The Public Trustee v Nezmeskal

[2018] WASC 394

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   THE PUBLIC TRUSTEE -v- NEZMESKAL [2018] WASC 394

CORAM:   PRITCHARD J

HEARD:   13 NOVEMBER 2017

DELIVERED          :   14 DECEMBER 2018

FILE NO/S:   CIV 2626 of 2014

BETWEEN:   THE PUBLIC TRUSTEE

Plaintiff

AND

MARIJANA NEZMESKAL

First Defendant

ANTONIJA KLARIC

Second Defendant

MILKO KNEZEVIC

Third Defendant

RUDOLF MORI

Fourth Defendant

Catchwords:

Wills and estates - Grant of probate in solemn form - Testamentary capacity - Effect of delusionary disorder - Whether presumption of duly executed will displaced

Legislation:

Wills Act 1970 (WA)

Result:

Grant of probate in solemn form in respect of the 1976 Will

Category:    B

Representation:

Counsel:

Plaintiff	:	Ms W Gillan
First Defendant	:	Mr R J Nash
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Mr M Curwood

Solicitors:

Plaintiff	:	The Public Trustee
First Defendant	:	GG Legal
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Frichot & Frichot

Case(s) referred to in decision(s):

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bull v Fulton (1942) 66 CLR 295

Burnside v Mulgrew [2007] NSWSC 550

Collins by her next friend Poletti v May [2000] WASC 29

Frizzo v Frizzo [2011] QCA 308

Frizzo v Frizzo [2011] QSC 107

Kerr v Badran [2004] NSWSC 735

Lock v Phillips [2014] WASC 92

Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17

Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284

Re Groffman (deceased) [1969] 1 WLR 733

Timbury v Coffee (1941) 66 CLR 277

West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144

Worth v Clasohm (1952) 86 CLR 439

PRITCHARD J:

1. Mrs Neda Bilich died on 6 March 2007 at the age of 90 years.  Her husband, Ljubomir Bilich, to whom she had been married for 53 years, predeceased her by several weeks.[1]  Their only son had died in 1958 as a young child, and Mrs Bilich had no other children. 

   [1] Exhibit 1.14.

2. Mrs Bilich made a will dated 9 November 1976 (1976 Will).  In the 1976 Will, Mrs Bilich appointed the Public Trustee as the executor and trustee of her will, and after the payment of debts, left the whole of her estate to her sisters, Slavka (Vida) Lukovic and Anka Mori, in equal shares, but if they predeceased her their share would pass to those of their children who survived Mrs Bilich.  Both Ms Lukovic and Mrs Mori predeceased Mrs Bilich.  Ms Lukovic left no children.  Mrs Mori had three children who survived Mrs Bilich.  They are the First, Second and Fourth Defendants.

3. Mrs Bilich made a will dated 19 December 1990 (1990 Will).  In that will, Mrs Bilich appointed Ms Millie Srhoy as executor, and left the whole of her estate to the Fourth Defendant.  In August 2007, Ms Srhoy authorised the Public Trustee to obtain probate of the 1990 Will. 

4. The Public Trustee has brought these proceedings because a question has arisen as to whether Mrs Bilich had testamentary capacity to make the 1990 Will, and thus as to whether the 1990 Will was validly made. 

5. The Public Trustee claims that the 1990 Will is invalid because Mrs Bilich did not have testamentary capacity when she executed that will.  The Public Trustee instead claims that the 1976 Will is valid, and that there should be a grant of probate in solemn form to the Public Trustee in respect of that will.  The First Defendant supports that grant of probate. 

6. The Fourth Defendant contends that the 1990 Will is valid, and that there should be a grant of probate in solemn form to him or to the Public Trustee in respect of that Will.  Counsel for the Fourth Defendant submits, however, that if the 1990 Will was not validly made, the 1976 Will was validly made and there should be a grant of probate in respect of that will.[2]

   [2] Fourth Defendant's submissions [15].

7. The First Defendant says that if both the 1976 Will, and the 1990 Will, are invalid for want of testamentary capacity, then Mrs Bilich will have died intestate (there being no evidence of any earlier will) and in those circumstances, there should be a grant of letters of administration to the Public Trustee. 

