Spoehr v Health Services Charitable Gifts Board - [2014] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SPOEHR v HEALTH SERVICES CHARITABLE GIFTS BOARD
[2014] SASC 171
Reasons for Decision of The Honourable Justice Gray
6 November 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - EVIDENCE - ONUS OF PROOF AND WEIGHT OF EVIDENCE
This is an application for judgment by consent that the court pronounce against the force and validity of the alleged will of the deceased made in 2001 and, in lieu, grant letters of administration of the deceased’s estate to the plaintiff. The sole surviving beneficiary under the deceased’s will was the Royal Adelaide Hospital Research Fund. It was alleged that the deceased lacked testamentary capacity at the time of the making of the will. There was evidence before the Court that the deceased suffered delusions, including delusions regarding the paternity of his children. The parties agreed to settle the action on terms that the Royal Adelaide Hospital Research Fund would receive $200,000.00, the deceased’s granddaughter would receive $85,000.00 and the remainder would be divided equally between the deceased’s three children. A further application was made for the approval of a compromise of a proposed family provision action on behalf of the granddaughter of the deceased.
Whether the deceased lacked mental capacity at the time of the making of the will. Whether the granddaughter’s interests are adequately protected by the terms of the agreed settlement.
Held:
1. Circumstances exist to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the will. No party has come forward to tender any evidence or make any submission that the deceased did in fact have capacity at the relevant time. In these circumstances, it is appropriate to make an order pronouncing against the validity of the will.
2. The granddaughter’s interests are adequately protected by the terms of the agreed settlement.
Supreme Court (Civil) Rules 2006 (SA) r 227 and r 257, referred to.
Re Muirhead [1971] 1 ALL ER 609; In the Estate of Edwards (1981) 28 SASR 380; Executor Trustee Australia Ltd v Henderson (2006) 244 LSJS 43; Re Grey Smith (deceased) [1978] VR 596; In the Will of Pearce (1945) 46 SR (NSW) 71; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Lewis v Gersace (Unreported, Supreme Court of South Australia, Peek J, 11 March 2014); Re Levy (No 2) [1957] VLR 662; Banks v Goodfellow (1869-70) LR 5 QB 549; Timbury v Coffee (1941) 66 CLR 277; Re Estate of Griffith; Easter v Griffith (Unreported, Supreme Court of New South Wales, Santow J, 17 June 1994); Murphy v Lorenzi (Unreported, Supreme Court of New South Wales, Bryson J, 21 October 1996), considered.

SPOEHR v HEALTH SERVICES CHARITABLE GIFTS BOARD
[2014] SASC 171
Civil
GRAY J.

This is an application for judgment by consent pursuant to rule 227 of the Supreme Court (Civil) Rules 2006 (SA) that the Court pronounce against the force and validity of the alleged will of Gaetano Castiglione, the deceased, made on 28 September 2001, and, in lieu, grant letters of administration of the deceased’s estate to the plaintiff. If the Court makes such an order, a second application is then made pursuant to rule 257 of the Civil Rules for the approval of a compromise of a proposed action by a granddaughter of the deceased, Rebecca Spoehr, under the Inheritance (Family Provision) Act 1972 (SA) in relation to the deceased’s estate.
On 11 August 2014, I made orders in the terms sought by the plaintiff and indicated that I would publish reasons for my decision at a later date.
Background
The deceased died on 2 June 2012, his wife having predeceased him on 1 September 2006. The deceased is survived by three children, Rosa Adriana Spoehr, known as Adriana, the plaintiff in the present proceedings, Aloisa Rita Kotsiou and Gateano Franco Castiglione. The only known testamentary instrument of the deceased was an alleged will dated 28 September 2001. Under the terms of the alleged will, the deceased gave the whole of his estate to his wife provided that she survived him by 28 days and, in the event that she did not, gave the whole of his estate to the Royal Adelaide Hospital Research Fund for the purpose of research. Pursuant to the Health Services Charitable Gifts Act 2011 (SA), a testamentary bequest to the Royal Adelaide Hospital Research Fund vests in the Health Services Charitable Gifts Board.
On 14 December 2012, Adriana Spoehr commenced an action seeking a grant of letters of administration in relation to the deceased’s estate on the ground that, at the time that the deceased purportedly made the alleged will, he lacked testamentary capacity and therefore died intestate. The Board was named as the defendant.
