Hyslop Estate: Hyslop v Hyslop

[2006] NSWSC 1237

CITATION:	Hyslop Estate - Hyslop v Hyslop & Ors [2006] NSWSC 1237
HEARING DATE(S):	30 and 31 October, 1 and 2 November 2006
JUDGMENT DATE :	22 November 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
DECISION:	Probate granted of Second Will executed on 26 July 2002.
CATCHWORDS:	PROBATE – TESTAMENTARY CAPACITY – Deceased suffering schizophrenia and other major illnesses – whether Deceased had testamentary capacity at time of execution of three wills – whether Deceased knew and approved contents.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW) Protected Estates Act 1983 (NSW)
CASES CITED:	- Banks v Goodfellow (1870) LR 5 QB 549 - Bull v Fulton (1942) 66 CLR 295 - Timbury v Coffee (1941) 66 CLR 277 - Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267
PARTIES:	Robert James Hyslop – Plaintiff/1st Cross Defendant John Owen Hyslop – First Defendant/1st Cross Claimant James Michael Hyslop – Second Defendant/2nd Cross Claimant Fay Hyslop – Third Defendant/2nd Cross Defendant
FILE NUMBER(S):	SC 107502/03
COUNSEL:	C.P. Locke – Plaintiff/1st Cross Defendant L.J. Ellison SC – First & Second Defendants/Cross Claimants No appearance – Third Defendant/2nd Cross Defendant
SOLICITORS:	Oliveri Attorneys – Plaintiff/1st Cross Defendant John Fisicaro & Co – First & Second Defendants/Cross Claimants No appearance – Third Defendant/2nd Cross Defendant

107502/03 Hyslop Estate : Hyslop v Hyslop & Ors

JUDGMENT - 22 November, 2006

Introduction and issues

1    Joyce Audrey Hyslop, a widow, died on 6 March 2003, aged seventy-three years. She had made a number of wills in her lifetime; the last was made on 3 March 2003, three days before her death. She left a small estate – some $271,000 – but her testamentary dispositions have been the cause of bitter dispute within her family. 2    The Deceased had six children, all of whom survived her. For convenience and without intending any disrespect, I will refer to the Deceased’s children by their first names: John, Robert, Linda, Yvonne, Pauline and James. 3    By the time of her death, the Deceased had had a long history of schizophrenia. When she died she had glaucoma which severely impaired her vision. She was suffering from metastatic breast cancer and diabetes. The essential issues in this case are whether, at the time she made any of the wills in contest, she had testamentary capacity and, if she did, whether she knew and approved of the contents of the wills and whether any will was procured by unconscionable conduct. 4    The Deceased’s second son, Robert, is the Plaintiff in these proceedings. By his Statement of Claim he seeks grant of probate in solemn form of the Deceased’s will dated 3 March 2003 (“the 2003 Will”). He and a granddaughter of the Deceased, Fay Hyslop, are named as executors of that will. Fay Hyslop has been joined as a defendant but she has played no active part in the proceedings. 5    Under the 2003 Will, Robert is given a right to reside in the Deceased’s property at Leumeah as long as he wishes and thereafter the property is to be sold and the proceeds divided between the Deceased’s grandchildren. The Leumeah property is the only substantial asset of the Deceased’s estate. The proceeds from the Deceased’s investments are given to the Catholic Church. 6    Alternatively, Robert seeks the grant of probate in solemn form of the Deceased’s will dated 12 November 1998 (“the 1998 Will”). In this will, Robert is the sole executor and beneficiary of the estate. 7    The deceased made two wills on 26 July 2002, one in the morning and one in the afternoon. I will refer to those wills “the First 2002 Will” and “the Second 2002 Will”. In the First 2002 Will, the Public Trustee is appointed as executor and the Deceased’s estate is divided equally amongst her six children. In the Second 2002 Will, John and James are appointed executors and the estate is divided equally amongst the six children. John and James have been joined as defendants to Robert’s Statement of Claim. 8    By their Defence, John and James allege that when the Deceased executed the 2003 Will she lacked testamentary capacity. They allege further that Robert “harassed” and unduly influenced the Deceased to make that will. They do not admit the validity of the 1998 Will but they do not positively assert its invalidity for any reason. 9    By their Cross Claim, John and James seek grant of probate in solemn form to them of the Second 2002 Will or, in the alternative, grant of probate of the First 2002 Will to the Public Trustee. They also seek an order that Robert give vacant possession of the Leumeah property, in which he is presently living. 10    By his Defence to the Cross Claim, Robert alleges that:


– the Deceased lacked testamentary capacity at the time she signed the First 2002 and Second 2002 Wills;

– the Deceased did not assent to the terms of either of the 2002 Wills because she was unable to read for herself the terms of those Wills and they were not read out to her before she signed the documents;

– the Second 2002 Will propounded by John and James in incomplete in that the second of three pages is missing.

