Ryan v Kazacos

[2001] NSWSC 140

Reported Decision: (2001) 183 ALR 506
(2001) 159 FLR 452
[2001] NSWSC 140
[2001] ACL Rep 195 NSW 19
[2001] ACL Rep 395 NSW 23

New South Wales

Supreme Court

CITATION:	Ryan v Kazacos; Estate of Michael Harvey Kazacos [2001] NSWSC 140
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 104947/97
HEARING DATE(S):	20/02/01 and 21/02/01
JUDGMENT DATE:	13 March 2001
PARTIES :	Michelle Ryan (P) Michael Constantine Kazacos (D)
JUDGMENT OF:	Young J

COUNSEL :	L Ellison and E Cox (P) T Alexis and T Hudson (D)
SOLICITORS:	David H Cohen & Co (P) Sharpe Partners Legal (D)
CATCHWORDS:	EVIDENCE [23]- Inadmissible evidence by statute- Solicitor for X listening to tapes of tapped phone calls for criminal proceedings against X- Solicitor takes notes- Notes inadmissible in probate proceedings Y v X. SUCCESSION [4][48]- Suicide note- Whether an informal will- Whether maker of sound mind- when "will" made. WORDS & PHRASES- "Information".
LEGISLATION CITED:	Wills Probate & Administration Act 1898, s 18A Telecommunications (Interception) Act 1979 (Comm) ss 5B, 63, 74, 77 National Crime Authority Act 1984 (Comm) s 29A
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Burrows v Burrows (1872) 1 Hagg Ecc 109; 162 ER 524 Harman v Home Department State Scretary [1983] 1 AC 280 Kizon v Palmer (1997) 72 FCR 409; (1997) 75 FCR 261; (1998) 100 A Crim R 86 Mulray v Ogilvy (12 June 1991) Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244 Re Estate Griffith (7 June 1995) Re Furney [1964] ALR 814 Re Hodges (1988) 14 NSWLR 698 Re Masters (1994) 33 NSWLR 446 Reg v Carmelo Micalizza (Slattery CJ at CL - 13 November 1987) Vane v Lord Dungannon (1804) 2 Sch & Lef 118 Wood v Beves (1997) 92 A Crim R 209; (1997) 137 FLR 436 Worth v Clasohm (1952) 86 CLR 439
DECISION:	See paras 72 and 73.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

TUESDAY 13 MARCH 2001

104947/97 - RYAN v KAZACOS; ESTATE OF MICHAEL HARVEY KAZACOS

JUDGMENT

1    HIS HONOUR: The question in this case is whether a note (called in evidence the “suicide note”) written by the late Michael Harvey Kazacos (the deceased) should be admitted as a codicil to the deceased’s last will under s 18A of the Wills Probate and Administration Act 1898.

2    The deceased shot himself in his office on the 6th floor, 250 Pitt Street Sydney in the late evening of 2 November 1996 or the early morning of 3 November 1996. The note, which is clearly in the deceased’s handwriting and bears the notation “6.40 am 1.11.1996” reads as follows:

Life for me is just an existence. I prefer to end it rather than exist in this apparent prison.
I wish to amend my present will by including Michelle Ryan, whom I owe so much for her devotion and love.
To Michelle Ryan I leave my 50% share in the business - The Penthouse. Further I leave her my villa - No. 7 at Pacific Mirage. This is to be made unencumbered prior to her receiving full title.
I ask Michelle to always keep Josh and Vacentilo in her care and to cherish them.
I am of sound mind as I write this and request the above requests be carried out in full.
(Signature) Michael Kazacos”.

3    Michelle Ryan is the plaintiff who seeks to prove the note as a testamentary amendment to the deceased’s will.

4    The evidence shows that Josh and Vacentilo were two cats belonging to the plaintiff who occupied the building 250 Pitt Street Sydney.

5    There is considerable evidence of the deceased’s last hours of life which it is necessary to consider in some detail. However, it is first expedient to give a broad sketch of the deceased and his property.