8. In the event that Mrs Bilich died intestate, there is no dispute that all of the Defendants, who are her only surviving nieces and nephews, would be the beneficiaries of her intestate estate, pursuant to s 14 of the Administration Act 1903 (WA).

9. The Second and Third Defendants have not participated in these proceedings.

10. For the reasons which follow, the presumption as to the validity of a properly executed will has been displaced in respect of the 1990 Will.  The Fourth Defendant – who propounds the validity of that Will ‑ has not discharged the burden on him of establishing that Mrs Bilich had testamentary capacity when she made the 1990 Will.  Consequently, the 1990 Will is invalid for want of testamentary capacity. 

11. The 1976 Will was properly executed, and there was no evidence to displace the presumption that Mrs Bilich had testamentary capacity when she made the 1976 Will.  Consequently, I will make orders for the grant of probate in solemn form in respect of the 1976 Will.

12. In these reasons, I deal with the following matters:

    (1)The history of the proceedings;

    (2)The applicable principles concerning the requirement for, and proof of, testamentary capacity on the part of a testator;

    (3)Factual findings as to the circumstances in which Mrs Bilich made the 1990 Will;

    (4)Why the Fourth Defendant has not established that Mrs Bilich had testamentary capacity when she made the 1990 Will;

    (5)Why probate should be granted in respect of the 1976 Will.

1. The history of the proceedings

1. In about August 2007, Ms Millie Shroy, who was the executor of the 1990 Will, authorised the Public Trustee to apply for an order that the Public Trustee administer Mrs Bilich's estate. 

2. It appears that that application was made, and granted, in 2008.  The Public Trustee initially sought probate in respect of the 1990 Will.  A number of requisitions were issued by the Probate Registrars in relation to that application for probate.  As a result of responding to those requisitions, further information came to the attention of the Public Trustee, including the existence of the 1976 Will, and the fact that Mrs Bilich was in Royal Perth Hospital (RPH) at the time she made the 1990 Will, and that observations made by medical staff in the RPH records (hospital records) raised a question about Mrs Bilich's testamentary capacity at the time she made the 1990 Will. 

3. As a result of that further information, in 2012, the Public Trustee applied to the Court for, and was granted, additional powers to those he had been granted to administer Mrs Bilich's estate, including the power to engage counsel to provide an opinion as to whether the Public Trustee should commence proceedings for proof in solemn form of the 1990 Will, the 1976 Will, or for the grant of representation based on Mrs Bilich's intestacy.[3] 

   [3] Exhibit 1.8 Annexure SWC8.

4. After those steps were taken, the present action was commenced. 

The action

1. The Public Trustee seeks that the Court pronounce the force and validity in solemn form of the 1976 Will, and that the Probate Registry issue a grant of probate of the 1976 Will to the Public Trustee. 

2. In his Amended Statement of Claim (ASOC), the Public Trustee claims that although Mrs Bilich made a later will, namely the 1990 Will, it was not valid for want of testamentary capacity.  The particulars for that claim are that Mrs Bilich 'displayed symptoms of acute agitation and paranoid schizophrenia or paranoia for several years prior to, including and following the date of her admission to [RPH] on 18 December 1990…, including, on a sustained basis, accusing her husband of trying to poison her and having a girlfriend'; that following her admission to RPH she experienced 'an acute episode of psychosis', and 'suffered post operative psychosis following surgery', and that on 27 December 1990 she was transferred to Shenton Park Rehabilitation and was 'noted to be suffering from paraphrenia [and was] not orientated as to day, date, month or year'.[4]

   [4] ASOC [8].

3. The Public Trustee also pleads that Mrs Bilich left no spouse, de facto partner, or issue, that Mrs Bilich's seven siblings predeceased her, and that the only surviving children of Mrs Bilich's siblings are the First, Second and Fourth Defendants (the children of Mrs  Mori), and the Third Defendant (the child of Milka Lukovic).[5] 

   [5] ASOC [12].

