaintiff who was named as sole beneficiary.
Most of the matters to which I have referred only became clear at the first hearing during the solicitor’s evidence when he was called to prove the execution of the wills.
On that first hearing I was concerned that on every occasion that the testator consulted the solicitor in relation to the preparation or execution of his will, except on one occasion, the proposed executrix and beneficiary was present.
It was at least unwise for her to be present whilst the solicitor was communicating directly with the testator.
It has to be remembered that the solicitor was first instructed in circumstances where it was asserted to him that some other woman had wrongly influenced the testator to execute a will in her favour. He was aware that it was also asserted that the other woman had duped him into giving her money. When the solicitor first saw the testator he knew the testator had a mental disability. Shortly after the first conference the testator became subject to a guardianship order under the Guardianship and Administration Act 1993 (SA). Before he executed the first will drawn by the solicitor (the December 1997 will) the testator suffered a stroke which rendered him partially blind and which may or may not have caused other physical and mental defects. His condition had not apparently improved between the execution of the first and second wills.
The testator’s estate is not large; indeed it is quite modest. However, having heard the solicitor’s evidence, I indicated to counsel that I needed further evidence as to the circumstances in which the wills were executed and some evidence of the testator’s health at the times when the wills were executed.
Whilst I had no reason to suspect, and I said so at the time, that Mrs Herbert had been guilty of any inappropriate or improper behaviour it seemed to me that I had an obligation to ensure that the wills executed in December 1997 and August 1998 represented the testamentary wishes of the testator and that he was in a position to understand the effect of those dispositions.
The Court has to be “vigilant and zealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased”: Barry v Butlin (1838) 2 Moore 480 at 482; 12 ER 1089 at 1090. When the plaintiff was given leave to amend the proceedings to propound the January 1990 will it was necessary to broaden the enquiry into the circumstances surrounding the execution of the earlier two wills.
There is no suggestion that the testator lacked testamentary capacity when he executed the January 1990 will. Nor is there any suggestion that he was not fully aware of the contents of that will or that the terms of that will did not reflect his then intentions. That will was executed in accordance with the formalities of the Wills Act 1936 (SA). An affidavit of a subscribing witness, Ms Hodges, was tendered to establish that matter.
The only reason that the Court would not pronounce in favour of that will and grant the plaintiff probate of that will would be if the Court were satisfied that one or more of the three later wills were validly executed in circumstances where the testator had testamentary capacity and the instruments properly represented the testator’s wishes. Of course no one seeks to propound the July 1997 will but it would still be appropriate to consider the testator’s mental condition and the circumstances surrounding the execution of that will.
Not only was the July 1997 will not propounded, but in his closing submissions, the plaintiff’s counsel did not seek to propound the December 1997 will, because of the evidence of the testator’s mental condition at the time of its execution. In the end result the plaintiff’s counsel sought a pronouncement in favour of the August 1998 will but alternatively a pronouncement in favour of the January 1990 will.
As I have already indicated neither defendant objected to the orders sought.
Mrs Herbert was previously married. Her first husband, Mr Khorasane, died in 1986. She first met the testator in 1967 when she applied for and obtained a job as his secretary. He worked at Minda Inc.
She remained his secretary until 1980 when he retired. She retired in 1981.
When she first met the testator he was married. His wife died in about 1982.
The plaintiff and the testator were good friends. They visited each other regularly. The plaintiff had two children and two grandchildren. The testator was close to all of her descendants. He gave her granddaughters substantial amounts of money.
The testator had had an eventful life and in particular during the 2nd World War. He was a member of the British Secret Service in Yugoslavia. The plaintiff was fully acquainted with his war time experiences.
The plaintiff had noticed paranoid traits in the testator over a number of years. The paranoia seemed to be associated with his war time experiences. Those traits became more evident as he became older and by 1997 had become quite pronounced.
The plaintiff was a somewhat garrulous witness who was inclined not to answer questions directly. I think that was due to a combination of factors, none of which affected her reliability. English is not her first language. She was anxious to tell her story but I think she was nervous. However, I formed the clear impression that she was an honest and reliable witness and I accept her evidence in its entirety. I prefer her evidence to that of the medical practitioners. Her evidence is in many respects inconsistent with that of Mr Walsh. I accept her evidence in preference to his and I reject his opinions where it conflicts or is inconsistent with her evidence.
