Perpetual Trustees Queensland Ltd v Gilbert

[1993] QCA 312

IN THE COURT OF APPEAL

[1993] QCA 312

SUPREME COURT OF QUEENSLAND

Appeal No.2 of 1993

Brisbane

[Perpetual Trustees Queensland Limited v. Gilbert]

BETWEEN:

PERPETUAL TRUSTEES QUEENSLAND LIMITED

(Plaintiff) Appellant

v.

NELLIE HALL GILBERT

(Defendant) Respondent

The President
Mr Justice Pincus

Mr Justice Dowsett

Judgment delivered 25/08/93

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	WILLS, PROBATE, AND LETTERS OF ADMINISTRATION - Making a will - Whether testamentary capacity.
Counsel:	Mr.R. Myers, with him Mr.B.H. Crawford for the appellant Mr.R.W. Trotter, with him Mr. J.B. Walker for the respondent
Solicitors:	Messrs. de Groot and Co. for the appellant James Walker for the respondent

Hearing Date(s): 29-30/04/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2 of 1993

Before The President
Mr Justice Pincus
Mr Justice Dowsett

[Perpetual Trustees Queensland Limited v. Gilbert]

BETWEEN:

PERPETUAL TRUSTEES QUEENSLAND LIMITED

(Plaintiff) Appellant

v.

NELLIE HALL GILBERT

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25/08/93

This is an appeal from a judgment delivered in the Trial Division on 14 December 1992 dismissing an action brought by the appellant, as one of the executors named in the last will of Charles William Chater deceased, to prove that will in solemn form. The will of which probate was sought was dated 8 March 1990, one month and two days prior to the death of the deceased aged 88 years. The respondent and her husband were the executors and trustees of an earlier will executed by the deceased on 27 May 1985. The trial judge held that the appellant had not proved that the testator had testamentary capacity when he executed the 1990 will of which probate was claimed in the action.

By the 1985 will, specific legacies were left to the deceased's grandson, Paul Lostroh ($5,000.00), the Uniting Church in Australia Property Trust (Qld) for the general purpose of the Blue Nursing Service Council ($5,000.00), and the Board of Benevolence and of Aged Masons, Widows and Orphans Funds of the Masonic Lodge ($10,000.00). The residue of the estate, after payment of debts and outgoings, was left as to 20% to the deceased's daughter, Mrs Beverley Mary Lostroh, 50% to the deceased's son, Kenneth William Chater, and 30% to the respondent, the deceased's sister.

Under the 1990 will, the residue of the deceased's estate after payment of debts and outgoings was left as to 30% to the Blue Nursing Service Brisbane Central Council and as to 20% to the Queensland Cancer Council to be used for research into the prevention and cure of cancer. The remaining 50% was to be held on trust to pay the income to the respondent during her lifetime and, upon her death, to be set aside in perpetuity and invested to enable the income to be distributed in equal shares to the Salvation Army (Queensland) Property Trust, the Society of St. Vincent de Paul, and the Uniting Church in Australia Property Trust (Qld) for the purchase and maintenance of equipment at the Wesley Hospital. The deceased's children and grandson were to receive nothing under the 1990 will.

The 1990 will also omitted any Masonic beneficiary but contained a bequest to a Catholic charity. This was uncharacteristic of the deceased who was a Mason and opposed to the Catholic Church throughout his adult life.
The deceased and his late wife had separated in 1984.
Mrs Chater went to live with their daughter, Mrs Lostroh,
and commenced Family Court proceedings against the deceased.
Mrs Chater died on 11 October 1984 and, on 31 October 1985,
Mrs Lostroh secured a Grant of Administration of Mrs
Chater's lands and goods limited to prosecuting Mrs Chater's
Family Court proceeding. As noted, the deceased had made a
will on 27 May 1985 under which both his children, Mrs
Lostroh and Mr Kenneth Chater, were to benefit. Mrs Lostroh
pursued the Family Court proceeding and, in 1987,
$490,000.00 was awarded to Mrs Chater's estate. Mrs Lostroh
and Mr Kenneth Chater contributed equally to the costs of
the Family Court proceeding and shared equally in Mrs
Chater's estate. Although the deceased's relationship with
Mrs Lostroh deteriorated when Mrs Chater went to live with
her, his relationship with his son, continued to be quite
good and he made no attempt to change his 1985 will until
1990, shortly before his death.
The 1990 will substantially increased the interest of
the Blue Nursing Service in the estate of the deceased.
According to a former employee of the Blue Nursing Service,
Mr Kenneth Cyril Edwards, he had formed an association with
the deceased in 1987 which developed into a friendship and,
from early on in their relationship, the deceased stated
that he intended to make a substantial donation to the Blue
Nursing Service and, in 1989, commenced to speak about
changing his will. However, at that time he indicated that
he proposed to consider the matter further and did not
mention the subject again until 7 March 1990 when he was a
patient in the Wesley Hospital.