4. The Public Trustee pleads that if neither the 1976 Will nor the 1990 Will obtain a grant of probate, then Mrs Bilich will have died intestate, in which case each of the First to Fourth Defendants would be entitled to a share in the intestate estate.[6]

   [6] ASOC [13].

5. The Fourth Defendant filed a defence and counterclaim, which was subsequently amended (ADCC).  He admits much of the ASOC.  However, he denies that the 1990 Will was not validly made for want of testamentary capacity.[7]  He says that the 1990 Will was duly executed, that Mrs Bilich was an in-patient at RPH at the time she executed the 1990 Will, that she underwent surgery after doing so, and suffered a post-operative psychosis for which she was prescribed Haloperidol, and that she did not exhibit any signs or symptoms of any psychosis or mental disorder prior to that surgery.[8] 

   [7] ADCC [3].

   [8] ADCC [4].

6. The Fourth Defendant denies that an order should be made for the grant of probate of the 1976 Will.[9]  In his counterclaim, the Fourth Defendant pleads that at the time of executing the 1990 Will, Mrs Bilich was of sound mind, memory and understanding.  The Fourth Defendant seeks an order pronouncing the force and validity in solemn form of the 1990 Will and an order directing the Probate Registrar to settle a grant of probate to the Fourth Defendant, or alternatively to the Public Trustee. 

   [9] ADCC [7].

7. The First Defendant admits each of the allegations in the ASOC and the prayer for relief.  As to the ADCC, the First Defendant does not admit the allegations in the ADCC that Mrs Bilich duly executed the 1990 Will and that she did not exhibit any signs or symptoms of any psychosis or mental disorder prior to surgery on 20 December 1990, and denies that Mrs Bilich had testamentary capacity to make the 1990 Will. 

8. As I have said, neither the Second nor Third Defendants participated in the action.  They were not represented at the trial.

The trial

1. The key factual issue requiring resolution at the trial is whether Mrs Bilich had testamentary capacity when she executed the 1990 Will. 

2. None of the parties identified any witnesses who knew Mrs Bilich and who might be in a position to give evidence as to her testamentary capacity.  Despite efforts to locate the witnesses to the 1990 Will, they were not able to be located.  Mrs Bilich's treating doctors in 1990 were deceased or unable to be located.[10] 

   [10] Exhibit 1.6 [4].

3. The First to Fourth Defendants all live overseas.  There was nothing to suggest that any of them were in a position to give evidence relevant to Mrs Bilich's testamentary capacity at the time she made either will. 

4. Consequently, the trial was largely conducted on the basis of documentary evidence.  The Public Trustee had obtained a copy of the hospital notes which were made at the time of Mrs Bilich's admission to RPH on 18 December 1990 for surgery to repair a broken hip which she had sustained in a fall.  The hospital notes were admitted into evidence in their entirety.[11]  (Other medical records pertaining to Mrs Bilich, including from earlier admissions at RPH, were not able to be located, which was hardly surprising given the time which has elapsed.) 

   [11] Exhibit 1.1 and Exhibit 1.2.  Some of the key passages of the handwritten hospital notes had been transcribed into typed format, which were provided to the Court as an aid to reading the hospital notes.

5. The only witness who gave evidence was Dr Zlatan Golic, who is a psychiatrist.  At the request of the Fourth Defendant,[12] Dr Golic provided a written report, which was tendered in evidence,[13] and Dr Golic was also cross examined by the parties' counsel. His evidence was of assistance in explaining the terminology used in the hospital notes, and in explaining the symptoms of some psychiatric disorders referred to in those notes.

   [12] Exhibit 3.

   [13] Exhibit 1.3.

6. Apart from the hospital notes, the other documentary evidence comprised affidavits which had been prepared for the purposes of the earlier applications to which I referred at [14] ‑ [15].  Those documents comprised:

   •Affidavit of Mr John Wilmot sworn 27 January 2009.[14] That affidavit was sworn in support of an application by the Public Trustee, pursuant to s 12(2) of the Public Trustee Act 1941 (WA) to administer Mrs Bilich's estate. Mr Wilmot's affidavit annexed the 1990 Will, a copy of Mrs Bilich's death certificate, and an authority of Ms Millie Srhoy who was appointed the executrix of the 1990 Will, and who had requested the Public Trustee to make the application for the Public Trustee's appointment to administer Mrs Bilich's estate. In his affidavit, Mr Wilmot deposed that he had been unable to locate the witnesses to the 1990 Will.