6    The deceased was 36 at the time of his death. He made a will on 14 August 1990, which will appears to have been made by a solicitor. This will made the deceased’s father his executor. The father is the current defendant to these proceedings. He gave his friend Christine his home unit at Darling Point free of debt, or if he did not own that unit at the date of death, $450,000. He gave the residue to his father, his mother and his son in equal shares. The defendant obtained common form probate of this will on 25 November 1997.

7    The deceased was a one-half owner with his father of a business known as the “Penthouse Club” in Sydney. This was euphemistically called a “gentlemen’s club”. It was a seven day a week, 24 hours a day business which involved attending to the needs of the members. In order to service the members, shifts of large number of hostesses were employed and at least ten suites of rooms were made available by the club for private conferences between the members and the hostesses.

8    The plaintiff commenced working in the business in 1993 in the position described as receptionist. In 1994 she entered into a sexual relationship with the deceased which lasted at least until early 1995. The plaintiff says that it lasted through to the deceased’s death. There is little doubt that the plaintiff was the chief manager of the business under the deceased’s superintendence.

9    One Anabel was employed in the business from 1995, initially again as a “receptionist”. She was promoted after a few months to the position of “co-ordinator” which seems to be an assistant to the plaintiff. Anabel says she formed a de facto relationship with the deceased in May 1995. Although forbidden by the deceased to become pregnant, she did fall pregnant to him in August 1996. The deceased persuaded her to have an abortion which she did on 11 September 1996. Two weeks later she says she decided to split up with the deceased. She said that the deceased strongly urged her to reconsider and the evidence shows that Anabel was tempted to do so.

10    I now turn in more detail to the week before the deceased’s death.

11    On Monday 28 October 1996, the deceased telephoned Anabel, and according to Anabel, said to her, “Anabel, I’ve got great news, really great news. I’m arranging for Michelle and some others to buy a share in the business and to run it for three weeks out of four. I will then work the last week of the month to tidy things up. This means that we could be together for three weeks of every four. You wont need to work - we’ll have a really great time together.” After conversation as to where they might live together if this arrangement came to fruition, Anabel suggested that they could share an apartment. However, the deceased said, “No I’ll have to stay at the hell hole, just as I have to at the moment.” Anabel knew that the deceased and the plaintiff were sharing the same room and so she said, “Where will you be sleeping. Will you still be sharing the room with Michelle?” The deceased replied, “Possibly we’ll need to share a room but you know that nothing is going on between Michelle and I any more so there’s no need to be jealous or make a big thing about it.” There was, what Anabel described as “argumentative conversation” which ended because someone came to the door at the deceased’s end of the phone.

12    Some explanation is necessary before I proceed. There is no doubt at all that for some years the plaintiff and the deceased had been sharing a bed in one (or perhaps two) of the suites at the club. The plaintiff’s version is that she and the deceased were sharing a bed, both being in the bed at the same time. The defendant’s version, based on what the deceased allegedly said to his mother and other people, was that the plaintiff and the deceased slept in relays using the same bed, but as they worked different shifts there was only one of them in the bed at any one time. The arrangement of sharing the bed was so as to maximise the number of suites that would be available to clients.

13    At least two explanations were put forward as to what the deceased meant by “this apparent prison” in his note. The defendant’s case principally was that this meant the prison where he was emotionally separated from Anabel. The alternative was that the prison meant being tied to the business 24 hours a day, seven days a week, without chance of any real relaxation.

14    It was this second style of prison that Anabel appears to mention as requiring the deceased to stay in the “hell hole”.

15    The evidence shows that the plaintiff and one Ian Smith, who appears to be the financial controller of the business, made an offer to purchase an interest in the business on 23 September 1996. This was a formal “initial proposal” contained in Exhibit DX07. Essentially it was that the plaintiff and Ian Smith would take 10% of the share capital with an option to purchase more shares, the deceased would work in the business for four months a year, Mr Smith eight months per year and the plaintiff would remain in her current role.

16    This was followed by another formal letter from the plaintiff dated 10 October 1996 in which the plaintiff sought a 15% share which would be financed by the business lending her $500,000. She submitted this offer on 10 October 1996. Mr Alexis who appeared with Mr Hudson for the defendant, said that these were oddly formal letters for people in a close relationship. However, I reject that criticism: it is often the case that people in close relationships do write formal letters to show that they mean a proposal to be put seriously as a matter of business.