On that day, Mr Edwards called to visit the deceased in hospital and was told by the deceased that he wished to make a new will. Reference was made by the deceased to the respondent benefiting either directly or by way of trust to the extent of 50% of the deceased's estate and to the Blue Nursing Service receiving 30% of the estate. At the deceased's request, Mr Edwards recommended the appellant as the deceased's legal personal representative and arranged an appointment between the deceased and an employee of the appellant for the same afternoon.
On that occasion, instructions were taken from the deceased by Graham John Stenton, a solicitor employed by the appellant, and a handwritten will was prepared then and there and duly executed and witnessed. A typed will in similar terms, which was executed and witnessed on the following day, is the will of which probate is sought in this action.
Mr Edwards again saw the deceased in the Wesley Hospital after he had executed his will on 8 March, but they did not discuss its contents.

A few days later, the deceased was transferred to the Hervey Bay Hospital from which he was accustomed to go most days to his home at Scarness. Mr Edwards visited the deceased there and was shown a copy of the will dated 8 March 1990 of which probate is now sought. In the course of their discussion, Mr Edwards informed the deceased that the description of the Blue Nursing Service in the will was inappropriate if he wished to benefit the Blue Nursing Service in the Brisbane area, and it was agreed that Mr Edwards would contact the appellant to arrange for the necessary alteration and also to change the will to provide for the Blue Nursing Service and the Masonic Lodge to be added to the residuary beneficiaries in respect of the income of the residuary estate after the death of the respondent. However, the changes were not made prior to the death of the deceased.

The deceased remained firm during his discussions with Mr Edwards that his sister, the respondent, but not his children, were to benefit under his will. Mr Edwards saw no indication of any change in the deceased's personality or demeanour after he entered the Wesley Hospital or later, when he went to Hervey Bay.

The respondent's opposition to the grant of probate of the will of 8 March 1990 was substantially based upon the deceased's behaviour in the Wesley Hospital, especially an antipathy which he manifested towards his son, Mr Kenneth Chater. The son was not surprised that the deceased had excluded his daughter, Mrs Lostroh from his will in view of the role which she played in the Family Court proceeding or that the deceased excluded his grandson, who had married a Catholic.
Mr Kenneth Chater drove his father to hospital when he was admitted on 30 January 1990 and visited him every day up to and including 8 February . From the day he went into hospital until the dosage was subsequently reduced, the deceased was administered 12 milligrams of dexamethasone daily. The initial quantity was reduced to 8 milligrams per day on 8 February, 4 milligrams per day on 15 February, 2 milligrams per day on 21 February and .5 milligram per day on 27 February. Mr Kenneth Chater's evidence was that, shortly after this treatment commenced, the deceased's personality and behaviour altered.

Initially, he noted that the deceased was uncharacteristically loud, boisterous and extroverted and abusive towards hospital staff. He was preoccupied with his clothes, and required Mr Kenneth Chater to lay them out on his bed and count them. That was not necessarily completely out of character as the deceased had always been possessive of his belongings. However, the deceased expressed concern at the possible theft of his property by hospital staff.

Further, it seemed to Mr Kenneth Chater that some of the deceased's statements to nursing staff about his previous life were inaccurate and that the deceased's demands were more exacting than previously.