11 In opposition to the claim by John and James for vacant possession of the Leumeah property, Robert says by his Defence to the Cross Claim that he is entitled to occupy the property pursuant to a binding and enforceable licence agreement made between himself and the Deceased in about August 1998 and evidenced in writing by a document signed by the Deceased on 26 January 2003. The terms of the alleged contractual licence are that the Deceased promised, in consideration of Robert providing help and care for the Deceased, that she would reimburse him for all expenses incurred by him in doing so and would allow him to reside in the Leumeah property for as long as he wished, at no expense. 12 John and James filed no Reply to Robert’s Defence to the Cross Claim. It was not until the final day of the trial, in the course of his submissions, that Robert’s Counsel confirmed that the defence to the claim for possession founded on the alleged contractual licence would be pressed. Previously, Counsel had been equivocal about whether it would be pressed. Counsel for John and James then sought to submit that the alleged contractual licence had been procured by Robert’s undue influence. I pointed out that that claim had not been pleaded. Counsel for Robert opposed leave being granted to John and James to file a Reply raising such a claim at that stage in the trial on the ground that, had the claim been properly pleaded, he would have conducted the case differently. 13 It seemed to me that as the capacity of the Deceased had been so much in issue in the proceedings, it would be a denial of justice to prevent John and James from contesting the validity of the alleged contractual licence by reason of their failure to file a Reply to Robert’s Defence to the Cross Claim, if prejudice to Robert could be appropriately cured by a costs order. I determined to give leave to file such a Reply but ordered that the validity of the alleged contractual licence put in issue by the Reply be determined as a separate question under UCPR 28.4 and ordered that that question be tried after my determination of the issues pleaded as to the validity of the Deceased’s wills. In that way the issue of the validity of the Deceased’s testamentary dispositions, upon which the parties had focused, could be determined now; if the 2003 Will were granted probate, the validity of the alleged contractual licence would no longer require determination as the 2003 Will gives Robert the same right of occupancy as does the alleged contractual licence. 14 Accordingly, this judgment is concerned only with the validity of the 2002 and the 2003 Wills. 15 John and James have taken the position that if the 1998 Will is valid – they do not admit its validity but do not actively dispute it – then that Will was revoked by the First 2002 Will which was, in turn, revoked by the Second 2002 Will. They assert that the 2003 Will was invalid. 16 The issues for determination at this stage of the proceedings are:


– did the Deceased have testamentary capacity when she executed the 2003 Will;

– was the 2003 Will procured by unconscionable conduct on the part of Robert;

– if the 2003 Will is not valid and has not revoked prior wills:

did the Deceased have testamentary capacity when she executed the Second 2002 Will;

if so, did the Deceased know and approve the contents of the Second 2002 Will when she signed it;

should the Second 2002 Will be admitted to probate;

– if the First and Second 2002 Wills are not valid, should the 1998 Will be admitted to probate.



Overview of the facts

17    The Deceased was born in 1929. She was married in 1950 and there were six children of the marriage. Her husband suffered from depression and was hospitalised on occasion. In mid-1963 the Deceased was diagnosed with paranoid schizophrenia. Her condition was controllable if she took medication. Sometimes she refused and her behaviour became difficult. 18    In the mid-1970s the Deceased began to lose her sight because of glaucoma. However, she did not become completely blind. I will return to the issue of her visual impairment shortly. 19    The Deceased’s husband died in November 1990. With the benefit of her husband’s superannuation payment she purchased a small villa at Leumeah in which she then lived. John looked after her financial affairs. In about September 1998 Robert, who had been living in the United States of America for about two years, returned and began to live with the Deceased in the Leumeah property. He says that he did so at the request of the Deceased, who wished him to take care of her. Robert has lived in the Leumeah property ever since. 20    Robert took over management of the Deceased’s financial affairs from John. This led to considerable acrimony between Robert and his siblings, but most particularly with John. 21    In November 1998, Robert arranged for the Deceased to make a will. That will left the whole of the Deceased’s estate to Robert. 22    In November 2000, John made an application to the Guardianship Tribunal for an order under the Guardianship Act 1987 (NSW) in respect of the Deceased. On 14 March 2001, the Tribunal made a Financial Management Order under the Protected Estates Act 1983 (NSW) appointing the Protective Commissioner to the management of the Deceased’s estate, subject to review after six months. The reasons of the Tribunal, which were admitted into evidence without objection, record the following relevant matters:


– the Deceased’s general practitioner, in a report dated 2 February 2001, noted that as a result of the Deceased’s schizophrenia she was not capable of making rational decisions regarding her financial affairs, that she had delusions that one of her daughters was a prostitute, and that Robert was poisoning her and stealing her money, and that it would be prudent for some formal protection to be given for the management of her money;

– the Deceased gave evidence to the Tribunal saying, amongst other things, that Robert had returned from the USA to care for her and that he did so “out of love” ;

– there was considerable conflict amongst the members of the Deceased’s family, particularly between John and Robert;

– the Deceased was being cared for well by Robert in the Leumeah property and there was no need to appoint a guardian as to where she should reside;

– the Deceased was about to receive a distribution from her late mother’s estate of between $50,000 and $70,000;

– Robert confirmed to the Tribunal that he had used $4,000 of the Deceased’s money to develop a product which he had invented and which he believed would make him wealthy;

– Robert told the Tribunal that he needed additional funds for his invention and thought that it would be a good investment for the Deceased to have her inheritance used for that purpose;

– the Deceased told the Tribunal that she “had money before Robert came home but it is all gone” ;

– the Deceased told the Tribunal that the solicitor for her mother’s estate, whom she identified, had indicated that she would receive between $50,000 and $70,000 which, she said, she would like to divide between her children;

– the Deceased agreed that the amount of money she would shortly receive could be at risk if a management order were not in place;

– the Tribunal was satisfied by the Deceased’s evidence “that she is vulnerable and unlikely to oppose her son Robert’s proposals regarding her lump sum inheritance” ;

– there was a need to place the Deceased’s finances under formal management;

– the management of the Deceased’s property and affairs should be committed to the management of the Protective Commissioner.