   •Affidavit of Dr Kingsley Shung Lai Wong sworn 15 December 2008.[15]  Dr Wong was a doctor at RPH.  He reviewed the hospital notes at the request of the Public Trustee.  Dr Wong made some observations about the references in those notes to Mrs Bilich's mental health and treatment.  Dr Wong did not attend the hearing to give evidence.  The content of Dr Wong's affidavit was broadly consistent with the report prepared by Dr Golic, but I have relied on Dr Golic's report, and on the evidence he gave at the trial in cross‑examination which provided a more fulsome explanation of the psychiatric disorders referred to in the hospital notes.

   •Affidavit of Mr John Wilmot sworn 23 April 2009.[16]  This affidavit corrected and clarified some of the contents of Mr Wilmot's earlier affidavit.

   •Affidavit of Ms Dinah Craven sworn 26 November 2009.[17]  That affidavit was sworn in support of an application by the Public Trustee for the grant of probate in respect of the 1990 Will.  The affidavit annexed consents given by the Second and Third Defendants to the grant of probate in respect of the 1990 Will.

   • Affidavit of Mr Shaun William Conlin sworn 9 March 2017.[18]  This affidavit was sworn in support of the present action, and sets out the history of the matter.

   •Affidavit of Ms Delia Mary Parker sworn 11 May 2017.[19]  Ms Parker was one of the subscribing witnesses to the 1976 Will.

   • Affidavit of Scripts of Mr Shaun William Conlin sworn 8 April 2016, which annexed the 1976 Will and a copy of the 1990 Will, and a copy of a will preparation instructions form completed in respect of the 1976 Will.[20]

   [14] Exhibit 1.5.

   [15] Exhibit 1.4.

   [16] Exhibit 1.6.

   [17] Exhibit 1.7.

   [18] Exhibit 1.8.

   [19] Exhibit 1.9.

   [20] Exhibit 1.10.

1. The requirement for, and proof of, testamentary capacity on the part of a testator

1. There are two requirements for a valid will. The first is that the will complies with the applicable legislative requirements for its execution, which are set out in s 8 of the Wills Act 1970 (WA). The second is that the court must be satisfied that the testator had sufficient mental capacity to make the will. In other words, the court must be satisfied that the deceased made the will of his or her own volition, without duress and with a fully comprehending mind.[21]

   [21] Lock v Phillips [2014] WASC 92 [32] (EM Heenan J).

2. Proof of these matters will be required even if all opposition to an application for probate is withdrawn or discontinued.  That is because the grant of probate is a judgment of the court binding not only on the parties to the proceedings, but on all persons who had notice of the claim and had a right to intervene.[22]

   [22] Lock v Phillips [2014] WASC 92 [33] (EM Heenan J).

3. The formalities for the execution of a will in Western Australia are set out in s 8 of the Wills Act 1970 (WA). That section provides that a will is not valid unless:

   (a) it is in writing; and

   (b) it is signed by the testator or in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and

   (c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and

   (d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary. 

4. Where a will has, on its face, been regularly executed – and especially if there is an attestation clause signed by the witnesses - there will arise a presumption of due execution of the will.[23]  (That presumption is, of course, rebuttable by compelling evidence that the will was not duly executed, for example if the evidence revealed that the witnesses did not see the testator signing the will.)[24]  Where the presumption arises, then unless there are grounds to question the will's authenticity or the testator's capacity, or any reason to believe that the will was not the product of the testator's free will, then it will not be necessary to call the witnesses to the will to prove that it was executed in accordance with the statutory requirements.  Instead, the court will proceed to grant probate.[25]

The requirement for testamentary capacity

[23] See the discussion and cases cited in Burnside v Mulgrew [2007] NSWSC 550 [18] ‑ [22] (Brereton J).