17    The deceased wrote to the plaintiff in his own handwriting an undated letter which she says she received in the middle of October 1996. It is not clear whether this was before or after the offer of 10 October 1996, but what material there is points to it being in response to the offer of 10 October.

18    In order to appreciate some of the points in the letter, it must be noted that the plaintiff had been complaining for some time that she was being neglected by the deceased and from time to time she would accuse him of hating her because he paid so little attention to her.

19    The letter read:

“Michelle, I do not hate you. I’m sorry if this is what you think. To the contrary - I care for you and feel responsible for letting you down and for what happens in your future. I appreciate everything you have done for me - I know I would be in a far worse state if not for all your help.
Yes I desperately want to get out of this business - I feel totally trapped, I have no satisfaction and no peace of mind.
You tell me, you enjoy your job, I don’t understand why, however I know that if you had the full responsibility of the business on your shoulders, it would no longer be enjoyable but would become an unbearable commitment. You think I am being unfair or that I have no confidence in you because I wont support you if you are on your own to run the business. It is just that I don’t want you to end up in the same situation as I am in - in the same frame of mind - being trapped. I have confidence in you and believe you deserve the opportunity - however only if you had somebody responsible and committed to help you. This is for your own peace of mind and support. I am not deliberately excluding you from things I do - what I am doing is not enjoyable or anything to get excited about it is just another chore. I have not purchased land in Cairns I am just looking as usual.
I get angry with you when you do not save your money - I try to tell you it is not going to be there forever - to have something to show when you are out of the business - it looks like you are realising this too late - after people have taken advantage of you and borrowed etc.
I cannot change the way I have become - I’m tired of being around people - especially when you do the right thing by them and they let you down. Because I feel I am fair - then if I am cheated I become angry and become compelled to get justice through revenge.
I just need to get away from artificial people and on my own without having to rely on anyone but myself. I just want a simple comfortable life in a pleasant natural environment. Being able to do things on impulse with no binding responsibilities. I do care - please try too (sic) understand. Love Michael.”

20    It is interesting that there is no document at all to support the assertion in Anabel’s evidence that Michelle and others were buying a share in the business and were going to run it for three weeks out of four. Nor was anything put to the plaintiff along these lines. This being so I must conclude that either the deceased told Anabel something that was not factually true (perhaps not a lie in that he hoped it would become true shortly) or alternatively, that Anabel has not remembered the conversation correctly. It probably does not matter which is the true situation.

21    On Wednesday 30 October 1996, Anabel left a message on the deceased’s voicemail, “Michael it’s definitely all over. I’m going back to Melbourne. I don’t love you any more and I just want to be left alone. I don’t agree with the plans you have for our relationship.”

22    On Thursday 31 October, Anabel went to dinner with a female friend. She met up with an acquaintance named Lance and at 4 am Lance drove her home. They had coffee in her city apartment which was about five minutes walk away from 250 Pitt Street and she and Lance then went to her bed and they had sex together. They were both still in bed naked when Anabel heard the front door being unlocked. The deceased had a key and he entered the apartment, probably at about 5.15 am. Anabel got out of bed and met the deceased and said, “Michael, you shouldn’t have come in here like this. Get out - you’re not welcome. I’ve got someone with me. Get out.” The deceased said, “Where is he? I’m going to fucking kill him.” The deceased then told Anabel to get dressed so that they could have words on the fire stairs. They did have words on the fire stairs during which Anabel says the deceased was sobbing and crying uncontrollably, was very angry and kept saying “How could you do this to me. Why, why, why”.

23    The deceased said, “I’d like to speak to your father”. The evidence shows that Anabel’s father got up for work that morning at about 5 am intending to go to work at 6 am. At 5.33 am the deceased rang him and, because a mobile phone was used, the calls kept dropping out, but there were intermittent conversations up until 6.11 am. The deceased then left Anabel’s apartment and walked back to his office at 250 Pitt Street. He rang Anabel’s father again at 6.22 to 6.25 am and 6.32 to 6.36 am, all this being on Friday 1 November 1996.

