Shaw & Anor v Crichton

[1996] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S120 of 1995

B e t w e e n -

GEORGE THOMAS SHAW and LEILA SHAW

Applicants

and

JOHN CRICHTON and NEIL CRICHTON

Respondents

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 2.57 PM

Copyright in the High Court of Australia

MR A.R. EMMETT, QC:   If it please your Honours, I appear with my friend, MR J.E. SEXTON for the respondents.  (instructed by Phillip Bushby International)

MR S.A. LEVITT:   If it pleases the Court, I appear for the applicants.  (of Stewart Levitt & Company)

Your Honours, at the outset, I seek to establish that the summary of argument which your Honours have before you is in fact styled Applicant’s Amended Summary of Argument. 

DAWSON J:   Yes, we have that.

MR LEVITT:   Your Honours, there were some further authorities which I would seek to make available to your Honours which I have recently furnished my friends with a copy, together with the specific exhibits and excerpts of transcript which are being addressed in the summary of argument.

TOOHEY J:   Are these authorities additional to the Part A and Part B list?

MR LEVITT:   They are, your Honour.  I do apologise.

TOOHEY J:   Well, given the amount of time available to counsel on either side, Mr Levitt, it is asking a great deal of the Court to - you have, what, nine authorities under Part A, another five under Part B and additional authorities.

MR LEVITT:   Your Honour, the additional authorities which I have just handed out affect only two further authorities that only go to two very limited propositions which may or may not be of any importance, depending upon the view that your Honours take of the rest of my submissions and in respect of the balance, they are just a series of 19th century authorities from the Victorian Supreme Court which all go to the same proposition, that is that the uncorroborated evidence of a witness as to his transactions with the deceased, which evidence is self-serving, should be treated with some caution.  That is the only matter which all of the authorities go to - they are just simply the ratio of each and every case in respect of which the supplementary authorities have been handed to your Honours.

This case was concerned with three wills by the deceased made in a period of two and a half years, the first of which ‑ ‑ ‑

GUMMOW J:   We are seized of that, Mr Levitt, that is why we read all these papers before we come.  Do you not have to face the question - it might be framed this way:  whichever view of the law is correct, assuming there is a difference in the view of the law in the Court of Appeal, all the Court of Appeal members were agreed that applying their views to the facts there was only one answer, which was that the appeal from Justice Bryson should fail.

MR LEVITT:   Your Honours, I do have to face that.  In my submission, none of the judges addressed the proper test which had emerged from the line of authorities of which Timbury v Coffee was the most recent but was interpreted differently by the Court of Appeal and, I would submit, incorrectly.  The Court of Appeal and his Honour Mr Justice Bryson appeared to take the view that Timbury v Coffee was authority for an idea that there was a kind of a delusion that did not necessarily have to proceed from a mental disorder and, in fact, on the other hand, Mr Justice Powell took the view that every delusion had to be evidence of a mental disorder.

DAWSON J:   But what does that matter when the test is well accepted that the testator has to know the extent of an estate, the claims on a bounty and the effect of the disposition.  They are the questions in the end.

MR LEVITT:   In this particular case, your Honour, the ‑ ‑ ‑

DAWSON J:   It is immaterial whether the delusion is called insane, or not insane.  If, in fact, the delusion is such as to impinge on those questions in a particular way, that is the end of the matter.

MR LEVITT:   It may be immaterial about what it is called, your Honour, but, in my submission, what is important is the nature of the delusion.  Delusion has to be the product of a mental disorder because if it is not the product of mental disorder, it is indistinguishable from a prejudice.  It becomes merely a belief which may be fixed and unshakeable but nevertheless may well be perfectly explicable in terms of the person’s own personal experience of life and unless it can be affixed with a character of an idea which proceeds from some mental derangement, or mental disorder, as Mr Justice Powell said, then it lacks the character where it can be distinguished from what is, in general parlance, known as a prejudice and Mr Justice Santow ‑ ‑ ‑

DAWSON J:   It may, but these are just definitional terms.  They do not matter.  If, in fact, at the end of the day the testatrix did not satisfy one or other of those three tests, and that is what is important, then she did not have testamentary capacity.

MR LEVITT:   Your Honour, the only way in which it could be held that ‑ ‑ ‑

DAWSON J:   You do not dispute that those are the relevant tests, do you?