[24] See, eg, Re Groffman (deceased) [1969] 1 WLR 733, 739 (Sir Jocelyn Simon P).

[25] See the discussion in G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2013) [4.20] and [11.20].

1. The requirement for testamentary capacity means that the testator must be of sound mind, memory and understanding when the will is made.[26]  The general rule is that the testator must possess testamentary capacity at the time he or she executes the will.[27]

   [26] Bailey v Bailey (1924) 34 CLR 558, 559 (Knox CJ and Starke J); Banks v Goodfellow (1870) LR 5 QB 549, 568 (Cockburn CJ).

   [27] Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).

2. The traditional formulation of the test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow,[28] namely:

   It is essential to the exercise of [testamentary] 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; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect.

   [28] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ); see also Lock v Phillips [2014] WASC 92 [32] (EM Heenan J).

3. Cockburn CJ went on to note that the testator should not be compromised by a 'disorder of the mind [which] shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties' or by insane delusions which '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.'[29]  However, mental infirmity of a kind which denies testamentary capacity need not necessarily involve what can be described as 'insane delusions', and it is not necessary to bring the evidence which raises doubt under the rubric of delusions at all.[30]

   [29] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ).

   [30] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 290, 302 (Gleeson CJ, Handley JA agreeing) referring to Harwood v Baker (1840) 3 Moo PC 282, see also 295 (Kirby P).

1. In Read v Carmody,[31] Powell JA elaborated upon what testamentary capacity requires.  His Honour noted that the testator must be aware, and appreciate the significance, in the law, of the act upon which he or she is about to embark, must be aware at least in general terms of the nature, extent and value of the estate over which he or she has a disposing power, must be aware of those who may reasonably be thought of to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons, and must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.[32]  It is not necessary that the testator know precisely the value of his or her individual assets, or even of certain classes of assets, particularly in the case of a large and complex estate.[33] 

   [31] Read v Carmody [1998] NSWCA 182 (Powell JA, Meagher and Stein JJA agreeing); see also Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ); Frizzo v Frizzo [2011] QSC 107 [21] (Applegarth J); and Frizzo v Frizzo [2011] QCA 308 [24] (Muir JA, Margaret McMurdo P and White JA agreeing).

   [32] See also Collins by her next friend Poletti v May [2000] WASC 29 [52] ‑ [62] (Owen J).

   [33] Kerr v Badran [2004] NSWSC 735 [49] (Windeyer J); see also Frizzo v Frizzo [2011] QSC 107 [22] (Applegarth J); and Frizzo v Frizzo [2011] QCA 308 [24] (Muir JA, Margaret McMurdo P and White JA agreeing).

2. In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years, some of whom will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age.  However, these characteristics are not ordinarily sufficient to disentitle the testator of the right to dispose of his or her property by will.[34]   In Banks vGoodfellow, Cockburn CJ was at pains to point out that testamentary capacity does not require perfect mental acuity and memory:[35]

   mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.  … [The testator's] memory may be very imperfect; it may be greatly impaired by age or disease …  and yet his understanding may be sufficiently sound for many of the ordinary transactions of life.  … To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?

   [34] Bailey v Bailey (1924) 34 CLR 558, 560 (Knox CJ and Starke J); Re Estate of Griffith (dec'd);Easter v Griffith(1995) 217 ALR 284, 295 (Kirby P) citing Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 565.

   [35] Banks v Goodfellow (1870) LR 5 QB 549, 566, 568 (Cockburn CJ), quoted with approval in Bailey v Bailey (1924) 34 CLR 558, 566 ‑ 567 (Knox CJ and Starke J); see also Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ), 283 (Dixon J).

3. Partial unsoundness of mind, which does not operate on the relevant capacities of the testator to appreciate the extent of and dispose of the estate, will not necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval.[36]

   [36] Bull v Fulton (1942) 66 CLR 295, 299 (Latham CJ); Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 295 (Kirby P) citing Banks v Goodfellow (1870) LR 5 QB 549, 558 (Cockburn CJ).