By deed dated 5 May 2014, the parties agreed to settle the action on terms, inter alia, that Adriana Spoehr seek an order pronouncing against the alleged will and, if successful, subsequently seek a grant of letters of administration of the deceased’s estate. The terms of the settlement were that the defendant would receive the sum of $200,000.00, the deceased’s granddaughter, Rebecca Spoehr, would receive the sum of $85,000.00 to be held on trust for her by her parents, and the remainder of the estate would be divided equally between the deceased’s three children.
The Court was informed that the net value of the estate following the payment of legal expenses was approximately $1,800,000.00. The deceased’s children, who would be the only persons entitled to benefit were the deceased’s estate to be administered in accordance with the laws of intestacy, each consented to the orders sought. The Board, the sole beneficiary under the alleged will, also consented to the orders sought. Rebecca Spoehr is under a disability such that it is necessary to obtain court approval for the settlement of her proposed family provision application.
On the hearing of the application, the plaintiff tendered a number of affidavits, including affidavits of: Elizabeth Burke, the solicitor for the plaintiff; Adriana Spoehr and Gateano Castiglione; Rachel Sarah Wilson, the granddaughter of the deceased; Kevin Spoehr, the son in law of the deceased; and Mira Knezevic, an acquaintance of the deceased’s family.
The Application to Pronounce Against the Validity of the Deceased’s Will
Facts
Adriana Spoehr deposed that the deceased was born in Italy in 1930. She said that the deceased was a strict and violent man. Adriana was made to work hard from a young age and was responsible for looking after her younger siblings.
From about 1981, Adriana would see the deceased once or twice per week. He experienced mood swings. On some occasions, he would be aggressive and loud. On other occasions he would be “hysterically fine – really happy and full of energy, almost manic, talking a lot”.
Adriana recalled that in about 1998, the deceased’s outbursts concerning his other children, Gaetano and Aloisa, changed from being general comments about how their behaviour was such that they could not be his children, to specific allegations that he was not their father. The deceased made allegations that his wife had been unfaithful to him.
In March 2000, the deceased made enquiries about procuring a lie detector test so that he could find out whether his wife was having an affair. The deceased’s wife took the test and passed. The deceased said that these results indicated that the person that administered the test was either Dutch or German, and falsified the results of the test as a sign of ethnic unity with his wife, who was born in Germany.
The deceased made accusations that his neighbour had been poisoning his plants. The deceased had surveillance cameras installed at his house. The cameras did not detect any suspicious activity, but the deceased insisted that the neighbour was very clever and could get past the cameras undetected. Upon discovering a dead plant in the front yard of Adriana’s house, the deceased claimed that his neighbour must have located Adriana’s house and come there to poison her plants.
On 8 September 2000, the deceased informed Adriana that the police had confiscated his guns the night before and had issued a court order requiring him to appear that day. This Court was provided with a copy of a judgment of the Magistrate’s Court dated 30 January 2001 which related to a restraining order issued against the deceased in relation to his neighbour. That judgment indicated that the deceased had made several complaints to the police regarding his neighbour allegedly poisoning his garden. The neighbour had complained that in May 1999, the deceased had said to him that “This will end with your life” and had made a gesture with his fingers that the neighbour interpreted as being a reference to a firearm. The judgment also recorded the neighbour’s complaint that the deceased was continuing to harass him after he had relocated.
On 10 October 2000, the deceased phoned Adriana and asked her to visit. When she arrived, she found her mother lying in bed covered in blood. The deceased told Adriana that his wife had fallen into the empty swimming pool in the backyard. Adriana telephoned the family doctor, who attended at the house. The doctor indicated that the deceased’s wife’s situation was very serious and told the deceased to phone an ambulance. However, after the doctor departed, the deceased refused to phone an ambulance. The deceased’s wife was later admitted to the Royal Adelaide Hospital for two weeks. She refused to discuss the incident with anyone.
On 12 May 2005, the deceased visited Adriana at her house. The deceased asked Adriana to obtain a toothbrush or hairbrush belonging to her sister, Aloisa. He said that he wanted to send it for DNA testing. He said that Gaetano had already given him a toothbrush.
As earlier mentioned, the deceased died on 2 June 2012. Adriana Spoehr deposed that extensive searches of the deceased’s property failed to locate any additional testamentary documents left by the deceased. The deceased’s alleged will was prepared by Fletcher & Lawson Solicitors. The court was informed that Fletcher & Lawson no longer has any records relating to the deceased.
Kevin Spoehr, the husband of Adriana, deposed of many of the same matters as Adriana. In particular, he said that the deceased was highly abusive toward his family, particularly his wife. He said that the deceased’s erratic behaviour became more marked during the 1990s. The deceased told him that Gaetano and Aloisa were not his children.