23    In early 2002, according to James, the Deceased requested him and John to arrange for her to make a will ensuring that all her children received an equal share in her estate. John and James went to see a solicitor, Mr Brian Gorman, for whom James’ daughter, Belinda, worked. They instructed him to prepare a will for the Deceased leaving her estate to all her children equally and appointing them as executors. Nothing further was done about this will for some time. 24    In July 2002, the Deceased was diagnosed with breast cancer. It appeared that she might have only a short time to live. According to John, the Deceased asked him to arrange for her to make a will leaving her estate to her children equally. John suggested the Public Trustee as executor. 25    On 25 July 2002, the Deceased was admitted to Liverpool Hospital. She was gravely ill, with metastatic breast cancer, bone marrow cancer, diabetes, paranoid schizophrenia, osteoarthritis, anaemia and glaucoma. I will return to the Deceased’s medical condition in more detail later. 26    Early on the morning of 26 July, John and James attended the office of the Public Trustee at Liverpool and saw the branch manager, Mr John Gardiner. They told Mr Gardiner that the Deceased was gravely ill and wanted to make a will leaving her estate equally among her six children and appointing the Public Trustee as executor. Mr Gardiner prepared a short will on the basis of these instructions and, at about 11am, went to see the Deceased in Liverpool Hospital with another Public Trustee officer, Ms Adragna, to act as witness. Mr Gardiner says that he interviewed the Deceased and satisfied himself that he she had testamentary capacity and that the will he had prepared was in accordance with her instructions. He and Ms Adragna then witnessed the Deceased’s signature to the will. 27    When the Deceased was admitted to hospital, James rang his daughter, Belinda, at the office of Mr Gorman and asked her to arrange for a will to be prepared for the Deceased, leaving her estate to her six children equally and appointing John and himself as executors. Belinda procured such a will to be prepared, using an office precedent. 28    At about 2pm on 26 July, James, Belinda, Linda (one of the Deceased’s children) and Jennifer Gurney (Linda’s daughter) attended at the Deceased’s bedside in Liverpool Hospital. In circumstances to which I will come shortly, the Deceased signed the will which had been prepared by Belinda that morning. It contained three pages. The second page cannot now be found but the first page contains all of the dispositive provisions. The office precedent from which the will was taken shows that the missing second page contained usual machinery provisions. 29    The Deceased was discharged from Liverpool Hospital on 12 August 2002 and was transferred to the Queen Victoria Memorial Nursing Home at Thirlmere.


Condition of Deceased at time of 2003 Will

30    Clinical notes show that when the Deceased was admitted to the Queen Victoria Memorial Nursing Home she was alert and talkative. She could get out of bed and shower, sit in a chair, and take part in activities. She seemed to make herself popular with the nursing staff. She could use the telephone herself, making some telephone calls on 4 September 2002. 31    However, some time in September, she began to refuse medication and her behaviour became difficult. She began to manifest delusions, such as that she was being poisoned and that nursing staff were stealing from her. 32    By November 2002, clinical notes record further signs of mental deterioration. The Deceased became more insistent that the nursing staff were trying to kill her with poison. By early December, she was described as disoriented, irrational and confused. 33    By early January 2003, the Deceased was experiencing increasing pain from her cancer. There was a brief improvement for a few days in the middle of January but, according to the Defendants’ medical expert, Dr Bell, that is part of the typical course followed by those dying of cancer. 34    The clinical notes record the Deceased’s steady deterioration through February 2003. On 1 March the Deceased was refusing medication; on 2 March, she was not eating much but was drinking well; on 3 March a note says “spoke to [the Deceased], she didn’t want to vote in the State election” . This remark has been relied upon by the Defendants as demonstrating that the Deceased was aware of what was going on around her. I cannot read the evidence that way. It is possible – indeed highly probable – that this note records a question put to the Deceased by staff, eliciting merely a negative response from the Deceased. I cannot take this notice as demonstrating that the Deceased herself was aware on 3 March that a State election was taking place. 35    The Deceased’s children visited her regularly during the last weeks of her life. Yvonne visited her about twice a week during the last month and every day during the last week. Yvonne said that in the last week, the Deceased could hardly speak, could not move herself, could not lift her arms and legs, and slept a lot. To her observation during these last few days, the Deceased could not have understood any explanation about the disposition of her estate and would not have had the strength to hold a pen to sign her name. 36    Pauline gave evidence that she visited the Deceased about five days before her death. She said that the Deceased could barely talk, was very weak, could not do anything for herself, and appeared to be in pain. She refused to eat or drink. To her observation at the time, the Deceased could not have understood any explanation about the disposition of her estate. 37    Linda gave evidence that she visited the Deceased about twice a day in the last week of her life. She said that the Deceased was not very responsive and was in pain and often did not realise that Linda was present. About three days before her death, the Deceased was very weak, she could not lift her head to drink and was not capable of having a conversation. 38    John gave evidence of his observations of the Deceased in the last week of her life to the same effect as his sisters’ evidence. So did James.