24    Assuming that the time written on the note is correct, four minutes after this conversation ended the deceased wrote his note.

25    At 7 am on that day, two cleaners at the club observed that the deceased was acting strangely, walking in a daze and not acknowledging them. At about 8.14 am, the deceased again rang Anabel’s father and had a calmer conversation with him.

26    The deceased knew that Anabel was going to take the bus to Melbourne that afternoon in order to attend what she described as a “hen’s party”. He met her at a bus station near Central and spoke to her between 5 and 7 pm as a result of which Anabel missed her bus and went to Melbourne by plane. She says that the deceased was sobbing and crying and she left him crying and dejected.

27    Shortly after midnight on the evening of 1-2 November, Anabel telephoned the deceased.

28    At this stage I must break off the narrative to deal with the problem about evidence.

29    The National Crime Authority were investigating the deceased’s business. However, it is an admitted fact for the present case that the deceased had no inkling of any such investigation prior to his death.

30    In due course the National Crime Authority moved against the defendant, the other partner in the business. In the course of its investigation, the National Crime Authority legally tapped a telephone. The solicitor who was acting for the defendant was invited to the National Crime Authority’s office where a tape was played to him of what had been recorded by the National Crime Authority’s officers. The solicitor took notes and his notes are put in evidence in this case. The notes record the time of two telephone conversations and what the deceased said to Anabel, though not what Anabel said to him.

31    The material is contained in the affidavit of Mr Clarke, solicitor, who swore an affidavit in these proceedings on 5 October 1999 (DA06). Mr Ellison, who appeared with Mr E Cox for the plaintiff, objected to paras 10, 11 and 12 of this affidavit. These are the paragraphs which contain:

(a) the time of two telephone calls made by Anabel to the deceased; and

(b) the relevant part of what the deceased said to Anabel during those conversations.

32    Mr Ellison and Mr Cox put that statute forbids the reception of that material into evidence.

33 Before dealing with this submission I should note that the National Crime Authority were given a subpoena or the equivalent, to produce the tapes or transcripts to the Court. It objected to so doing and Registrar Irwin on 22 November 1999 decided that it should not be compelled to do so for the reasons the learned Registrar then gave. The Registrar said that whilst the National Crime Authority could not proffer any reason why the tapes should not be produced on the merits, the legislation, particularly the National Crime Authority Act 1984 (Comm) and the Telecommunications (Interception) Act 1979 (Comm) meant that the material should not be produced. The learned Registrar relied on the decisions of Slattery CJ at CL in Reg v Carmelo Micalizza - 13 November 1987, unreported; Wood v Beves (1997) 92 A Crim R 209; (1997) 137 FLR 436; Kizon v Palmer (1997) 72 FCR 409; (1997) 75 FCR 261 and (1998) 100 A Crim R 86.

34 Section 74 of the Telecommunications (Interception) Act 1979 provides that a person may give lawfully obtained information in evidence in an exempt proceeding. “Exempt proceeding” is defined in s 5B of the Act. The present proceedings do not fall within the definition of “exempt proceeding”. There is no statutory definition of “information”. Section 77 provides that neither information, nor a record obtained by the interception, is admissible, except in so far as various sections of that Act, principally s 74, permit it to be disclosed. Section 63 prohibits communication to another person or the giving of evidence in a proceeding, of lawfully obtained information.

35    Mr Ellison and Mr Cox say that I am bound by the decision of the Court of Appeal in Wood v Beves. They say that whilst the Full Federal Court in the various Kizon cases may have decided differently, that is really of no moment for a single Judge of this Court.

36    Mr Alexis and Mr Hudson merely submit that the Full Federal Court and Handley JA’s dissenting judgment in Wood v Beves should be preferred. It is just not open for me to take this course.

37    It follows that the learned Registrar was right when he rejected the application for production of the original tapes.

38    Two points, however, remain: (a) whether the notes of the solicitor who heard the tapes might be admitted; and (b) whether even if the contents of the conversations were not admitted, whether the fact that the calls were made is admissible.