4. In judging the will propounded, the court must consider all of the circumstances which are relevant to the testamentary capacity of the testator.  By way of example, these may include the nature of the will itself (regarded from the point of simplicity or complexity, or of its rational or irrational provisions, or of its exclusion or non-exclusion of beneficiaries), whether persons who naturally have a claim upon the testator have been excluded, the mental health of the testator (including factors such as extreme age, sickness and so on), whether there is any evidence of undue influence having been exercised by a beneficiary,[37] evidence of the testator's instructions for the preparation of the will and evidence relating to the testator's general ability in the conduct of his or her affairs.[38]

   [37] Bailey v Bailey (1924) 34 CLR 558, 571 (Isaacs J, Gavan Duffy and Rich JJ agreeing).

   [38] See, for example, Timbury v Coffee (1941) 66 CLR 277, 285 (McTiernan J).

5. There is nothing excessively technical in the considerations of whether the testator has appreciated the extent of the property to be disposed of, realised the various calls for disposition to which consideration should be given, and is able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will.[39]

Proof of testamentary capacity

[39] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 295 - 296 (Kirby P).

1. The power of a testator to freely dispose of his or her assets by a will is an important right.  Consequently, a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding, is a grave matter.[40]

   [40] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 290 (Gleeson CJ, Handley JA agreeing), 294 and 296 (Kirby P); see also Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [216] (EM Heenan J).

2. The onus of proving that the will is a valid will, which is required to the civil standard, lies on the party propounding the will.[41]  The onus on the propounding party will, in the first place, be discharged by establishing a prima facie case.[42]  The propounder of the will may take advantage of the presumption that, in the absence of evidence to the contrary, a will which is properly executed, and which is rational on its face, is that of a person of competent understanding.[43]  Further, the party propounding the will is entitled to put forward only evidence that is in its favour.[44]

   [41] Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J, Gavan Duffy and Rich JJ agreeing); Bull v Fulton (1942) 66 CLR 295, 299 (Latham CJ); Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ); Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 289 (Gleeson CJ, Handley JA agreeing), 294 (Kirby P).

   [42] Bailey v Bailey (1924) 34 CLR 558, 571 (Isaacs J, Gavan Duffy and Rich JJ agreeing).

   [43] Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J); Lock v Phillips [2014] WASC 92 [33] (EM Heenan J); see also Burrows v Burrows (1827) 1 Hagg Ecc 109; 162 ER 524; Re Estate of Hodges (dec'd); Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J).

   [44] Re Levy, (dec'd) (No 2) [1957] VR 662, 664 ‑ 665 (Sholl J).

3. Once the propounder of a will establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, then the evidentiary onus shifts to the person impeaching the will to show that it ought not be admitted to proof.   To displace a prima facie case of capacity, mere proof of serious illness is not sufficient.  There must be clear evidence that the illness of the testator so affected his or her mental faculties as to make them unequal to the task of disposing of his or her property.[45]

   [45] Bailey v Bailey (1924) 34 CLR 558, 571-2 (Isaacs J, Gavan Duffy and Rich JJ agreeing).

4. If there is such evidence as to raise doubt as to the testator's mind, memory and understanding, then it is ultimately for the propounder of the will to establish that the testator was of sound mind at the time of executing the will.[46]  If, following a vigilant examination of the whole of the evidence, the doubt as to capacity is felt to be substantial enough to preclude a belief that the testator was of sound mind, memory and understanding at the relevant time, probate will not be granted.[47]

   [46] Bull v Fulton (1942) 66 CLR 295, 343 (Williams J); Lock v Phillips [2014] WASC 92 [33] (EM Heenan J); West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144; Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).

   [47] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 289 (Gleeson CJ, Handley JA agreeing); Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).

5. The opinion of witnesses as to the testamentary capacity of the testator is usually of little weight on the issue.   The opinions of the attesting witnesses that the testator was competent are not without some weight, but it remains the case that the court must judge the testator's capacity from the facts stated by those witnesses, and not from their opinions.[48]

   [48] Bailey v Bailey (1924) 34 CLR 558, 572 (Isaacs J, Gavan Duffy and Rich JJ agreeing).