Rachel Wilson is the daughter of Adriana Spoehr and the granddaughter of the deceased. She deposed that she lived with her grandparents until the age of three, after which she continued to visit them about once or twice per week. She deposed that the deceased had regular explosive outbursts, which would often be directed towards his wife. Rachel recalled an occasion in about 1999 when the deceased said that Gaetano was not his son. Rachel lost contact with her grandparents for some years.
On 28 March 2011, Rachel visited the deceased at his home. She recalled that everything in his home was padlocked, including the chicken shed, and that infrared cameras had been installed. Thereafter, Rachel recommenced visiting the deceased on a weekly basis. She recalled that the deceased would say strange things. He said that when Aloisa used to clean his house she would steal things. He said that Aloisa would hide the deceased’s underwear in her pants and give the deceased Aloisa’s husband’s old underwear. He said that Aloisa and Gaetano were not his children, and that their father was a Polish-German man. He made allegations concerning the sexual history of his wife, including that she had been a prostitute and had engaged in acts of incest. On at least one or two occasions, the deceased told Rachel that he had sent Gaetano’s toothbrushes to Melbourne for genetic testing. He made allegations that his neighbour was poisoning his chickens and his plants.
On one visit in mid-2011, the deceased showed Rachel a letter and an invoice, which he claimed related to a private investigator he had hired to locate his former neighbour, who had apparently relocated. The deceased maintained that his former neighbour was returning to poison his plants. He said that he would go to bed at 8.00 pm every night, but would awaken four times every night to check on his plants. The deceased noticed that some roses in Rachel’s garden had discoloured leaves and alleged that his former neighbour must have been poisoning them. After it was pointed out that a neighbouring garden also had a plant with discoloured leaves, the deceased insisted that his former neighbour must have also been poisoning that garden.
Gaetano Castiglione deposed that the deceased was a violent and controlling man, and that he became more violent over time. He described several specific incidents of violence inflicted by the deceased against his wife. For as long as Gaetano could remember, the deceased had accused his wife of having affairs. When Gaetano was 15 or 16 years of age, the deceased started making accusations that he was not the deceased’s biological son. When Gaetano was 16, the deceased cut off some of his hair and told him that it was going to be tested for DNA to prove that Gaetano was not his biological son. Gaetano recalled that on three separate occasions between 1976 and 1980, the deceased made him brush his teeth without toothpaste and then kept the toothbrush. On each occasion, the deceased wrapped the toothbrush in cling wrap and told Gaetano that he was going to have the toothbrush tested for DNA. This occurred again in 2000.
Gaetano also deposed of the deceased’s fixation on his neighbour, who he believed to be poisoning his garden. Gaetano said that the deceased persisted with the notion that his then former neighbour was still poisoning his plants up to one week prior to his death.
Mira Knezevic, an acquaintance of the deceased’s family, deposed that the deceased and his wife had lived in her father’s home between 1953 and 1957. She had maintained contact with the deceased’s family since that time. She recalled that the deceased was a violent man and said that she witnessed him beating his wife and children. She said that the deceased made allegations that his wife had been unfaithful to him with Ms Knezevic’s father, and claimed that his neighbour was poisoning his plants.
A report was provided by Jane Hecker, a consultant physician specialising in memory disorders. Dr Hecker was provided with the affidavits and other documents filed in support of the application and was asked to report on the deceased’s likely testamentary capacity in 2001. Dr Hecker reported that the information provided in the affidavits supports a change in the deceased’s mental state in the mid to late 1990s, with evidence of increasing paranoia and increasing bouts of anger and rage associated with verbal abuse of his wife and children. Dr Hecker noted that there were several prominent delusions which became increasingly entrenched through this period, particularly those relating to the deceased’s wife’s alleged infidelity and the actions of his neighbour. These delusions led to significant actions on the deceased’s part, including an attempt to have his soil tested for poison, the hiring of a private investigator and attempts to obtain a lie detector test for his wife and DNA evidence that his children were not biologically his offspring.
Dr Hecker reported that there was a suggestion of elements of grandiosity in the affidavits, including the deceased’s comments about the superiority of the Italian race, his boasting about his sexual prowess, and his constant discussion of his wife’s reputed affairs. The medical information that had been provided to Dr Hecker did little to assist. Dr Hecker noted that the deceased had been referred to a psychologist in July 2002, who had reported that the deceased “appears to be psychologically intact, with a stable work history and family life. There is nothing in his background to suggest any previous psychological disturbance.” A reference is made in the deceased’s medical notes in February 2010 to “possible paranoia–alleges person out to poison plants”.