39 As to (a), Mr Ellison and Mr Cox say that the position is rather like a solicitor who obtains material during a process of discovery for client A: that solicitor is not entitled to use that information for client B; see eg Harman v Home Department State Secretary [1983] 1 AC 280. It seems to me that this principle, plus the clear intent of Part VII of the Act extends the prohibition to the solicitor’s evidence.

40 As to (b), in the situation where solicitor’s privilege is relevant, often knowledge of the solicitor obtained other than by communications from his or her client is not privileged. Thus the state of the client’s trust account and sometimes even the client’s address is something which the solicitor may be compelled to disclose; see Re Furney [1964] ALR 814. However, the identity of the person who made the telephone conversation would seem to be a matter that would only have been disclosed by hearing the tape and so would be information. I have a little more doubt as to the time at which the conversations were recorded as being information. I do not know how this material was manifested; I assume it was through some independent gadget attached to the interception equipment. However, I believe that one should give a fairly wide meaning to the word “information” in the Act to accord with its general purpose. Thus I exclude this material as well. In any event, it could be remarked that without the identity of the person who phoned the fact that two conversations were recorded at certain times just after midnight on 2 November could not really advance the cause at all.

41 Thus in my view the Telecommunications (Interception) Act makes the material in Mr Clarke’s affidavit inadmissible. It is thus not necessary to deal with the objection made under the National Crime Authority Act 1984. However, I would note that I was not impressed with the submissions that ss 29A and following of that Act prohibited evidence being given in the instant case.

42    Accordingly, I must reject paras 10-12 inclusive of Mr Clarke’s evidence and I thus return to the narrative.

43    The evidence shows that the defendant called on the deceased at about 11 pm on the evening of 1 November. It would seem that the deceased’s father was still with the deceased when Anabel first rang him. There was a short conversation and later she rang again. Anabel says that the deceased said to her, “There’s nothing left in life for me now with you gone. I’m going to commit suicide. You have ruined me. I loved you so much. What for? You have deceived me.” Anabel told the deceased not to be silly, that he should come down to Melbourne and meet her family and they could sort things out, but the deceased kept repeating, “I’m going to commit suicide” and “I want you to promise me that when I’m dead you wont contact Michelle or even let her know of your existence and of our relationship, I don’t want to hurt her.” Anabel says that at about 6 am she finished the phone conversation and suggested that the deceased ring that afternoon. She said that the deceased did not ring until 5.30 pm, just as she was leaving for her hen’s party. She did not take the call. She asked her father to take it which he did. She later tried to telephone the deceased during the night of 2-3 November, but was unable to make contact with him.

44    The plaintiff says in her affidavit that on Friday 1 November 1996 she was woken by the deceased. He asked the plaintiff to change his appointments and then went to bed about 7 am. That night the deceased’s father came to see him about 11 pm. It was a busy night and the deceased spent the whole night in his office on the 6th floor. At about 4 am on the morning of 2 November, the deceased said that he had a headache and chest pains and he laid on the lounge. The plaintiff went up and visited him about four or five times and finally persuaded him to come to bed at 7 am on Saturday 2 November. She says that on the afternoon of 2 November, they both woke up at about 3 pm and she started to get ready for her shift which commenced at 4 pm and the deceased went to his office. She never saw him again, though she did speak to him at about 7 to 7.30 pm on Saturday 2 November when she telephoned him to say that a client had brought him in some dinner, could she bring it up to him and he said “No I’m not hungry yet. I’ll let you know when I want something to eat.” She then says that after speaking on the telephone to the defendant she and a security guard broke into the office at about 5 am on 3 November 1996 and found the deceased’s body. When she was telephoning the police from the office she noticed the note on the deceased’s desk which she had not seen before. She left the note for the police to collect.