Hospital notes for 5 February say that the deceased was "Becoming irritable with some paranoid ideation". Notes for 6 February include:

"... requires a lot of reassurance from staff, he feels quite insecure about being in this ward also that he is going to die here.

... ... ... appears pleasant at times and at other times he

appears quite aggressive towards staff."
On Wednesday, 7 February 1990, the deceased told his

son that he wanted him to accompany him to his home at Hervey Bay on the following Friday and to remain there until Tuesday in the following week. Mr Kenneth Chater told the deceased that he could not leave his dairy farm for that period without first making arrangements for assistance for his wife. The hospital notes indicate that the deceased was a "bit aggressive" that evening.

On the following day, 8 February, when his son visited him, the deceased was aggressive. He demanded his chequebooks and his son went to get them from his wife's car which he had driven to the hospital. Next, the deceased wanted his house and car keys, which his son had left in another vehicle. The deceased demanded that his son return to his farm, a distance of about 30 kilometres, to retrieve the keys. His son was unwilling to do so.

In his son's words, the deceased then "turned on" him. He falsely accused his son of being responsible for episodes in the deceased's life which occurred when his son was a child; a period of imprisonment which the deceased underwent before he was exonerated of allegations of dishonesty and a problem which the deceased had with a major contractor which employed the deceased's business. Mr Kenneth Chater said in evidence:

"He was savage. I had never seen him like it. In all of my years he never got like that - and yelling. He was yelling and swearing and I finished up saying to him, `Look, my presence here is only making you yell and scream. It would be better if I was to go and I will come back when you are settled down.'"

In accordance with the deceased's wishes, Mr Kenneth Chater did not see the deceased again before his death, but his wife, the deceased's daughter-in-law, visited the deceased regularly.
The respondent, the deceased's sister, also visited the deceased regularly during the period in February and March 1990 when he was a patient at the Wesley Hospital. She considered him much changed, unco-operative, irritable, impolite, worried about his belongings, less concerned with his personal hygiene and sometimes inaccurate or wandering in his conversation.
The following statements, consisting of some extracts from the material hospital records, are generally consistent with the respondent's observations.

"6/2/90 Reasonable early but became verbally abusive towards staff saying he wouldn't do anything he didn't want to. - RN

19/2/90 13.20 Quite demanding today. Not cooperating when demands made of him. - RN

13.30 Seems to be paranoid re belongings ... aggressive at times when ????? cleaned. Thinks we will take something of his. - RN

25/2/90 21.00 Assisting patient to bed. Patient uncooperative. Scratched nursing staff. - RN

26/2/90 Patient went on day leave today, he will return at approx. 5pm. Has not had a shower today. Appeared quite irrational at times - verbalising inappropriate messages. - RN

28/2/90 Cheerful and cooperative

1/3/90	Mr Chater is improving but his attitude and ?confusion do not help. He is unreliable in what he says he can do and has done. He needs to be encouraged and believe he is not an invalid and completely dependent - Physiotherapist
1/3/90	Very satisfactory day - has been quite cooperative today. - RN
3/3/90	Good day - RN
4/3/90	Good day ... patient a little upset that one of his relatives will be up today to take him out.

6/3/90 I have suggested we will attempt to locate someone through Blue Nurses, Community Health and other resources to give him "live-in" care. This won't be easy because of personality problems but he does need to start to look at these possibilities at Hervey Bay. - Dr. Mason

6/3/90 Cheerful day - RN

8/3/90 20.00 Not so well this evening c/0 feeling hot and unwell. N/R ... this am Mr Chater appears confused and disorientated. Colour greyish. RN

10.3.90	Confused at times this night. - RN 22.00 Patient was cooperative until bed time when he became very boisterous and uncooperative. - RN N/R Periods of abusive behaviour in early ???? eventually settled at 02.30 - RN
Difficult and uncooperative early part of day. Refused medication 08.00. - RN"

The respondent's evidence in chief also contained the following passage:

"MR TROTTER: Do you remember not long after he went to hospital he said something to you about Ken? -- Yes.

What was that? -- He said, "Ken's not my son." He said,
"He's not a Chater, he's a Collins," and ----

Did he say why he thought he wasn't his son? -- He said, "Look how tall he is."