Dr Hecker opined that there was no significant medical evidence to support a diagnosis of either a dementing illness or a psychiatric illness, but noted that there was a dearth of medical information prior to 2012. There was no cognitive assessment of the deceased, although the clinical impression was that he was capable of understanding information, making decisions and signing a consent form alone. Dr Hecker noted, however, that the affidavit evidence indicated significant background personality dysfunction with the development of prominent and persisting delusional symptoms from the mid-1990s. These delusions resulted in significant changes in his behaviour and activities and persisted despite no supporting evidence and, in fact, evidence to the contrary. In Dr Hecker’s opinion:
… This is highly suggestive of an organic medical illness. Possibilities include sub cortical vascular cognitive impairment affecting the sub cortical connections to [the] frontal lobes of the brain. A specific lacunar infarct (as an alternative to more extensive subcortical vascular pathology) in the R frontal region, subcortical connections or thalamus could also explain this presentation. A small lesion in a critical area could result in these changes without other focal motor symptoms to make detection of a stroke more obvious. These options would explain most of his symptoms (including the psychotic features, increased irritability, depressive symptoms, lability of mood and behaviour change) however in the usual case one would have expected greater levels of memory impairment and progression of cognitive impairment over time (at least in the extensive small vessel pathology although not necessarily in the single lacunae) which is not really borne out by the information available. Unfortunately there was no formal testing of frontal and executive brain function, not any aspect of brain cognitive function. There was also no brain scan to assist with these possibilities. There is limited record of vascular risk factors although his smoking history is well documented. He appeared to keep these problems sufficiently controlled in medical settings to avoid detection or comment. This would also be a little unusual for vascular pathology particularly over this prolonged period Also quite consistent with the presentation and history is a primary frontal dementia which would explain the lack of other cognitive impairments and the prominent change in behaviour, mood and higher executive function. Once again there is no medical, frontal cognitive assessment or brain imaging which might support this. This disease can be very easily missed by treating medical personnel which fits the clinical picture quite well. It is however much less common than vascular causes for frontal cognitive impairment.
Dr Hecker went on to consider other potential causes, including space occupying lesion in the frontal lobes and excess alcohol consumption. Dr Hecker concluded:
… Overall I do believe he had a background personality disorder with a superadded organic illness, either medical or psychiatric developing in the mid-1990s and persisting subsequently.
In relation to the issue of the deceased’s testamentary capacity at the time of the making of his will, Dr Hecker concluded:
… There appears from the information provided by his daughter, Adriana, to have been a significant shift in his estate distribution between 1993 and 2001. It was over this time that the increasingly prominent delusional thinking was evident. It is also critical that these delusions directly related to his potential beneficiaries and therefore have high significance in relation to their impact on his capacity to make reasoned judgments about the distribution of his estate. From this point alone I believe it is more likely than not that Mr Castiglione lacked testamentary capacity in September 2001 when he provided instructions and signed the Will in question. The information available would suggest that he did have the cognitive capacity to understand the meaning of a Will, understand the nature and extent of his assets and understand those individuals who would be potential beneficiaries. I believe his psychiatric state with prominent, persisting and unresolved delusional thinking, directly related to his children, who would be his expected beneficiaries, was sufficient to negate his ability to reason and objectively weigh up the relative weight of differing options for testamentary distribution. Although there is limited medical or legal evidence for his psychiatric state at the time, there is consistent agreement amongst family members, in-laws, family friend and neighbour to support his delusional state. Most, although not all of these individuals potentially stand to gain from a finding of incapacity and therefore the weight given to this evidence is a matter for the court. In my opinion however the information provided by these individuals is strongly consistent and it is also consistent with the reported changes in his decision making between 1993 and 2001.
In relation to your specific questions:
1. I believe it is likely that on 28th of September 2001 Mr Castiglione suffered from significant delusions in relation to both the paternity of his children and the conduct of his neighbour, Mr Steel.
2.I believe it is likely that on 28 September 2001 Mr Castiglione suffered an undiagnosed mental condition. The exact nature of this is not easy to define with the lack of medical information available however the possible options are discussed above in my opinion. The change from the mid-1990s could be explained by either an organic medical problem, some form of progressive neurodegenerative frontal lobe dysfunction or alternatively a primary psychiatric condition, either a late life schizophreniform illness or a mood disorder associated with psychosis. I believe he had a background personality disorder in addition.