Factual findings as to the circumstances in which Mrs Bilich made the 1990 Will

The terms of the 1990 Will

1. The 1990 Will was made on 19 December 1990, while Mrs Bilich was in RPH awaiting urgent surgery for a fracture to her right hip. 

2. The 1990 Will was written on what appears to be a standard will form.[49]  The 1990 Will was witnessed by Mr Michael Harrison and Ms Lucy Annamalay.  Mr Harrison was a registered nurse at RPH, and Ms Annamalay was a welfare worker at the hospital.  Although the circumstances in which the 1990 Will was written were not the subject of any direct evidence, it is more likely than not, having regard to all of the circumstances, that the will form was not completed by Mrs Bilich herself, but rather that it was completed for Mrs Bilich by another person, probably Ms Annamalay.  (That is because Mr Harrison, who was a registered nurse working on the ward where Mrs Bilich had been admitted, is unlikely to have had the time to sit down and write out the will for Mrs Bilich.)

   [49] Exhibit 1.8 page 100.

3. The terms of the 1990 Will are brief.  Mrs Bilich appointed 'Milli Srhoy my relation' to be her executor, and then (after the standard terms on the will form concerning payment of her funeral and testamentary expenses and debts), the terms of the 1990 Will were:[50]

   I Give, devise and bequeath unto

   My nephew Rudi Mori who is in Slovania

   All my property, jewellery which is in Australia. (sic)

   [50] Exhibit 1.8.

4. The 1990 Will contains a standard attestation clause which provided that it was 'signed by the said testator, on the day and year aforesaid in the presence of us present at the same time, who at her request in her presence and in the presence of each other have subscribed our names as Witnesses.'

5. There is nothing on the face of the 1990 Will to indicate that the terms of the will were read to Mrs Bilich.  That is of some significance because, as I explain below, other evidence indicated that Mrs Bilich was unable to read English.  It appears that Mrs Bilich's native language was Croatian (sometimes described in the evidence as Yugoslavian).

Contemporaneous hospital records

1. Based on the hospital notes, and having regard to the evidence of Dr Golic, I make the findings of fact set out below.  (In the extracts from the notes which are quoted below, the translation of any abbreviations (as suggested by counsel, or able to be inferred from the notes) are included in square brackets after the abbreviated terms.) 

2. Mrs Bilich was admitted to RPH at 6.24 pm on 18 December 1990.[51]  She had had a fall at her home earlier that afternoon, in which she sustained an injury to her left hip.[52]  (As I note below, it later emerged that Mrs Bilich had also hit her head when she fell, but she was not treated for any head injury.) 

   [51] Exhibit 1.1 page 1.

   [52] Exhibit 1.1 page 1.

3. Mrs Bilich was known to the staff at RPH, having been treated there before, including for a right hip replacement three years earlier.[53]

   [53] Exhibit 1.1 page 1.

4. Mrs Bilich had an x-ray shortly after her arrival, and was later seen by an orthopaedic registrar, who confirmed that she would require hip surgery the following day.  She was given some intravenous fluids, and a femoral nerve block for pain relief.[54]  Shortly before midnight on 18 December 1990, Mrs Bilich was transferred to Ward 5H to await surgery.[55]

Initial presentation ‑ anxious and concerned to make a will

[54] Exhibit 1.1 page 2.

[55] Exhibit 1.1 page 2.

1. There are three noteworthy issues in Mrs Bilich's early presentation at RPH. 

2. First, from the outset, Mrs Bilich was noted as being anxious, and that state of anxiety continued until she underwent surgery.  The hospital notes indicate that on her initial examination, Mrs Bilich was 'anxious' and was 'encouraged to breathe slower'.[56]  Her anxiety was increased when, a little later that evening, Mrs Bilich's husband visited.  The notes record that she 'became upset while he was present'.[57] 

   [56] Exhibit 1.1 page 1.

   [57] Exhibit 1.1 page 1.