What did you say to that? -- And I said. "You were just
as tall when you were playing football."
What did he say to that? -- "Don't mention his name
again."

Did he put out his hand? -- "Don't mention his name again."

Did you mention his name again? -- I tried to but I got the same response.

On how many occasions did you mention his name again? - - Well, when I knew he was in that frame of mind I would not - I would not hurt him by repeating it. I would not because I knew he was a sick man.

You said you did raise it again subsequently. How many times subsequently after the first time? -- Well, when he went to Hervey Bay he used to ring me a lot and I said, "Can Ken and I come up to see you?" "No." He didn't want Ken to come up.

Did Ken used to ask you if he ------?-- No, he never -
Ken never asked me what his father said.

What was your reaction to that when he------?-- It - I knew it just wasn't Bill. To have such a wonderful relationship before he went into hospital and that sort of thing happened, it wasn't right. It was his personality; just wasn't right."

Mrs Bernice Ellenor Chater, the deceased's daughter-in- law, also noticed a change in the deceased's behaviour which commenced shortly after he went into hospital. She visited the deceased on two occasions with her husband and subsequently by herself after the dispute between her husband and the deceased on 8 February 1990. Apart from "fighting with Ken", the deceased was "aggressive to the nurses and the nursing staff and the cleaning lady ...". He asserted that the staff were stealing his clothes and other property. Mrs Chater's observations of the deceased's attitude and demeanour generally corresponded with those of the respondent. Further, when asked on a number of occasions if he wished to see his son, the deceased refused. Again, on one occasion, the deceased "yelled" at Mrs Chater when she contradicted him for wrongly blaming her husband for leaving a mess at the deceased's Hervey Bay property.
The deceased also told Mrs Chater that her husband was not his son. She gave the following evidence.

"Do you recall an incident when he told you about Ken not being his son?-- Sure, yes. that was - that wasn't long after a couple of days after he said it was Ken's fault that he was in hospital and when I walked in he sort of - at me straight away. He said, "You know Ken's not my son.", and he said, "He is too big." He said, "He is not my son", and then it wasn't long - I started to get upset about it. He said, "What do you think the children would say ----"

MR TROTTER: Before lunch I was asking you about the time you visited Bill Chater and he told you about your husband not being his son. Could you tell us of that incident and the conversation again?-- He told me that when I walked in, that Ken wasn't his son and he was too tall, too big - to big to be Ken - his son and then

he said to me, "How do you think the grandchildren would feel if they knew that I wasn't their Poppa?", and it upset me. I was very upset about it.

What did you say -?-- I don't recall I said anything. I was upset and he just sort of glared at me vacantly. His eyes were piercing. He just sort of looked at me and then Mrs Gilbert came in and he told her the same thing, that Ken wasn't his son.

Is there any reason that you could see for him to have glared at you?-- No. I thought, I am not - but I sort of thought that he was sort of druggy or something. I didn't know what drugs he was taking at the time, but he looked quite mad at me - like a mad man.

Before I leave that, do you think that there was any resemblance between Ken and Bill?-- He is his father's son, there's no two ways about it. They are very similar in a lot of ways.

Whilst you were visiting him, did you ever see him have a lucid day where he was quite his old self?-- No, never his old self. He just deteriorated.

Did you raise that subject about Ken coming to see him ever again?-- Several times, but he would just shake his head at me. He didn't want Ken to come up. He would just shake his head.

When was the last time you say him in hospital?-- On 10 March, two days before he left for Hervey Bay Hospital.

...

MR TROTTER: When was the last time you had asked him whether Ken could come?-- Perhaps a few days before that. he just used to look at me and shake his head. He never said "yes" or "no". He used to just shake his head at me.

In cross-examination, she gave the following evidence: "If I asked you now to tell His Honour the most significant aberration that you say or heard in relation to your father-in-law from 30 January until the time of his death, what do you think it was? The thing that really showed that he couldn't have been in control of his faculties? -- I'd say about not being - Ken not being his son.

What would be the second?-- Well, sort of taking it out on the grandchildren and his great-grandchildren, saying they weren't his family.