Robert’s evidence about the 2003 Will

39    In his affidavit, Robert said nothing about the Deceased’s condition when she made the 2003 Will – not even that he was present when she did so. With leave, Robert gave the following evidence in chief: T13.1-16.42. 40    On 3 March 2003, Robert arrived at the nursing home at about 5pm. He gave the Deceased some food to eat – some dessert. The Deceased smiled at him and asked him if he would make her a new will. He asked her what she wanted to say. She said that she had remembered that her grandchildren had not received anything from her late father’s estate and said “my father forgot about some of his grandchildren” . She wanted Robert to make sure that the grandchildren had received something from her estate that she had inherited from her father’s estate. She wanted the grandchildren to receive equal shares. She said that she did not think that she would live much longer and wanted Robert to make her will that day. Robert then wrote down what she asked him to write down. He had a blank A4 sheet of paper and a pen with him. Robert wrote down the Deceased’s instructions and read the will back to her. He asked two ladies who happened to be walking past the Deceased’s bed to witness the will. He then read the will again to the Deceased in the presence of the two ladies. The Deceased was sitting up in bed. She signed the will in the presence of the two ladies. 41    In cross examination, Robert gave a markedly different account of what happened. 42    He said that he did not read the will back to the Deceased twice, once after he had written it and once in the presence of the witnesses but, rather, several times: the Deceased would say a few words, he would write them and would recite them back to her. When the will was completed, he read it back to her: T17.8-17.14. 43    At first Robert said that he could not remember when he first read the whole document through to the Deceased: T17.45-.47. Then he said: “I read it back probably about four times. When I completed it I read the whole thing back to her again but during the dictation I read it back to her as I wrote these words” . At T22.42-T23.11, Robert gave this evidence:

“Q. You have told us then everything that your mother told you that day about this will?
A. Yes.

Q. And you have told the Court everything you did?
A. Yes.

Q. And you are sure you are one hundred per cent in your recollection?
A. Yes.

Q. You left nothing out?
A. I can't think of anything.

Q. You have included nothing
A. No.
Q. … that did not happen?
A. Yes, that's right.

Q. You say you wrote down what your mother told you?
A. Yes.

Q. And only what she told you?
A. Yes.

Q. You are sure of that?
A. Yes.”
44    Robert admitted that he had kept the 2003 Will secret from the family, his solicitors and the Court until the commencement of these proceedings, more than two years after the Deceased’s death. He was asked whether he had appreciated that the 2003 Will, which left him only a right to occupy the Deceased’s Leumeah property, was less favourable to him than the 1998 Will, which left him the whole of the Deceased’s estate. He then gave this evidence about the 2003 Will:
“A. When my mother asked me to write that will she did not really want me to live in the house for the rest of her life. She told me it was mine and I said: ‘Mum, I can't.’ They were my words. I just changed her words around a little bit and that's why just pro that in the first place because it was, it wasn't my mother's will, it was 90 per cent of her will …” (sic)
45    At T36.39-T39.24 he said:

“Q. Or to be fair to you, you know that the 2003 will is not your mother's last will and you'd rather not take it any further.
A. No, it was my mother's will but it wasn't a hundred per cent of her thoughts. The only will, really, was the 1998 will because it was the original will where there was no family influence; it was all her own doing. Whereas all of the other wills, whether it be the 1991, my brother John's will – the 2002 will was my brother John's will – these were all compiled by my brother John.

ELLISON: Q. Do you regard the 2003 will as accurately reflecting your mother's testamentary wishes?
…
A. It was pretty accurate.

ELLISON: Q. In other words, from your point of view, part of it does and part of it doesn't. Would that be a fair way of putting it?
A. The part of it that doesn't was my mother wanted me to inherit her home, and I refused to write that into the will and that's why I didn't consider it a hundred per cent fair document.

HIS HONOUR: Q. Just let me understand what you're saying. You say that on 3 March 2003 when your mother gave instructions to you, it was that you would inherit her home.
A. Yes.

Q. And you did not write that in the document that you were writing. Is that right?
A. Yes, yes.

Q. You wrote instead that when you no longer needed to reside in the home, it be sold and divided between the grandchildren.
A. That's correct.

ELLISON: Q. You're saying that you knew that that was not what your mother said to you?
A. Yes.

Q. And so do I take it when you read out the document to her so that she could be sure that it contained her wishes, you did not read to her that the document stated that the home was to be sold and the proceedings divided between the grandchildren?
A. No, I read it to her the way you see it and we talked about it. I said, "Mum, I'm not going to write that."

Q. So you say you told her that you were not going to write that. You told her that you were going to provide that the house would be sold and the proceeds go to the grandchildren.
A. Yes.

Q. And that was of course less advantageous to you –
A. Yes.
Q. – than the provisions of the 98 will.
A. Yes.

Q. And you made the choice that you wished to receive less out of your mother's estate than she had provided for you in the 1998 will.
A. Yes.

Q. The most important part – indeed, possibly the only part of this will that actually gives something of substance – is the fact that the house is to go to the grandchildren, correct?
A. Yes.