I find that she and the testator had had a long and close friendship which persisted up until his death. I accept that the testator suffered paranoia for a number of years and that paranoia traits were more evident by 1997 and continued to become even more evident after that time and until his death.
Ms Grey did not, of course, give evidence. The circumstances surrounding the execution of the July 1997 will are clouded. There is no doubt that the testator later complained of Ms Grey’s conduct which had led to him changing his will to benefit her. However, in the absence of any first hand evidence from either of the two interested parties, the testator and Ms Grey, it would be inappropriate to make any findings about her conduct. It would also be unnecessary because Ms Grey does not seek to have that will admitted to Probate.
An affidavit of Kym Phillip Hand, solicitor, was tendered. Mr Hand drew the July 1997 will. On 20 June 1997 the testator, accompanied by Ms Grey attended on Mr Hand. He told Mr Hand that he was not happy with Mrs Herbert. Mr Hand’s file note shows the exchange between the testator and the solicitor:
“KPH went through the normal instruction process. When it got to the question as to whom he wished to leave his estate to, his did seem non committal. He said the person who was looking after him last. KPH pointed out we had to have some names. He didn’t really seem to give an answer. At this point Mrs Grey said words to the effect ‘what about me’, to which he agreed.”
Mr Hand was, naturally enough, concerned about the integrity of the instructions being given him.
He advised the testator “to get a medical certificate as to his capacity”.
On 25 June Dr Steele gave a certificate that the testator was physically and constitutionally sound and “capable of changing his will”.
On 27 June the testator accompanied by Ms Grey consulted Mr Hand. Mr Hand asked Ms Grey to leave them alone. The testator told Mr Hand of his friendship with Mrs Herbert but that she had pushed him into a Retirement Village. He said that he had broken off contact with Mrs Herbert whom he believed “may be with the Jewish Secret Service”.
He instructed Mr Hand that he wanted to leave all his estate to Ms Grey and in the event that she predeceased him, her daughter. There is no evidence that the testator had ever met Ms Grey’s daughter.
On 2 July Ms Grey telephoned Mr Hand. His file note reads:
“Kandy Grey rang on 2/7/97. She said that Mr Sinko said he wanted to have his will signed urgently. KPH asked how urgent. Unfortunately KPH’s secretary is away today – we could have it done today if it was really urgent otherwise is tomorrow satisfactory? She spoke to him and he said he would like it signed as soon as possible, preferably today. KPH did speak to him and he said he had been sick last night and therefore was worried and wants the will done. A time was arranged for 3.00 pm today.”
Mr Hand saw the testator later that day. His file note records the matters discussed.
“KPH attending on Mr Sinko on 2/7/97. He telephoned that morning to say that he wanted to sign his will urgently because of illness. He came in and said that he hadn’t slept at all last night.
He was brought to the appointment by Mrs Grey. KPH made her wait in reception while spoke to him alone.
Went through the will with him and he confirmed the terms.
When telephoned him earlier, had asked if Sandra Lee (called Sandra) was over 18 and he said he thought she was. However on asking Mrs Grey was told that she was 15 years.
Therefore amended the will.
Amended clause 2 to provide that Sandra Lee could only be executrix if attained 18 years. Also at first changed clause 4 to provide that Sandra Lee only took on attaining 18 years. However on discussing with him he has no-one else to leave it to and therefore the age of 18 years was not inserted in clause 4.
He again repeated that he had no-one else to leave everything to, that Mrs Herbert was going to marry him but then dropped him for an English academic.
Confirmed several times with him but he wished to leave his will this way and he confirmed he did and signed the will.
When speaking to Mrs Grey concerning Sandra, she made a comment that she found it unusual that she had to wait outside. KPH explained that he wanted this to be done as he felt it appropriate for Mr Sinko to give instructions without her present, particularly as she was the principal beneficiary. She made the comment that this hadn’t happened to her in the past, that in the past she had made a will with a close friend who wanted to leave everything to her rather than the family, and she had been allowed in. KPH said he felt that what he was doing was appropriate, particularly where she was the principal beneficiary.
Mentioned to Mr Sinko that on quickly looking could not find the power of attorney. He said that previously Mr Lee had acted for him. We had not prepared the power of attorney yet as we were still wishing to locate the earlier one to revoke.”