You really regard those two pieces of evidence as being uncharacteristic of his father-in-law?-- It's the first time I'd ever heard it. I've never heard that before.

. . . .

You saw him on 10 March. That is so, isn't it?-- That was the Saturday. That was the only weekend I could go up to see him. That was the Saturday because we had been rung, I think the day before, to say he was leaving for Hervey Bay.

Apart from the fact that he was 88 and obviously suffering severely from cancer, there was nothing in his attitude, when you saw him on 10 March, that suggested that he wasn't in control of his faculties?-- He had deteriorated terribly. He was - as the sister quoted, and when she rang, she said he was very confused and when he was asking me for the keys for his Hervey Bay place - and he was like this, trying to think as to where he left them. That's the - that's how things were. He sort of just had his hand up at his head trying to be in deep thought thinking.

. . . .

Did you notice that some days you would go there and he would really be, as it were, on top of himself?-- No.

And other days there would be a contrast?-- No, not from the - before Ken - on the first couple of visits there he sort of - he was excited and - sort of be on a high and then after that he was just sort of deteriorated. He Just - he didn't show much interest in anything."

The deceased's accountant, Jeffrey Charles Rake, and Mrs Bernice Chater's brother, James Henry Henderson, who was a friend of the deceased, also gave evidence which to some extent supported the evidence given the deceased's son, his wife and the respondent, Mrs Gilbert.

Mr Henderson, who had regular contact with the deceased before and during the period when he was in the Wesley Hospital, spoke of the change in the deceased's personality, behaviour and relationships after he went into the Wesley Hospital, the change in his attitude towards his son, his aggression, rudeness and abusiveness, his distrust of the nursing staff, his tendency to "drift away" and "ramble" in conversation and his reduced attention to personal hygiene.

Mr Henderson's evidence in chief included the following

reference to a

conversation which he said occurred shortly after the deceased changed his will:

"... the first thing he said to me was, `The accountant has been and I've changed my will. Now they won't get anything ...

Did he tell you at any stage that Ken was not his son?-
-Oh, yes.

When was that?-- That was the same day. See, he was - as I said, he told me about the will and then we started talking about motor cars and he was pretty sensible then. Then he came back - he drifted back again and he told me - he said, `You know Ken's not my son. He's too big. He's a Collins. I said - I said words to the effect, `Bill, don't be silly, that wouldn't be right.' As I said, he was drifting to and fro all the time."

However, the cross-examination of Mr Henderson threw doubts upon aspects of this evidence, including whether the deceased's statements were made in a single conversation or on different days and the dates when the discussion in question occurred.

Further, he said under cross-examination:
"Apart from what you identify as behaviour out of the
ordinary when he said that Ken wasn't his son, can you
give us any other one instance of any occasion when you
thought his behaviour was out of the ordinary or he
said something that you couldn't understand, anything
of that sort?-- No, I can't recall."
In re-examination, he said:
"You say that when he disclaimed Ken, you didn't really

take any notice of it at the time; is that so?-- Yes.

I think you said that was because of the mood he was
in?-- Yes."
Mr Rake, who had acted as the deceased's accountant for

a number of years and seen him regularly during that period, visited the deceased only once in the Wesley Hospital. He found the deceased abusive of nursing staff and Mr Rake himself. He said: "... His tone of voice and his manner were the things that were very different to the Mr Chater I had dealt with for 10 to 15 years." In cross-examination, he added:

"It was impossible to reason with him. You know, we sort of - he sort of abused me for the first 10 minutes or so and, you know, eventually he settled down and, you know, we sort of conversed on a normal basis.

...

After he had cooled down you conversed in all for about an hour; is that right?-- Approximately an hour, yes

You conversed quite rationally?-- that's correct."
Later, he added:
"When he was in business you would see him angry and
aggravated with his staff?-- Certainly.

You would agree that his aggression seemed to be the way of getting them to do what he wanted?-- Well, yeah."