3.As discussed in my opinion above I have clarified which aspects of testamentary capacity I believe were impacted by his delusional illness.
[Emphasis added.]
Legal Principles

The circumstances in which a Court may pronounce against the validity of a testamentary instrument have been considered on several occasions.
In Re Muirhead,[1] an executrix sought to propound a will made in 1951. There was also a codicil made in 1967. The executrix did not seek to propound the codicil and no one appeared to do so. At the hearing, she led no evidence to show that the codicil was invalid. Cairns J stated:[2]
… it is the duty of a court of probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents. Sometimes it is impossible to discover the true intention of the testator because there may be doubts about his testamentary capacity or about whether he knew and understood the contents of some document propounded, or there may be doubts about the formalities of execution. In such cases a compromise is often reached and given effect to by the court. Where certainty cannot be achieved, it is often better that a will which is prima facie valid should be admitted to probate than that there should be a prolonged investigation into allegations of incapacity or undue influence; and it is sometimes better that a will or codicil should be pronounced against where are there are good reasons for suspecting its validity, although by a full inquiry it might be possible to remove those suspicions. It is proper that in either of these cases, terms should be agreed (and if all parties are not sui juris, approved by the court) to take account of the doubts which remain.
It is a different matter when the court is invited to pass over a document which is apparently a valid testamentary document, as to which there is no evidence of invalidity….
[Emphasis added.]
[1] Re Muirhead [1971] 1 ALL ER 609.
[2] Re Muirhead [1971] 1 ALL ER 609, 611.
In Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, the authors cite the decision of Cairns J in Re Muirhead,[3] and state:[4]
Where the court is asked to pronounce against what purports to be the last will of the deceased, evidence must be produced to show lack of due execution, incapacity or whatever ground is alleged for the invalidity of the will. It is the duty of the probate court to give effect if it can to the wishes of the testator as expressed in testamentary documents and it should not, therefore, pronounce against what it knows to be the last will in date without making an inquiry as to its validity. Except under section 49 of the Administration of Justice Act 1985 the court cannot pronounce against a will by consent, and therefore a fortiori cannot pronounce against a will in a case of default without sufficient evidence. Although it has been suggested that where there is a genuine belief in the invalidity of later will and the action has become undefended the court may pronounce against a will in solemn form without further evidence, this suggestion, based on an extension of principle in Morton v Thorpe (1863) 3 Sw & Tr 179 is, it is submitted, wrong.
[Footnotes omitted. Emphasis added.]
[3] Re Muirhead [1971] 1 ALL ER 609.
[4] Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (Sweet & Maxwell, 19^th ed, 2008), [39-08].
In In the Estate of Edwards,[5] probate of a will made in 1970 had been granted in common form. Subsequent civil jurisdiction proceedings were commenced seeking revocation of the grant, pronouncement against the validity of the 1970 will and pronouncement for an earlier will made in 1958 in solemn form. The basis for pronouncing against the 1970 will was not stated except:[6]
… [It] being sufficient to say that were those allegations to be sustained by proof, then grounds for pronouncing against the later will would be made out and with those grounds established the revocation of the probate of that will would follow.
The parties reached a settlement and sought consent orders. Sangster J made the order for revocation without hearing evidence and by consent. His Honour observed:[7]
On the whole I am of the opinion it is at least arguable that no cause need be shown in proceedings seeking revocation of a grant if all parties who could possibly be interested consent to that revocation, but I need not go so far as that and therefore I expressly refrain from deciding that question. It is sufficient for me to say that in my opinion even if a grant of probate may not be revoked without cause then nevertheless a grant may be revoked for cause which is alleged in the proceedings before the court and which allegations, if made out, would support the revocation, and where there is no suggestion that that allegation is other than bona fide; and that the court may do so without hearing any evidence in support of the alleged cause for revocation if all parties possibly interested in the outcome of the proceedings consent to the order.
I am therefore prepared to make an order by consent in this case for the revocation of the probate referred to in the proceedings and upon the making of that order (or in anticipation of it) I would be able to hear evidence upon the propounding in solemn form of an earlier will.
[5]    In the Estate of Edwards (1981) 28 SASR 380.
[6]    In the Estate of Edwards (1981) 28 SASR 380, 381.
[7]    In the Estate of Edwards (1981) 28 SASR 380, 384.