MR LEVITT:   No, no, I do not dispute they are the relevant tests, your Honour, but the only way in which it can be held in respect of the specific facts of the case that she did not - or of any particular case, that a testatrix lacked testamentary capacity arises in the event that it is found that there was some general mental impairment or, alternatively, if there was a specific delusion.  Now, if there was specific delusion, in my submission, there has to be evidence of that delusion having proceeded from some kind of mental disorder, whether it was alcoholism, or some other recognisable form of condition, which is essentially the proposition which Mr Justice Powell advanced and for which Timbury v Coffee is further support, because in that particular case there was a specific finding of alcoholism and there was some textbook medical evidence as to what affect alcoholism had on the human brain and the symptoms manifest by the testator in that case were consistent with those symptoms.

In this particular case, there was no evidence which was capable of being raised to the level where it would display testamentary capacity of any mental disorder which could have supported a delusion and ‑ ‑ ‑

DAWSON J:   There was the behaviour of the testatrix.

MR LEVITT:   Well, the court itself put that in the lowest category and Mr Justice Santow and Mr Justice Powell, for that matter - Justice Santow in Easter v Griffith and Justice Powell in this case - said that, and this is in fact the law, that the testatrix can be as batty as a fruit cake as it were - they were Powell’s words - but if that eccentricity does not impact on her testamentary capacity, it is irrelevant.

DAWSON J:   That is the point, yes, but if it does, then its cause, even if you cannot isolate it, it does not matter.

MR LEVITT:   Well, your Honour, in my submission, there is no evidence that lifestyle factors impinged upon the testamentary capacity of the testatrix in this case.  In fact, none of the judges found in fact they did.

DAWSON J:   No, but there was a delusion, whatever its source, concerning Mr Crichton, that is the point.

MR LEVITT:   Well, your Honour, the interesting proposition is if there were such a delusion - let us take a step back a moment.  In fact the only evidence of that delusion was in the form of John Crichton’s own evidence.  There is authority in the appeal of Perry and other decisions to which I could take your Honour, for the proposition that where there is in fact a question as to the reliability of an allegation between a self-interested party and a deceased, that that evidence should be treated with great caution and psychiatric evidence cannot be used to strap up that kind of proposition.  Psychiatric evidence cannot be used to prove whether or not a person did or did not steal from somebody, or whether that person had a false or true view of that person because none of the persons who were in a position to observe that behaviour to know whether it occurred were in a position to testify, with the exception, in this case, of John Crichton himself but his evidence then comes within that category where a cautionary approach should be taken to its weight.

So what I am putting to your Honours is that, firstly, there is no evidence that she suffered from any condition which was capable of supporting that delusion.  Secondly, that in terms of her own experience ‑ and if you take the definition of “delusion” in Bull v Fulton which found favour with the Court of Appeal, “a fixed and incorrigible false belief inexplicable by reference to culture, religion, surroundings”, one has to, in my submission, take the words “surroundings, education, culture” and give them their natural meaning which has to involve the experience of the individual, her personal history and there is evidence that was before the court that the testatrix had a bad marriage to the uncle of the respondents in this case, that she had a real prejudice against not only her ex-husband but also his family, and that the attitude that she manifested towards the respondents was completely consistent with her personal experience.

DAWSON J:   But that does not explain, for instance, why she changed the bequests to the charities to this particular person who had no real claim on her bounty.

MR LEVITT:   Well, your Honours, Mr Justice Handley in fact in a transcript, and I can take your Honours to the specific section, conceded that in fact there was some claim which the Shaws did have on the bounty for the continuous service ‑ ‑ ‑

DAWSON J:   They were more than recompensed for that during the testatrix’s lifetime.

MR LEVITT:   Well, so; indeed were the Crichton’s, your Honour ‑ ‑ ‑

DAWSON J:   Maybe.

MR LEVITT:   It would seem that according to the recognised concepts of the way in which old people use the control of their potential legacy, as referred to in the case of Van Alst, the testatrix was using her estate for a deliberate purpose.  In fact, after a period of ten years estrangement, the Crichtons were only brought back into her life after she had contacted her brother ‑in ‑law and said, “I want to make a will”.  And then there was a period of two years in which they remained on the scene and then for the balance of her life, which endured for another two, they were entirely absent.

Your Honours, it is my submission, that if the testatrix’s delusion, as it were, was in fact determinative of her bequests, then why was it that she progressively eliminated other beneficiaries and, indeed, she did not confine her removal of beneficiaries just to the Crichtons.  For instance, she initially removed John Crichton and left in the Galiehs and then removed the Galiehs as well, and the charities, so if she had a specific delusion towards John Crichton, how does one explain the elimination of other beneficiaries too.  But it was all of the court’s findings that it was a specific delusion alone.  There is no finding of mental disorder.....this specific delusion at all which determined the behaviour of the testatrix in relation to her testamentary bequests.