An occupational therapist, Mrs Sally Lyn Bennett, gave evidence that, on and between 14 February and 8 March 1990, she came into contact with the deceased six times for a total of eight hours. Although she found him to be anxious and domineering, she did not think that there were any personality traits that indicated he was not in complete control of his faculties. She accepted, however, that she was not interested in, and spoke to no one about, his prior personality. Generally, she thought he had no problems with his memory, talked "fluently" and was quite lucid. She could not recall any negative comments by the deceased about his family except words to the effect that he had two children, neither of whom was able to assist him.

The notes of Mrs Bennett's visit on 8 March 1990 record that she "discussed some practical considerations for his return (from the Wesley hospital) to Hervey Bay and provided him with information on the most appropriate lifts for his house". Mrs Bennett agreed that she would "most certainly" have made a note if, on any visit, a person seemed to be "disoriented, confused, (or) not in control of his faculties". Her notes contained nothing to this effect and she had no independent recollection otherwise. Under cross- examination she said that "he didn't appear confused in anyway...".

Mr Stenton, a solicitor with considerable experience,

was in no doubt that the deceased was in full command of his faculties and certain about the testamentary dispositions which he wished to make. He had a discussion of "well over an hour" with the deceased. He said: "We talked about his properties, the one at Wilston and one at Scarness. He had rebuilt the - had the Scarness property raised and he had photos of the property - he had photos of both properties.
So, we talked about his houses; his properties in general; what he was planning; what further building work he was planning having done to the Scarness property. We talked about his finance and his work history." He observed nothing in his dealings with the deceased which indicated any need for a medical certificate certifying to his capacity. The deceased gave accurate and responsive answers to all Mr Stenton's questions seeking information concerning his affairs and his testamentary intentions.
The trial judge made little reference to Mr Stenton's evidence, but his credit was not attacked and his evidence was of sufficient importance to warrant setting out some extracts. Mr Stenton gave the following evidence in respect of his meeting with the deceased on 7 March 1990:

"Did you have any discussion with him about his family and people that might have some claim upon his estate?- - When I finished going through the actual client profile I always ask a client that flips over the back page then details of their family or who their beneficiaries are to be in their Will and at that stage Mr Chater gave me the name of his son, his daughter and his sister.

Did he say anything about any of the three of them?-- Not personally. He said that his family had received sufficient from him in the settlement he had had with his wife and he wanted to benefit other people.

Did he exhibit any doubt or uncertainty about who his family might have been ? Did he have any difficulty in identifying them?-- No. He gave me the full name of his son and his son's date of birth. He gave the full name of his daughter and year of birth. He couldn't place the month or the day, and he gave me the name of his sister and I had no need to ask for her date of birth , and gave me her phone number."

In their discussion on 7 March 1990, the deceased was also able to tell Mr Stenton the location and almost precise balance of his bank accounts without reference to documents he had with him.

On 8 March 1990, Mr Stenton visited the deceased for about half an hour in the morning. Mr Stenton said that, before executing the typed will, the deceased "read through it and it was what he wanted" and that he had no questions about the contents. Mr Stenton gave the following evidence about this meeting with the deceased:

"Did Mr Chater exhibit any state or sign of confusion or any doubt as to the reason for you being there on the second occasion?-- No.

Did he know who you were?-- Yes.

Did you take with you both the fresh Will and a power of attorney?-- Yes.

Did Mr Chater read both documents?-- Yes.

Did he ask any questions in relation to either of the documents?-- Not that I can recall.

Did he exhibit any sign of confusion as to the effect of either of the documents?-- No.

Did you again call for a witness to the Will?-- Yes.

Did Mr Chater read the Will over?-- Mr Chater read the Will and the power of attorney while we were waiting for the second witness.

Did you ask any questions of Mr Chater on the second occasion when you went back?-- Yes. I asked him - we generally just talked about his history in a summary form out of what we had talked about the previous day. We had to fill in time so I just went back over some of the details that we had talked about the previous day.

Can you recall specifically any matters that were discussed on the occasion?-- Not specifically. Would have been the house, his work history and why he wanted to do what he was doing. Why he had nominated the beneficiaries he had.