In Executor Trustee Australia Ltd v Henderson, [8] probate of a will made in 1993 had been granted in common form. Again, subsequent civil jurisdiction proceedings were commenced seeking revocation of the grant, pronouncement against the validity of the 1993 will and pronouncement for an earlier will, made in 1992, in solemn form. Allegations of a want of testamentary capacity were made against the later will. The parties compromised their dispute and sought orders for those matters. Perry J quoted the above extracted passage from In the Estate of Edwards[9] and held:[10]
In this case, there is “cause … alleged in the proceedings before the court” in the form of allegations which, if made out, would support the revocation.
Not without some hesitation, I was in the circumstances prepared to follow the approach adopted by Sangster J in that case.
[8] Executor Trustee Australia Ltd v Henderson (2006) 244 LSJS 43.
[9] In the Estate of Edwards (1981) 28 SASR 380.
[10] Executor Trustee Australia Ltd v Henderson [2006] SASC 82, [28]-[29].
In Re Grey Smith (deceased),[11] the plaintiffs sought probate in solemn form of a will made in 1964 and a codicil made in 1967, or, alternatively, a later will made in 1974. The plaintiffs were the executors of each document. Notice was given to all interested parties under all instruments but none appeared in relation to the claim. The next of kin consented to probate being granted of the earlier will and codicil. The plaintiffs formally proved the due execution of the earlier will and codicil. The 1974 Will was not formally proven. Instead, evidence was led about the deceased’s nature and behaviour at the purported date of the execution of the 1974 will. Murphy J of the Victorian Supreme Court stated:[12]
There is no evidence of the precise circumstances which gave rise to [the 1974 document’s] execution, but such evidence as is forthcoming would suggest that in executing the document the deceased may not have been expressing the true will of a free and capable person.
[11] Re Grey Smith(deceased) [1978] VR 596.
[12] Re Grey Smith(deceased) [1978] VR 596, 605.
After considering Re Muirhead,[13] Murphy J then considered In the Will of Pearce.[14] In that case, the plaintiffs sought probate of a will made in 1927 and a codicil made in 1939. There was a latter document made in 1943, under which an infant benefited. The infant appeared by counsel at the hearing. As such, the action was not a consent or undefended judgment. Nicholson CJ in Eq stated:[15]
It appears to me that I am entitled to ignore the existence of the later document if, and only if, I am fully satisfied of the incompetence of the testator and if none of the persons interested desires to propound the later document.
… the question is whether the evidence of incapacity is conclusive and overwhelming.
[Emphasis added.]
In respect of this case, Murphy J in Re Grey Smith (deceased) stated:[16]
… Nicholas, C.J. in Equity cannot, I think, have meant to say that it is only where the Court is "fully satisfied of the incompetence of the testator and if none of the persons interested desires to propound the later document" that probate of an earlier document alone will be granted. If the Court is "fully satisfied" of the incompetence of the testator at the time that the later document was executed, it would not seem to me to matter whether anyone wished to propound the later document or not. Indeed, if the onus of proving that the later document was the true will of a free and capable testatrix rests on the person wishing to propound it, then it ought to be sufficient for the applicants for probate of an earlier will alone to establish circumstances giving rise to a well founded suspicion as to whether this is so, and then on proof that notices have been given to all interested parties and if no one comes forward to propound the later document, the Court should in my opinion be in a position to ignore it.
Murphy J noted that the onus of proving the validity of the later document is on those who set it up as a will. As no one came forward to propound the later document, and his Honour was satisfied that there was a well-founded suspicion as to the validity of the document, the Court pronounced against it.
[13] Re Muirhead [1971] P 263.
[14] In the Will of Pearce (1945) 46 SR (NSW) 71.
[15] In the Will of Pearce (1945) 46 SR (NSW) 71.
[16] Re Grey Smith [1978] VR 596, 604.
In Boreham v Prince Henry Hospital, Williams, Fullagar and Kitto JJ observed:[17]
The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given. ...
[17] Boreham v Prince Henry Hospital (1955) 29 ALJ 179, 180.