Your Honours, the further distinguishing consideration in this case was that we are not concerned here with a case of an ordinarily inofficious will.   None of the potential beneficiaries were people who in the ordinary sense of the word could be said to be people with natural claims on the bounties but rather were people who were potentially objects of her generosity.  In my submission, that is a factor which distinguishes this case from the run of the cases in appeal.  And it also has to be borne in mind, as a very important consideration, that the whole issue of testamentary freedom was really at stake in this case because what ‑ ‑ ‑

DAWSON J:   The issue of testamentary capacity, maybe, but not testamentary freedom and the issue of testamentary capacity raises that question in a particular way.

MR LEVITT:   What I am suggesting, your Honours, is that what has effectively happened is that the court has worked backwards, taken the view that it does not like the applicants as beneficiaries, and then isolated a particular attitude that the testatrix - towards a single beneficiary, who also happened to be the principal respondent, to ground a finding of a specific delusion against that person, in circumstances where it was largely uncorroborated by the medical evidence and in circumstances, too, where the allegation of delusion was not capable of corroboration by virtue of the death of the deceased and the self-serving nature of the statements made by the only person who could bring any material to bear on the subject.

DAWSON J:   But you are placed with a very big obstacle, Mr Levitt, are you not, because really you have concurrent fundings of fact against you.

MR LEVITT:   Well, not to this extent, your Honours, because whereas the majority of the Court of Appeal, and Mr Justice Bryson did not even make a determination on the question of mental disorder - - -

DAWSON J:   Sure, but they made a determination - each court made a determination on the question of testamentary capacity.

MR LEVITT:   They did, your Honour, but they did so on the basis of a conclusion that the testatrix was suffering from a specific delusion for which, in my submission, firstly that they used the wrong test because, three out of the four judges, that is two out of three in the Court of Appeal and Mr Justice Bryson himself at first instance, applied the wrong test and said that it did not matter whether or not what they called a delusion and to find in a way that made it indistinguishable from prejudice - which is what many people bring to bear in the making of a bill who are perfectly sane.  That was one position.

Mr Justice Powell, on the other hand, made a finding that the medical evidence was capable of supporting a finding of a delusion and therefore made that conclusion but it would appear that all of the judges appear to depend upon an entirely inaccurate rendition of Dr Russell’s evidence, from which Dr Russell substantially resiled himself in evidence.  In fact, the actual words attributed to Dr Russell in Justice Bryson’s judgment, and extracted in the judgments of the majority in the Court of Appeal, were specifically resiled from by Dr Russell in his own evidence, as to whether or not he was speaking in terms of a probable, or possible, state of mind.

But, your Honours, what appears to have happened in the decisions of three out of the four judges, your Honours, is that there has been a break with the past in terms of what is necessary to prove in order to substantiate testamentary capacity, or what has to be overcome in order to sustain such a finding and there is a schism in the Court which would make it very difficult for any person seeking to prove a will to be able to say with any confidence whether they can sustain the claim to be in control of their faculties.  And the converse proposition could be advanced whereby, for example, a person who had left their estate to their wife on the assumption that their wife was

in fact faithful, but it was later proved that she was unfaithful, could have their will set aside because of some evidence that could be adduced that a positive view that somebody had about somebody else was a delusion as well. 

In other words, once one gets to the stage where one is using the word “delusion” loosely, and in a sense which was specifically rejected by Mr Justice Powell and the line of authorities earlier, one finds oneself in the position where the testamentary wishes of a deceased cannot be expressed with any confidence as to their enforceability.  Thank you.

DAWSON J:   Thank you, Mr Levitt.  We need not call on you, Mr Emmett.

Any appeal in this matter would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  Special leave to appeal is accordingly refused.

MR EMMETT:   I am instructed to ask for costs.  It really is a case, in our submission, where a special order should be made.  It really is the costs of the appeal at the expense of the residuary estate which is a number of charities and other relations who have nothing to do with the proponents of either will that they should not be cheated in a sense of their entitlement by reason of an application which, in our submission, was futile.

DAWSON J:   Yes.  Mr Levitt, what do you say.

MR LEVITT:   Your Honour, in my submission, the words used by his Honour Mr Justice Powell almost invited the special leave application, even of his criticism of the raison d’etre of the other judges and, in my submission, it would not be a case where costs ought to be made in the ordinary course.

DAWSON J:   Do you wish to add anything, Mr Emmett?

MR EMMETT:   No, your Honour.

DAWSON J:   The application will be refused with costs.

AT 3.18 PM THE MATTER WAS CONCLUDED