Q. And you say that did not accurately reflect what your mother wanted?
A. Yes.

…

Q. You've told the Court, I believe, today, that she had told you she wanted you to have the house?
A. She did.

Q. Well, paragraph 4 is totally inconsistent with that, isn't it? Isn't it? That's not what she told you.
A. No, but –

Q. You're agreeing with me, that's not what she told you?
A. Not exactly, but it was what I was happy with and I told mum that.

Q. Did she tell you for or not?
A. She signed this will when I – I told mum, "I'm not going to write that. I'm not going to write that." 90 per cent of this will is her wishes.

Q. Well, which is the 10 per cent that isn't?
A. She wanted me to live there and sell the house and I wanted to sell it, and I refused to write that into the will.

Q. Paragraph 2 says you could live there.
A. Yes, but not to sell it and use it as my own home. Condition I made when I left America to my mother was, "Mum, I'd come back." She was the one who offered to stay and that's all I wanted, no more, no less. That's all I wanted. I was just trying to show the family, I'm not out to use my mother, I just did what I promised I'd do.

Q. You didn't show the family anything. In particular, you didn't show them this document until years later, correct?
A. Correct.”
46    It will be noted that Robert’s second account of the discussion with the Deceased about the contents of the 2003 Will was inconsistent with his first account of the discussion and with his evidence that the first account was accurate and complete. It will also be noted that the explanation that he gave in the second account as to his motive for persuading the Deceased not to leave him her whole estate – “I was just trying to show the family I’m not out to use my mother” – is inconsistent with the fact that:


– far from showing his family that he had not been unfairly benefited by the 2003 Will, Robert actively concealed that Will from the family for almost two years;

– in a letter written to his siblings twelve days after the Deceased’s death, Robert stated that the Deceased had left to him her whole estate (referring to the 1998 Will but not disclosing the 2003 Will);

– when the Defendants applied for probate of the Second 2002 Will, Robert commenced proceedings under the Family Provision Act 1982 (NSW), without disclosing the 2003 Will.



Should the 2003 Will be granted probate

47    By their Defence, the Defendants deny the validity of the 2003 Will, essentially upon two grounds, namely, lack of testamentary capacity and undue pressure or influence on the Deceased by the Plaintiff to make a will excluding his siblings: Amended Defence paras 3, 8 and 9. 48    The legal principles upon which the validity of the 2003 Will must be decided are clear and not in dispute. They may be summarised briefly as follows. 49    Testamentary capacity is to be determined according to the classic test propounded by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, at 565:
“It is essential to the exercise of such a power 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 bring about a disposal of it which, if the mind had been sound, would not have been made.”
50    Delusions and other infirmities of the mind may be permanent or they may be interspersed with lucid intervals. Delusions, even if permanent and severe, may still not affect testamentary capacity if the testator is, nevertheless, able to satisfy the tests in Banks v Goodfellow . However, if a testator suffers from a delusion or other infirmity of mind which may affect testamentary capacity, the Court must be satisfied that he or she was not suffering from their influence at the time that the will was made; if the Court is not satisfied, it will not grant probate of the will: Banks v Goodfellow at 570; Timbury v Coffee (1941) 66 CLR 277, at 283; Bull v Fulton (1942) 66 CLR 295, at 299; Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267, at 273. 51 Where there is an issue whether the deceased knew and freely approved the contents of the will or may have been unduly influenced as to its terms, the Court proceeds according to the principles usefully summarised by Isaacs J in Nock v Austin (1918) 25 CLR 519, at 528 (omitting citations):
“The relevant law is not doubtful. It may be thus stated:– (1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.”
52    In the present case, Mr Locke of Counsel, in his capable argument on behalf of the Plaintiff, does not dispute that a suspicion as to the validity of the 2003 Will is raised by reason of the infirmity and mental condition of the Deceased, and by reason of the circumstances in which Robert made the will for the Deceased. 53    Indeed, it may be fairly said that the Plaintiff has been, at best, half-hearted in this case in his endeavour to obtain probate of the 2003 Will. Clearly, he fully appreciates that he would be far better off financially if the 2003 Will were not granted probate and the 1998 Will prevailed over the 2002 Wills. 54    I am very far from satisfied that the Plaintiff has dispelled the suspicions which arise as to the Deceased’s testamentary capacity at the time of making of the 2003 Will and as to her full knowledge and free assent to its terms. My reasons are as follows. 55    The expert evidence of the two psychiatrists called by the parties, Drs Carne and Bell, is of no real assistance in assessing the Deceased’s testamentary capacity. Both frankly agreed that there was scant medical evidence upon which accurate psychiatric assessment could be founded. Accordingly, their opinions were necessarily tentative. I prefer to rely on the evidence of those who actually saw the Deceased in the last week of her life. 56    The evidence of the Deceased’s children other than Robert gives a description of the Deceased at 3 March 2003 as a person close to death: extremely feeble, non-responsive and incapable of conversing to any real degree. Robert gives a description of the Deceased as capable of engaging in detailed conversation and, according to his first version of events, spontaneously expressing a desire to make a will in favour of her grandchildren, who had not been the direct subject of her testamentary bounty in previous wills. 57    The description of the Deceased which the Plaintiff gives is not in conformity with the medical evidence as to the Deceased’s condition at that time; the evidence of the other witnesses is far more probable and I prefer it. 58    I take into account that:


– there was no independent witness present during the time that the Plaintiff says that he was taking instructions for the 2003 Will;

– the two witnesses to the Deceased’s signature were not called and it was clear that Robert had made no genuine effort to locate them;

– the Plaintiff’s two accounts of the instructions given to him by the Deceased – one in chief and the other in cross examination – differ markedly and importantly and the second version, if accepted, shows that the Plaintiff refused to comply with what he says were the Deceased’s initial instructions;

– the condition of the Deceased was such that there must have been a very real possibility that she could not resist whatever the Plaintiff wanted her to do in her will;

– the evidence suggests strongly that as at 3 March 2003 the Deceased had not been taking her medication for some time so that her schizophrenia was not being controlled;

– the Deceased’s disposition of the Leumeah property in remainder to her grandchildren is aberrant in the light of previous wills;

– there is no evidence to suggest that the Deceased’s granddaughters had such a direct and substantial claim upon her testamentary bounty as to warrant receiving the Leumeah property;

– the gift to the Catholic Church is aberrant as the Deceased was Anglican and there is no explanation in the evidence for such a gift;

– the Plaintiff suppressed the 2003 Will for more than two years after the Deceased’s death.

59    For these reasons, I am not satisfied that the Deceased had testamentary capacity to make the 2003 Will or that she knew and fully and freely approved of its contents. I decline to grant probate of the 2003 Will.


Should the First 2002 Will be granted probate

60    John and James, by their Amended Cross Claim, seek a grant of probate of the Second 2002 Will. They say that the First 2002 Will appointing the Public Trustee as executor was a valid will and it revoked the 1998 Will in favour of Robert, and that the Second 2002 Will was also a valid will and revoked the First 2002 Will. If the Second 2002 Will is held to be invalid, John and James seek a grant of probate of the First 2002 Will to the Public Trustee. 61    Robert asserts in respect of both the 2002 Wills that the Deceased lacked testamentary capacity. He says further that even if the Deceased had capacity to make the First 2002 Will, the contents of that will were not approved by her because she was blind and the contents of that will were not read out to her before she signed it. 62    John and James concede that a suspicion, at the least, has been raised as to the testamentary capacity of the Deceased in making both of the 2002 Wills and as to whether she knew and approved their contents so that they must satisfy the Court that the suspicions have been dispelled. They accept that the same principles of law which I have set out in relation to the consideration of the 2003 Will apply to a consideration of the 2002 Wills. 63    There is no doubt that the Deceased was gravely ill when she was admitted to Liverpool Hospital on 25 July 2002. The hospital records have been produced, although very late in the trial, and Drs Carne and Bell have given evidence in the light of what is disclosed in the hospital file. Even so, neither doctor was prepared to assert firmly and unequivocally an opinion as to testamentary capacity or lack of it at the time the Deceased signed either of the two Wills on 26 July. 64    Dr Carne placed considerable emphasis on evidence from the hospital records that upon admission on 25 July the Deceased was confused and disoriented as to place, time and date. In addition, a note on the file made on the Deceased’s admission records:
“Delusional ideation – thought son, Robert, was trying to poison her, therefore she has been falling [?] for past 3 months. Putting her to [nursing home] 3 weeks ago so he could take away all her money. She believed that the whole family was after her money. A total of $70,000. At present, the money is safe. Being looked after by someone else.”
65    While the Deceased’s belief that Robert was trying to poison her was delusional, in view of the family relationships and the history revealed in these proceedings and in the Guardianship Tribunal proceedings, I am not prepared to say that the other beliefs which the Deceased expressed were irrational and delusional. It is significant that she was correct in recalling that she was to receive $70,000, or thereabout, from her mother’s estate and that that money was “being looked after by someone else” – i.e. the Protective Commissioner. 66    Dr Carne says that the Deceased’s confusion on admission may have been due to severe and widespread cancer, causing anaemia. However, he agreed that one could not assess a person’s mental state by looking at blood tests alone. He agreed that the type of confusion caused by anaemia can fluctuate, even within the course of the day, and he could not tell from the medical records whether the Deceased’s confusion had fluctuated after her admission. He also agreed that the first day of admission to hospital of an elderly person is not the best time to test orientation as to time, place and date as such people are often confused when they are first admitted. Dr Carne agreed that the Deceased’s confusion and disorientation on admission could have changed by the following day. 67    In the end, Dr Carne frankly agreed that, although he thought it unlikely that the Deceased had testamentary capacity on 26 July, he was unable to say that she did not. 68    Dr Bell was of the opinion that the Deceased’s low haemoglobin level at the time of admission showed a fair degree of bleeding but he said that that did not necessarily result in impairment of mental function. He also agreed that disorientation and confusion are commonly experienced by elderly people on the first night of their admission to hospital. Like Dr Carne, he emphasised that confusion caused by anaemia can fluctuate within the course of a day. 69    I am not able to form a conclusion as to the testamentary capacity of the Deceased by reliance upon medical records or on the opinion of either Dr Carne or Dr Bell. In my view, the best evidence as to the Deceased’s mental state is that of those who saw and talked to her at the time that she made the 2002 Wills. 70    I regard the evidence of Mr Gardiner as the most reliable basis upon which to assess the Deceased’s testamentary capacity on 26 July. Mr Gardiner is the only witness amongst those who saw the Deceased on that day who is completely impartial in that he has no financial interest in the proceedings and no family allegiances or hostilities. Further, and just as importantly, Mr Gardiner was at the time highly trained and experienced in assessing the testamentary capacity of people whose capacity might be called into question. As branch manager of the Public Trustee at Liverpool, he was concerned entirely with the making of wills, particularly difficult or complicated wills. He says that he was probably making in excess of one hundred wills per year, ten or twelve of which were wills of patients in hospital. 71    Understandably, Mr Gardiner’s actual recollection of what happened on 26 July 2002 is vague. However, he has the benefit of file notes as well as the benefit of what he says, and I accept, was his usual practice in dealing with will making in similar circumstances. There is no reason to doubt that, in the present case, Mr Gardiner followed his usual practice in making the First 2002 Will. 72    Mr Gardiner recalls John and James attending his office early in the morning of 26 July and telling him that the Deceased was gravely ill and that they wanted him to make a will for her leaving her whole estate between her six children. He says that they told him there were “some family tensions” . His practice was to ask if the Deceased had testamentary capacity. He does not recollect being told that the Deceased suffered from schizophrenia. He gave this evidence:

“Q. If you had been told that she suffered from schizophrenia, that is something which would put you on inquiry about capacity, would it not?
A. Very much so.

Q. And what would have been your usual practice if you had been given information like that to inquire into the person's capacity?
A. I would still interview the person and but if I had any doubts, I would refer the matter. I wouldn't execute the will. I would refer the matter to one of our legal officers in the Public Trustee. We had a specialised solicitor whose only job was making wills. We also as a branch dealt with our own regional legal staff.

Q. You wouldn't just tick the box "capacity"?
A. No, no.”
73    Mr Gardiner prepared a very short and simple will. It has only one dispositive clause in which the Deceased gives the whole of her estate, after payment of her liabilities, to those of the named children who survive her. All six children are named. 74    Mr Gardiner’s file notes are in evidence. The first three pages were completed in his office when taking instructions from John and James. They record that the estate was to be divided equally between the six children and the names of the children are shown. A box asking whether the testator can read and understand the will is ticked affirmatively. 75    The fourth and fifth pages of the notes were completed by Mr Gardiner at the hospital when interviewing the Deceased. They show that the interview took place at about 11am. 76    Mr Gardiner says that, in accordance with his usual practice, he would have asked the Deceased the names of her children, what property she owned, how she wanted to leave her estate, if she had any special requests for her funeral, and if she could read the will. If the Deceased had told him that she could not read the will, he would have added the appropriate attestation clause. Because there is no attestation clause indicating that the Deceased did not read the will for herself, Mr Gardiner concludes that the Deceased told him that she could read the will, that he gave it to her to read, and that she acknowledged that she understood its effect. 77    Page 4 of Mr Gardiner’s notes shows a tick beside the questions: “Did the client understand the nature of the Will” and “Did the client understand the assets/value of the Estate” . There is no reason to suppose that Mr Gardiner did not satisfy himself as to these questions by talking to the Deceased when he made these notes in her presence. 78    Importantly, on page 4 of the notes Mr Gardiner wrote the following:
“Testatrix is terminally ill and has only weeks to live. Mentally she was quite alert and adamant that she wished to leave her estate equally between her six children.”
79    Mr Gardiner says that he does not normally make such a full note. He says that he thinks that John and James had expressed some doubt about the Deceased’s mental and physical abilities and that the note indicates that at the time he saw the Deceased he did not have any doubt about her testamentary capacity or her intention to leave her estate in accordance with the will which he had prepared. 80    I accept Mr Gardiner’s evidence without reservation. 81    I am satisfied that before Mr Gardiner asked the Deceased to sign the will he made sure that it correctly reflected her instructions. The Deceased must have understood from Mr Gardiner’s questions that the will she was going to sign provided that her estate would be left equally to her six children. 82    It was clear that the Deceased could not read the will for herself. She was not totally blind but she could only read letters which were about an inch in diameter. She could see shapes and outlines. She could recognise faces at a short distance. She could make comments about her daughters’ clothes. It is quite possible that the Deceased chose not to tell Mr Gardiner that she could not read the will for herself and that she could see the shape of the will in front of her clearly enough to know where to sign. It is distinctly possible that Mr Gardiner pointed out on the page where she should sign and she could see well enough to follow his directions. 83    I am satisfied by the evidence of Mr Gardiner that at the time the Deceased made the First 2002 Will she had testamentary capacity. She still had the delusions that Robert was poisoning her and that one of her daughters was a prostitute because such delusions, by their nature, are ineradicable. But those delusions did not affect her testamentary disposition. All her children were included in the First 2002 Will and all were treated equally. She had manifested an intention to treat all her children equally in statements which she had made to the Guardianship Tribunal in March 2001 as to how she wanted to distribute the inheritance from her mother’s estate. 84    I am further satisfied by Mr Gardiner’s evidence that the Deceased knew and approved the contents of the First 2002 Will before she signed it. I take into account that the other attesting witness to that Will, Ms Adragna, has not been called and that Mr Locke submitted that a Jones v Dunkel inference should be drawn from that failure. However, Ms Adragna was a Public Trustee officer only marginally concerned with the making of the will: she did not take instructions and she did not undertake to ascertain the Deceased’s testamentary capacity, as Mr Gardiner did. I do not think it likely that Ms Adragna could have been of much real assistance in the case. 85    I conclude that the First 2002 Will was a valid will and that it revoked the 1998 Will.