Re Grey Smith[18] has been recently applied by this Court. In Lewis v Gersace,[19] the plaintiff in civil jurisdiction proceedings sought orders pronouncing against a will made in 2005 and pronouncing for a will made in 2000. A counterclaim sought to pronounce for the 2005 will. The action resolved at mediation and the parties sought consent orders in terms of the plaintiff’s claims, with the dismissal of the counterclaim. Evidence relating to the lack of capacity, including expert medical evidence, was tendered. Peek J stated:[20]
It is clear that the court may not grant probate in solemn form of a penultimate Will simply by reason of the consent of the parties or the consent of the interested persons. However, in the present case, I find that the propounder of the earlier Will, that is to say the 2000 Will, does establish circumstances which give rise to a well-founded suspicion that the subsequent 2005 document does not represent the true Will of a capable testator. …
Later in his reasons, his Honour stated:[21]
Strictly speaking, the required degree of cogency of such evidence has been described as needing to give rise to a 'well found suspicion' that the later document does not express the true will of a free and capable testator. However, in the present case I find that the cogency of the evidence before me in affidavit material which is uncontested, is well above that required threshold level. …
[18] Re Grey Smith [1978] VR 596.
[19] Lewis v Gersace (Unreported, Supreme Court of South Australia, Peek J, 11 March 2014).
[20] Lewis v Gersace (Unreported, Supreme Court of South Australia, Peek J, 11 March 2014).
[21] Lewis v Gersace (Unreported, Supreme Court of South Australia, Peek J, 11 March 2014).
In Re Levy (No 2), Sholl J considered the role of the court in making enquiries in respect of testamentary matters:[22]
Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought. There is no provision analogous to s80 of the Marriage Act 1928, which in matrimonial suits does put upon the Court a duty to satisfy itself as to the circumstances in which relief is sought. That section has been held to entitle the Court to call evidence of its own motion; and I may refer to a recent decision of my own in Shepherd v Shepherd, [1954] VLR 514, as indicating the view which the Court takes of the extent of that duty. As I say, no duty of that sort, in my opinion, attaches to the Court in probate proceedings, nor do I think cases like Coles v Coles (1866) LR 1 P & D 70, indicate the contrary. Coles v Coles, and similar cases do indicate that the Courts have allowed the propounder of a will to discredit attesting witnesses who have proved in the witness box adverse to the will, and it has been said that that is done because the witnesses are in a sense the witnesses of the Court itself. Whatever may be meant by that expression, the cases do not, I think, indicate that the Court in considering an application for probate of a will is conducting some independent inquiry which may put upon it the duty of going into evidence which the parties to the suit have not brought before it.
[22] Re Levy(No 2) [1957] VLR 662, 665.
In summary, the authorities give rise to the following principles regarding contentious probate actions where orders are sought by consent, in default or by reason of being undefended. The Court does not have a duty to conduct any independent investigation in relation to the validity of the will. However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.
Testamentary Capacity and Delusion
In Banks v Goodfellow, Cockburn CJ, delivering the judgment of the Court, said:[23]
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.
[Emphasis added.]
[23] Banks v Goodfellow (1869-70) LR 5 QB 549, 565.
In Timbury v Coffee, Dixon J addressed the question of testamentary capacity as follows:[24]
I think, however, that the jury's finding in relation to the will of 22nd October 1938 should be upheld upon the simple ground that the jury was right in not being reasonably satisfied, upon the proofs offered, that at the time when the testator made the will he was of testamentary capacity. “Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner (per Hood J, In the Will of Wilson). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it”…
[24] Timbury v Coffee (1941) 66 CLR 277, 283.
In the decision of the New South Wales Supreme Court in Re Estate of Griffith; Easter v Griffith, Santow J considered the effect of a delusion on testamentary capacity:[25]
… It is necessary for the delusion to affect some at least of the dispositions of the will; to describe it as insane is no longer necessary. However, the mere fact that certain dispositions of the will are apparently irrational or inofficious is not of itself sufficient to vitiate testamentary capacity though a relevant evidential fact, along with the whole circumstances of the will and testator, as well as relevant to whether the onus shifts back to the propounder of the will … What is required is absence of capacity, not merely its prejudiced exercise, so preserving freedom of testation. Thus whilst the presence of a medical label which reliably identifies a particular mental condition as a disorder of the mind or as insanity may be the clearest intermediate step to a conclusion that testamentary capacity is lacking, if the will's dispositions are thereby affected, it is not a necessary one. Thus, in Bull v Fulton (supra) at 339 Williams J said:
"No specialist in mental diseases was called, but the Court can rely on its practical knowledge derived from its own experience;"
Thus absence of the psychiatric or medical label is not of itself sufficient to lead to the conclusion that there can be no delusion of the requisite kind. Nor is it any longer necessary to find a disorder of the mind in any clinical sense. The delusion must be tested by objective evidence as to it being fixed, false and incorrigible such that the testator could not be reasoned out of it. Such delusions or disorders of the mind thus go beyond mere eccentricity, or vindictiveness or irrationality, though these may be evidence pointing with other material, to lack of testamentary capacity.