45    In her subsequent affidavit (PA09), the plaintiff said that she and the deceased went to bed at about 7 am and the deceased got up at 4 pm the same day so that he could not have rung Anabel’s father at 8.30 am on 1 November. However, in cross examination it was shown that there was some confusion on the dates and it was Saturday 2 November, not Friday 1 November that the plaintiff was talking about. This is consistent with the rest of the evidence. She said that both she and the deceased got out of bed together at 4 pm. He had a shower while she started work. She said, “Michael and I almost always went to bed together. We would have cleaners clean the room, the shower and make the bed for us. Michael would sleep most of the day and get up after 2 pm. I would normally get up around mid-day and then start work. Michael would always bring the cats downstairs with him and take them to the room. He would always feed them before we went to bed. The only difference in hours between us would be maybe two to three hours when he would always sleep a little extra.”

46    The note is propounded as a codicil to the will that the deceased made in 1990. The effect of the codicil would be to remove from the residue the half share of the business and the unit at Pacific Mirage Surfers Paradise. However, these gifts amount to about $2.4 million on an estate which would appear at present to have a value of about $4.5 million, though the deceased may have thought that it had a greater value because the business assets were affected by the activities of the National Crime Authority after the deceased’s death.

47    The note was not executed as a will. Accordingly, for it to be admitted as an addendum to the will, an order will need to be made under s 18A of the Wills Probate and Administration Act 1898. This section provides:

“18A(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.”

The present case is, of course, concerned with “an amendment of such a will”.

48    Mr Ellison and Mr Cox say that the case is simple. The authorities on s 18A say that three questions must be asked:

(a) Is there a document? and the answer to that question in the present case is obviously “Yes”;

(b) Does the document embody testamentary intention? Again they say the answer is “Yes”; and

(c) Did the deceased intend the document, without more, to operate as a will or codicil? and again the submission is that the answer is “Yes”. The document is described by the deceased as an amendment to his present will and he requests his wishes to be carried out in full and he is conscious of the law on the subject as he confirms he is of sound mind.

49    The defendant does not really dispute these matters. His case is that the deceased was not of sound mind, memory and understanding when he published the note.

50 It is clear on the authorities that the mere fact that the document propounded as a will under s 18A is also a suicide note does not automatically disqualify it. In Re Hodges (1988) 14 NSWLR 698, Powell J, after reviewing the authorities, held that the suicide of the testator following upon the execution of a will does not give rise to any presumption of the testamentary incapacity. In that case the testator was in a state of severe depression and wrote and executed a will in the presence of two friends leaving his property to a de facto wife and within a short time thereafter shot himself. The document was upheld.

51    The defendant says that the evidence of Anabel, which should be accepted as it was uncontradicted and Anabel was unaffected by the cross examination, shows that the deceased was in a depressed state of mind when he wrote the note. He wrote the note only four minutes after finishing a very emotional conversation with Anabel’s father, after he had just found Anabel in bed with another man, in circumstances where he was accusing Anabel of betraying him.

52    One problem with that submission is that whilst the note was written as at 6.40 am on 1 November, as far as one can tell, the deceased did not commit suicide for at least 37 hours after the writing of the note. However, the fact that he displayed it on his desk shows that it was to be operative.

53 Where a will is actually executed in the prescribed way, one looks at the state of mind of the testator at the time when he or she signed the will, though it is sometimes the case that the date of giving instructions is more material. However, with a document propounded under s 18A, it may be that the relevant time is the time of publishing the “will” rather than the time of its signing. This matter was discussed by the Court of Appeal in Re Masters (1994) 33 NSWLR 446, see particularly Priestley JA at p 469. A problem may arise of finding that the deceased did intend at some point in time for the document to operate as a will and that that intention is still current as at the date of death; see eg Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330, but that problem does not arise in the present case. The position of the note leads to the inference which I draw that as at shortly before the suicide, the deceased intended the note to operate as his last will.

54    The difference between 1 November and 3 November might be quite important. Even if the deceased was in a state of complete turmoil as at 6.40 am on 1 November, apart from emotional scenes with Anabel and emotional conversations with her, and apart from the observation of the cleaners at 7 am on 1 November, the deceased appears to have presented a brave face to the world. There is nothing in the plaintiff’s evidence to show that she was put out by the deceased’s appearance except for his complaining of chest pains, and no evidence was called from any of the other employees of the club that anything was noticeable about the deceased during 1 and 2 November. Indeed, even the telephone conversation with Anabel’s father, that took place about 8.30 am on 1 November, showed that the deceased had considerably calmed down.