Is it your practice to go over those matters on the
second occasion?-- Yes.
Mr Stenton based his assessment of the deceased on the

deceased's answers to questions he asked and his demeanour, but did not "check it against any previous will or reference to family" although he knew there was a previous will that mentioned his son and his daughter. Mr Stenton admitted under cross-examination that he expected the deceased would be taking drugs, that he did not ask anyone what drugs he was taking, and that if he knew that he was taking "a drug which was well-known to have as a side effect behavioural disturbances with evidence of paranoid ideas and confusion"

he would have sought a medical certificate from the

treating doctor.
Dr. Bernard Raymond Mason, the Director of Radiation Oncology at the Wesley Cancer Care Centre, was the only medical witness who had treated the deceased who was called as a witness.

Dr. Mason considered the deceased difficult, domineering, abusive and sometimes forgetful and confused, but did not think his behaviour "abnormal ... for an 88 year old gentleman in his state of health." So far as he could tell, he thought the deceased had testamentary capacity on 8 March, 1990. He did not consider that the deceased's behaviour was occasioned by the use of dexamethasone, but was probably caused by his personality, age and illness. He accepted that there were some signs of paranoid ideation and that, if the deceased incorrectly denied parenthood of his son, he was delusionary about that". He was unable to take the matter further or to give a definite opinion on testamentary capacity because he lacked knowledge of the deceased's normal behaviour prior to his admission to the Wesley Hospital at the end of January, 1990. The other medical witnesses called for the appellant at the trial was Professor Theresa Rita O'Rourke Cramond, a professor of anaesthetics. Professor Cramond's opinion, based on the medical notes, was that the deceased probably had a toxic confusional state during the early stages of his treatment with large doses of dexamethasone, which she said could cause mood changes, including depression and confusion. She concluded that there was nothing in the medical notes to indicate confusion at the time the deceased signed the 1990 will, and, based on the medical notes, she considered that he had testamentary capacity. Her opinion was unchanged by the deceased's assertion that his son was not his son.

However, three doctors generally supported the respondent's contention that the deceased lacked testamentary capacity at the relevant time.

Dr. Michael Geoffrey Eric O'Rourke, a surgeon, gave evidence that the deceased's denial of his son and his attitude with respect to his clothes indicated psychotic behaviour, the causes of which were multifactorial: dexamethasone can cause mental disturbance but also "he is a very elderly man who has a very severe disease ...".
Professor Peter John Ravenscroft, a professor of palliative care, gave evidence that he thought that the hospital notes provided an incomplete basis for a conclusion concerning the deceased's testamentary capacity. However, he considered that there was more than confusion "... there were delusions, there was paranoia, and these are serious phases of an illness, much more serious than the usual confusional state ...". In his opinion, the hospital notes recorded evidence of "very severe psychotic illness", probably caused by the initial high doses of dexamethasone,
and that such a psychosis would usually include "serious confusional states, hallucinations, paranoid ideas and delusions." While he accepted that a patient with such problems might have days "where they are much better and able to relate better", the hospital notes and such matters as the deceased denying that Mr Kenneth Chater was his son indicated "a severe psychiatric condition which has a major effect on behaviour ...".
The remaining medical witness was a psychiatrist, Dr. Raymond John James. It is unnecessary to summarise Dr. James' evidence or to do more than note that it was expressed in stronger terms than the other medical witnesses who supported the respondent's case that, at the material time, the deceased lacked testamentary capacity.

Ultimately, it was not for the respondent to prove that fact. The onus was on the appellant to prove that the deceased had the capacity to make the relevant will. The analysis of the evidence which has been undertaken demonstrates beyond real dispute that, while there was evidence upon which the trial judge could have reached that conclusion, it was at least equally open to him to prefer the significant body of evidence to the contrary.

In particular, while there was evidence that the deceased's condition may have fluctuated, there was insufficient evidence to necessitate a conclusion that the deceased had the necessary capacity on the relevant dates, 7 and 8 March 1990. Mr Stenton's evidence would provide a basis for such a conclusion, but appears not to have found favour with the trial judge for this purpose. In the light of the medical evidence, we cannot say that his Honour was wrong.

In the circumstances, there is no proper basis for this Court to interfere with the trial judge's decision and the appeal must be dismissed. The appellant must pay the taxed costs of and incidental to the appeal.