[25] Re Estate of Griffith; Easter v Griffith (Unreported, Supreme Court of New South Wales, Santow J, 17 June 1994).
In Murphy v Lorenzi, Bryson J reviewed the authorities and concluded:[26]
In my view these decisions make clear (as indeed ought earlier to have been clear) that it is not essential that a question of testamentary capacity be addressed in terms in which the relevant debate is whether there were delusions and whether they were insane, or in any terms which involve necessarily identifying a disorder of the mind in terms of current medical science. What is required of a tribunal of fact which applies a rule of law in which current medical science is not incorporated is a verdict on the evidence overall on whether the testatrix was of sound mind, memory and understanding, to establish that the testatrix understood the nature of testation and its effect (as in this case it is clear that she did), that she understood the extent of the property of which she was disposing and that she comprehended and appreciated the claims to which she ought to give effect. Those propounding the will (in this case the last two wills, with the revocation by the April 1992 will of the 1978 will) bear the onus of proof. The authorities bring out the need to advert to the fact that antipathy, even harsh and unreasonable, is not necessarily an indication of inability to comprehend and appreciate their claims of the person against whom antipathy is directed.
[26] Murphy v Lorenzi (Unreported, Supreme Court of New South Wales, Bryson J, 21 October 1996) 40-41.
Discussion

The deceased’s will, on its face, appears to be properly executed. However, having reviewed the lengthy affidavit evidence and, in particular, the report of Dr Hecker, I am satisfied that circumstances exist to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the will in 2001.
The affidavit evidence establishes that, from about the mid-1970s, the deceased began expressing the view that his wife was having affairs, and that Gaetano and Aloisa could not be his children. There were occasions where this behaviour manifested itself in actions, such as obtaining Gaetano’s toothbrushes for DNA testing. In the main, however, the deceased’s behaviour constituted mere statements or verbal abuse of his family. By 1998, however, the deceased’s behaviour had changed. His statements relating to the paternity of his children also began to be matched by his actions in seeking to have his wife undergo a lie detector test and seeking another toothbrush from Gaetano. In addition to continuing to make the comments, the deceased began exhibiting signs of other behavioural changes such as irritability, depressive symptoms and lability of mood. In addition, the deceased began exhibiting extreme behaviour towards his neighbour.
This evidence raises a suspicion that the deceased suffered from delusions at the time that he made the alleged will, and that these delusions influenced his testamentary intentions.
No party has come forward to tender any evidence or make any submission that the deceased did in fact have capacity at the relevant time. In these circumstances, I considered it appropriate to make an order pronouncing against the validity of the will.
Approval of the Settlement
As earlier noted, the settlement agreement provides for $85,000.00 to be paid to Rebecca Spoehr, the granddaughter of the deceased. The plaintiff has sought court approval of this settlement in accordance with rule 257(1) of the Civil Rules, which provides:
A settlement of proceedings for the benefit of, or against the interests of, a person under a disability, or of a claim that might have formed the basis of such proceedings, is not binding on the person under a disability unless the Court approves the terms of the settlement.
The plaintiff obtained an independent opinion regarding the proposed compromise from Patrick Amey of counsel. Mr Amey noted in his opinion that Rebecca lacks testamentary capacity due to an acquired brain injury that she suffered as a result of a motor vehicle accident in 2003. She had other ongoing medical conditions relating to the accident, including residual paralysis in her left arm and leg, and nerve damage to her left eye such that it no longer closes. Rebecca lives with her partner and receives a Disability Support Pension of $920.00 per fortnight. Mr Amey noted that Rebecca had about $59,000.00 in assets.
Mr Amey reported that Rebecca is considered to have improved continually to the point where she is no longer required to take medication or consult a psychiatrist. Rebecca’s parents were subsidising her living expenses. Mr Amey noted that Rebecca is not subjected to excesses in spending and adopts a responsible attitude to her financial affairs. Mr Amey concluded that the amount of $85,000.00 set aside for Rebecca is not only a suitable and appropriate compromise, but is also reasonable and should be accepted. He said that Rebecca requires such a sum to survive financially and as a buffer against any other unusual expenses that she may need to incur. He suggested that the prospect of her proceeding independently and obtaining a greater sum by means of a family provision application is not sufficient to outweigh the significant risk in doing so.
I am satisfied that Rebecca’s interests are adequately protected by the terms of the agreed settlement.
These are my reasons for making the earlier referred to orders.