55    Evidence was given by two psychiatrists, one for each side. As is almost always the case in this sort of litigation, neither psychiatrist had ever seen the deceased and all their views were formed from documents which had been briefed to them.

56    The psychiatrist called by the defendant was Dr Phillips. The doctor said that it was accepted wisdom within the psychiatric profession that a person experiencing emotional pain, including anger and depression, is partially deprived of the capacity to think in a measured and dispassionate manner. He considered that it should be accepted that at the time when the deceased wrote the note he suffered substantial perturbation of his mind, that the intensity of his psychological disturbance being so great as to partially deprive him of the ability to think in a measured, rational and objective manner. On balance, on the information available to him, Dr Phillips doubts whether the deceased was in a mental state where he would have been able to reflect, in a measured manner, on his intentions and to reach a decision likely to remain meaningful to him in the longer term.

57    The psychiatrist called for the plaintiff was Dr Maguire. He was of the view that there was no evidence to suggest that the deceased did not understand the nature of his assets, he expressed his desire to amend his present will and that whilst it was reasonable to conclude that the deceased was significantly distressed at the time he wrote the note and when he committed suicide, there was insufficient evidence that his mental state was so disturbed that he could be said to have lacked testamentary capacity.

58    In their affidavits and in cross examination, the doctors were asked about the size of the estate, the fact that there was a large benefit given to the plaintiff which had the effect of reducing substantially the benefit that the deceased’s son would take under the will, that there was no benefaction to Anabel, that it might be said that the “will” was to punish Anabel for what she had done by leaving money to her rival. I must confess that none of this really impressed me very much. There was also debate as to whether a person who says in his will that he is of sound mind thereby signifies that he is afraid that other people will think he is not. This, to my mind is speculation. There are cases where a person may so conduct himself or herself but there will be many cases where he or she will not.

59    There is an additional matter, and that is, it is probable from the evidence that the defendant also asked a Dr Strum, a psychiatrist, to give an opinion, yet no report from Dr Strum was ever forthcoming. The conclusion must be that nothing that Dr Strum said could have assisted the defendant’s case. I should note at this time that the culture in probate proceedings has been that both parties are assisting the Judge to get at the truth and the Court does expect all medical evidence to be produced, whether favourable or unfavourable to a party. It is regrettable that just because these are hotly contested proceedings involving a lot of money the prevailing culture does not seem to have been observed in the instant case.

60    My conclusion from reading the affidavits and listening to the cross examination was that Dr Phillips’ evidence really is no more than putting forward possible hypotheses of what might have happened. He was not, of course, in possession of the whole of the evidence that is before the Court and his mind seems to have been particularly directed to the emotional problems with Anabel. It is clear that the deceased had other problems, especially the sense of his inability to escape from a business where he had to work most weeks, seven days a week, 24 hours a day, at least in the sense that members of the staff would be ringing him up to solve problems at all times of the day. Really Dr Phillips’ evidence goes no further than to say that the doctor has a doubt about the deceased’s capacity because of the deceased’s emotional problems at the time.

61 Mr Alexis said that the onus is on the plaintiff and that if, on seeing the whole of the material, the Court was of the view that it was not satisfied that the deceased had testamentary capacity then it would find against the “will”. This is theoretically correct. However, the plaintiff’s duty is in the first place discharged by establishing a prima facie case and the quantum of the evidence sufficient to establish the testamentary paper will depend upon the circumstances of each case. This is because the degree of vigilance to be exercised by the Court varies with the circumstances. Once the proponent establishes a prima facie case, the onus probandi lies upon the party impeaching the will. To displace a prima facie case of capacity mere proof of serious illness is not sufficient; there must be evidence that the testator’s state of mind was so affected as to make him or her unequal to the task of disposing of his or her property. The above statement is, of course, a summary of what Isaacs J said in Bailey v Bailey (1924) 34 CLR 558, 570-572.

62 The principles to be applied are clearly stated in Re Estate Griffith (7 June 1995, unreported), where Gleeson CJ, following Worth v Clasohm (1952) 86 CLR 439, said:

“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the Court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind memory and understanding at the time of execution of the will, probate will not be granted.”