Two weeks later Mr Hand wrote to the testator seeking the previous Power of Attorney. He asked for Mrs Khorasane’s (Mrs Herbert) address so that he might write to her for a copy.
On 16 July the testator instructed Mr Hand’s secretary that he did not want Mrs Herbert contacted. He and Ms Grey telephoned Mr Hand again on 21 July saying he wanted nothing else done and seeking a bill. He told Mr Hand this would “help him psychologically”.
On the resumed hearing the plaintiff tendered evidence of the testator’s medical condition between June/July 1997 and his death.
On a Sunday night in 1997 the plaintiff was contacted by Mrs Gannon who asked her to come to the retirement centre at which the testator then lived because he was very agitated about his relationship with another person, Ms Grey and about papers which he had signed.
She told Mrs Gannon she would come the next day. However the testator was admitted to the Flinders Medical Centre that day.
On 31 July 1997, the testator was admitted to Flinders Medical Centre with an ‘unsteady gait, slurred speech [and] confusion’. He was diagnosed as having suffered a stroke and various secondary diagnoses were made by an undisclosed medical practitioner, including “explosive personality disorder, organic brain syndrome (chronic) … paranoid personality disorder’.
The plaintiff visited him in hospital. He told her he had made another will. She initiated contact with the testator’s solicitor and sought for protection orders under the Guardianship Act.
Dr Steele was a general medical practitioner in the Glenelg Family Medical Practice from 1990 until his retirement in 1998 and the testator’s general practitioner between 1990 and 1997.
The testator had visited Dr Steele on 24 July 1997, a week before he was admitted to hospital. (I have already mentioned Dr Steele’s report of 25 June.) Dr Steele had received a report which he included in the testator’s medical records that the testator had early dementia and was ‘incapable of managing his affairs’. Notwithstanding the contents of that report, Dr Steele did not regard the testator as having any significant mental incapacity. Indeed, Dr Steele was satisfied at the time that the testator had testamentary capacity. Immediately before an entry in the testator’s medical records for that day, Dr Steele recorded that the Testator was a ‘fit person to change will’.
Dr Steele said, in evidence, in response to a question asked by the plaintiff’s counsel, that ‘organic brain syndrome (chronic) or ‘senile dementia’ has an insidious onset, and that whilst the cerebral event may have made the symptoms more obvious, the testator would have been suffering from senile dementia when he consulted Dr Steele in June, and therefore July. However, later Dr Steele said that if the testator had been suffering (as at June 1997) from the disorders detailed in the secondary diagnoses made at Flinders Medical Centre, he would have expected to have seen ‘evidence of them then because of their insidious onset’.
Dr Steele’s later evidence was that any senile dementia or paranoid disorder might have been prevalent in June 1997, but symptoms might not have been exhibited by the testator to Dr Steele because of the trust placed in him by the testator. His evidence was somewhat inconsistent.
He was discharged from Flinders Medical Centre on 21 August.
Counsel for the plaintiff contended that the testator was affected by delusions when the July 1997 will was executed. There is evidence that the testator, in July 1997 had not had contact with the Herberts for a very long time, and thought that Mrs Herbert and her husband were trying to poison him, and that Mr Herbert was a member of the Jewish Secret Service. It was submitted that the delusions operated to affect the testator’s testamentary intentions.
The evidence of dementia and paranoia in this case predates the execution of the July 1997 will. The evidence suggests that the testator was suffering from delusions at the time. Notwithstanding Dr Steele’s evidence, I am not satisfied that the testator had testamentary capacity at the time of execution of the July will.
As I have already said, Ms Grey has indicated that she has no intention of seeking to prove the July 1997 will. If she had sought to prove the will, on the evidence presently before me, I would not pronounce in its favour.
For the reasons already given, I make no other findings in relation to the circumstances surrounding the execution of the July 1997 will.
The testator was again admitted to the Flinders Medical Centre on 20 December 1997. A letter written by the Manager of the establishment in which he then resided stated that he “seems more confused that normal as Mr Sinko does have dementia”. He had suffered a fall earlier that day. On admission he was diagnosed as suffering from senile dementia with delirium, and secondary diagnoses of Alzheimer’s disease and B-complex deficiency were made. The Flinders Medical Centre synopsis of his admission states:
“Mr Sinko presented to FMC with a history of having become acutely confused overnight, along with a history of recent falls. He has a long history of cognitive decline particularly following a TIA [transient ischaemic attack] in July 1997.”