Should the Second 2002 Will be granted probate

86    The evidence of Drs Carne and Bell does not distinguish between the Deceased’s mental condition at the time of execution of the First 2002 Will and the time of execution of the Second 2002 Will. The clinical notes show that the Deceased received a visit from her family at about 2pm. The notes do not indicate any confusion or disorientation on the part of the Deceased at this time or, indeed, at any time on 26 July. 87    For the reasons which I have explained above, I think that the most reliable evidence as to the Deceased’s mental condition at the time of execution of the Second 2002 Will is the evidence of those who saw her and spoke to her at that time. 88    Of critical importance in determining the testamentary capacity of the Deceased at the time that she signed the Second 2002 Will is the fact, as I have found, that she had testamentary capacity only a few hours previously when she signed the will prepared by Mr Gardiner. The observations of Mr Gardiner as to the Deceased’s understanding and as to her ability to communicate her testamentary instructions are consistent with the evidence given by James, Linda, Belinda and Jennifer as to her physical and mental condition only about three hours later. 89    James, Linda, Belinda and Jennifer say that the Deceased recognised and spoke to them. They say that she told them that she had already signed a will earlier that day. That statement clearly provoked an enquiry from nursing staff, as Jennifer’s evidence indicates: T105.41-.47. 90    The fact that the Deceased could recall Mr Gardiner’s visit earlier that day and that it was concerning a will indicates that she was not suffering at that time from any substantial degree of confusion or disorientation. 91    James, Linda, Belinda and Jennifer are consistent in their evidence that the Deceased was alert, that it was explained to her that the will left everything to the six children equally, and that Linda read the will slowly to her before the Deceased signed it. Their recollection in the witness box of sharing a joke with the Deceased when her signature began to go off the first page of the will emerged incidentally during cross examination. That evidence had none of the hallmarks of having been concocted in concert previously. The way in which that incident came to light in the evidence of Belinda, Linda and Jennifer, in particular, convinces me that their recollection of what occurred is genuine and substantially accurate. 92    On the other hand, the Plaintiff says that he, too, visited the Deceased on 26 July. He says that she had an oxygen mask, was very vague and weak and could not lift her arms. She says that she told him that she had had visitors that day, that they made her sign some documents, that she did not understand what they were and did not sign her usual signature. 93    The visit by the Plaintiff is not recorded in the clinical notes – neither is the visit by Mr Gardiner, but Mr Gardiner has a file note which records the date and time of his visit. The clinical notes record the visit of James, Linda, Belinda and Jennifer at about 2pm on 26 July. Robert has no note recording the date and time of his visit. 94    If it was, indeed, 26 July on which the Plaintiff visited the Deceased, he could have come well after the visits of Mr Gardiner and the rest of the family. The Deceased’s condition could have fluctuated adversely by the time of the Plaintiff’s visit. The clinical notes do not show that the Deceased was receiving oxygen at any time during 26 July. 95    As the evidence of James, Linda, Belinda and Jennifer as to the Deceased’s mental and physical condition is consistent with the evidence of Mr Gardiner, I prefer their evidence to that of the Plaintiff. 96    I am satisfied that the Deceased was told that the will which she was about to sign on the afternoon of 26 July left her estate to her six children equally. I am satisfied that the Deceased approved of that disposition. In making this finding, I am conscious of the fact that the Deceased had no independent legal advice in the making of this will and that those who are propounding it are the beneficiaries. However, the disposition of the Deceased’s estate in this will is the same as that in the will prepared by Mr Gardiner. There is no evidence to support the conclusion that the Deceased’s intention to make such a disposition – described in Mr Gardiner’s contemporaneous note as “adamant” – changed or that her mental condition deteriorated between execution of the First 2002 Will and execution of the Second 2002 Will. 97    Bearing in mind the “vigilant and anxious examination” which is required in circumstances such as attended the execution of the Deceased’s Second 2002 Will, I am nevertheless satisfied that when the Deceased executed that will she had testamentary capacity and that she understood and approved the contents of that will. 98    The Second 2002 Will is, therefore, a valid will and revokes the First 2002 Will. Although the second page of the Second 2002 Will cannot be found, I am satisfied by reference to the office precedent identified by Mr Gorman that it contained no dispositive provision and that its absence does not affect the admissibility to probate of pages 1 and 3 of the Second 2002 Will as the last will of the Deceased.


Orders

99    The orders of the Court are:


(1) Judgment for the Defendants on the Plaintiff’s Statement of Claim.

(2) Order that probate of the Will dated 26 July 2002 in solemn form be granted to John Owen Hyslop and James Michael Hyslop.

(3) Order that the matter be referred to the Registrar for completion of the grant.

100    I will hear the parties as to costs and I will make directions for the hearing of the remaining issue which is to be tried as a separate question.
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