63    However, in matters of this sort, as Kirby P said in the same case:

“A duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding. Sanity is presumed until the contrary is shown.”

That statement clearly flows from Burrows v Burrows (1872) 1 Hagg Ecc 109; 162 ER 524 and Re Hodges (supra) at p 706.

64    The difficulties are not the statements of principle, they are usually caused by the circumstances of each case and the fact that the deceased is dead, the expert witnesses usually have not seen him and the lay witnesses have seen only part of the picture.

65    Writing extra judicially, Myers J, a former Judge in Probate, in “Testamentary Capacity” (1967) Australian Bar Gazette Vol 2, No 2, p 3 said:

“…a testator must be able to remember, to reflect and to reason. He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult with himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or serve to confirm capacity on the other.”

66    In Vane v Lord Dungannon (1804) 2 Sch & Lef 118, 130-131, in the context of the exercise of a power of appointment when the appointor was angry with one of his children, Lord Redesdale LC said:

“As to the circumstances of anger and resentment to which it is alleged that these appointments were made I do not think it safe to advert to them. There would be no end of such objections if they were to be admitted grounds for questioning appointments; in almost all these cases where there has been an inequality in the appointment something of that kind has existed.”

67 The locus classicus of the law in this area is the statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 565. His Lordship said, in respect of the power to devise:

“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.”

68 The Court of Appeal has examined the law in some detail in the last few years particularly in the unreported decisions of Mulray v Ogilvy - 12 June 1991, unreported; Re Estate Griffith (supra) and Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244. In the Griffith case Gleeson CJ said as to delusions:

“Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another’s bounty, and the question of its falsity is capable of objective determination, the task of the Court is relatively straightforward. However, there may be cases in which one person’s estimation of another’s claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.”

69    In the instant case, the “will”, on the face of it, appears to be rational. There is no doubt at all that whilst it might be exaggeration to say that the plaintiff and the deceased were living in a de facto relationship as at the date of his death, there was a close emotional bond between them. They occupied the same bed. I am more inclined to accept the plaintiff’s evidence that they did sleep together rather than the conclusion, based on mainly circumstantial evidence, that they slept in relays in the same bed. Even Anabel’s evidence, as Dr Maguire remarked, shows that there was a bond of affection between the deceased and the plaintiff because he hid Anabel’s relationship with him from the plaintiff and indeed, it would appear, even when he was extremely emotionally upset because Anabel was departing the scene, he kept a bold face in front of the plaintiff. The defendant says this is because he did not want to lose his manager and business associate, but I think the evidence of the bond is stronger than that.

70    The defendant says that it was unlikely that a person in the position of the deceased would have wanted to water down the benefit that would flow to his son. It is, perhaps, artificial to focus on the son, because there would also be a watering down of the benefit to the deceased’s parents. It is a rather odd will in this day and age that a 36 year old man would leave such a great estate to his parents, but the fact that their benefaction would be watered down is equally significant. However, the significance of the lessening amount to the son would not be illogical in that there was no evidence that the deceased had seen his son for some years.

71    In his note, the deceased clearly understood that he had at least two valuable items of property. He knew that he had made a will. He showed the appreciation for the loyalty which the plaintiff had shown to him, and he left her substantial property. I do not consider that the evidence, in all the circumstances, discloses that this deceased did not understand what he was doing.

72    Accordingly, I find that the deceased intended the note to constitute an amendment to his will.

73    There will be some need to consider the precise form of the order in the instant case. I assume that the present grant in common form will have to be recalled and then a new grant made incorporating the document I have held to be a codicil. This is complicated by the fact that the original note appears to have been lost, though I have in evidence a photograph made for the Coroner (PX16) which is identical to the photostat attached to the affidavits. There is then the question of costs to consider.

74    Accordingly, I will merely publish these reasons and stand the matter over to Monday 2 April 2001, when these matters can be further considered. If some other Monday is more convenient to counsel, they should let my Associate know at least a week beforehand.

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Last Modified: 03/13/2001