The testator remained in hospital for 11 days during which the December 1997 will was executed.
On 21 December nursing staff recorded the testator as being “confused”.
On 23 December nursing staff noted “wandering times although settles when nursing staff returns him to his room”.
On the same day social workers recommended that on his release he be housed in a “Dementia Hostel” and “given high care approval”. It was on this day that he executed the December 1997 will in the circumstances to which I have already referred.
Dr Chittleborough was first consulted by the testator in January 1998, after the testator had taken up residence in St Basil’s Nursing home, following upon his discharge from the Flinders Medical Centre in 1997. Dr Chittleborough saw the testator at St Basil’s on 23 occasions between January 1998 and June 1999.
At that initial consultation in January 1998, Dr Chittleborough diagnosed the testator as having ‘mild dementia’.
That diagnosis is consistent with the diagnosis contained in the Flinders Medical Centre records.
During January of that year, Dr Chittleborough and an occupational therapist at St Basils recorded various incidents supportive of the diagnosis of dementia. There were reports of the testator dressing in very heavy clothing on a hot day; that he was pre-occupied with ideas of having been kidnapped; that he believed at one point that he was living in the vicinity of Perth ‘with a friend who was trying to push him into prison’.
I am not prepared to find that Mr Sinko had testamentary capacity when the December 1997 will was executed. In any event, the plaintiff’s counsel did not seek to argue that the testator had testamentary capacity as at the date of the December 1997 will. He recognised the difficulties associated with the medical evidence of the testator’s mental condition as at the date of execution of the December 1997 will.
Dr Chittleborough’s evidence was that the testator’s mental condition deteriorated ‘as the months went by after about September of 1998’. Dr Chittleborough saw the testator on 31 August 1998. Counsel for the plaintiff examined Dr Chittleborough:
“Q.As at 31 August 1998 what medical conditions was he suffering from in your opinion.
A.I believe he had some measure of dementia, certainly of confusion and disorientation, of at least mild dementia, he demonstrated significant paranoia from time to time and it’s hard to know whether the paranoia was just a – of his dementia and his difficult life in years gone by or whether that represented an actual psychiatric illness …
Q. Did he exhibit the usual signs of paranoia of conspiracy and the like.
A. He did.
Q. Was he exhibiting those signs at that time.
AThose were signs that fluctuated a bit in those six months or so leading up to August 1998 …”
It was the plaintiff’s case that the testator’s conditions of dementia and paranoia were ‘fluctuating conditions’ and that ‘on some days he was good and some days he was bad’. The plaintiff contended that the August 1998 will was executed on a day on which the testator was lucid. The plaintiff submitted that St Basil’s nursing home notes suggest that August was a settled month for the testator.
The August 1998 will is in the same terms as a will executed by the testator only eight months earlier. That might be itself a sign of a lack of lucidity. The evidence is that at the time of execution of the August 1998 will, the testator was suffering from senile dementia and paranoia. In my opinion, the nursing home notes say nothing about the testator’s capacity to understand the purport and effect of the will he was asked to execute. There is no evidence to suggest that 31 August 1998 was a particularly “good” day for the testator in terms of his testamentary capacity.
The will was simple, and there was evidence that at least at 11 August 1998, the testator was cognisant of the size of his estate. However, accepting that the impact of the dementia on the testator’s testamentary capacity fluctuated, it is not clear on the evidence that the testator had capacity when the will was executed on 31 August 1998. My suspicion regarding the capacity of the testator at the time has not been removed by the evidence adduced by the plaintiff. In those circumstances, it is unnecessary for me to consider whether the will was properly executed.
I am not satisfied that when the will was executed on 31 August 1998, the testator had testamentary capacity.
As mentioned, an amended summons was filed on 10 July 2003. The amended summons seeks, in the alternative to pronouncement of the December 1997 and August 1998 wills, pronouncement of the January 1990 will in solemn form.
On the evidence before me, I find that the January 1990 will was regularly executed in accordance with the Wills Act. There is no suggestion that the testator lacked testamentary capacity as far back as January 1990. In those circumstances, I find that the will executed by Stephen Sinko on 16 January 1990 discloses that person’s final testamentary wishes and should be admitted to probate in solemn form.
I will hear the plaintiff’s counsel as to the precise terms of the orders including costs.
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