3. In addition, when Mrs Bilich was transferred to ward 5H later that evening, it was noted that she remained anxious.[58] 

   [58] Exhibit 1.1 page 29, page 52.

4. Mrs Bilich was subsequently seen by an orthopaedic surgeon or registrar, who described her as a '72 y. o. agitated [woman]'.[59] 

   [59] Exhibit 1.1 page 5.

5. Having regard to this evidence, I find that from her arrival at RPH until she underwent surgery, Mrs Bilich was anxious and agitated.

6. Secondly, from the outset, it was apparent that Mrs Bilich was concerned that she have the opportunity to make a will before she had surgery.  She made that clear to several staff members in the first few hours after her arrival at RPH.  At 10.30 pm on 18 December 1990, Mrs Bilich was examined by a nurse ‑ D Hodge ‑ who made the following note:

   *NB* Pt [patient] concerned re will and testament please organise prior to theatre.[60]

   [60] Exhibit 1.1 page 2.

7. The same nurse then wrote a similar note on the front of the Emergency Centre section of the hospital notes (presumably so that the note would be seen when Mrs Bilich was transferred to the next ward).  That note indicated:

   * NB * Pt [patient] wishes to write last will and testament prior to surgery![61]

   [61] Exhibit 1.1 page 1.

8. Upon her admission to ward 5H, Mrs Bilich continued to express her concern to make a will before she had her surgery.  The admitting nurse noted:[62]

   Pt [patient] very anxious – wants to make out her will and testament prior to theatre.

   [62] Exhibit 1.1 page 29.

9. A nurse who saw her shortly thereafter also noted:[63]

   Pt [patient] very anxious … .Would like to make out her last will and testament prior to theatre.

   [63] Exhibit 1.1 page 52.

10. The terms in which these notes are expressed, and the fact that Mrs Bilich repeatedly mentioned her desire to make a will, serve to emphasise how concerned Mrs Bilich was about that matter.  It is not possible to draw any inference about the cause of that concern.  It is no doubt consistent with an appreciation of the risks of surgery, but it may also suggest that Mrs Bilich was unhappy with the previous state of her testamentary wishes and wanted to alter them.

11. Having regard to this evidence, I find that Mrs Bilich was very concerned to make a will before she underwent surgery, and she repeatedly requested the hospital staff to ensure that she could do so.

12. Thirdly, Mrs Bilich's competency in English was not high.  She was able to speak some English, although it appears that Croatian was her native language.  When Mrs Bilich was admitted to ward 5H, the admitting nurse noted that Mrs Bilich had some 'communication issues', and that she 'speaks some English ‑ can manage ‑ speaks Yugoslav.'[64] 

    [64] Exhibit 1.1 page 28.

13. In addition, it is apparent that Mrs Bilich was not able to read English.  That much is clear from the fact that on 18 December 1990, when Mrs Bilich provided her written consent to the surgery, the consent form had to be read and explained to her by her treating doctor, Dr Wilson.[65]

    [65] Exhibit 1.1 page 64.

14. Furthermore, shortly before Mrs Bilich's surgery on 19 December 1990, one of the nurses, Mr Harrison (who was one of the subscribing witnesses to the 1990 Will), completed a Perioperative Nursing Record.  Mr Harrison noted that she had a 'communication impairment', namely that she spoke Yugoslav as her first language.[66]

    [66] Exhibit 1.1 page 62.

15. Finally, Mrs Bilich was transferred to the Shenton Park Rehabilitation unit some time after her surgery.  In the history form completed on her admission it was noted that Mrs Bilich 'speaks broken English at times appears to wander off and says inappropriate words on interview'.[67]

    [67] Exhibit 1.1 page 32.

16. Having regard to this evidence, which is consistent with the evidence set out below at [116] and [148], I find that Mrs Bilich was able to speak English, although not well, and that she was unable to read English, her first language being Croatian. 

Mrs Bilich's history of schizophrenia, and manifestation of delusional beliefs shortly after her arrival at RPH, and before her surgery

1. Upon her transfer to ward 5H, another history was taken from Mrs Bilich.  Those notes were clearly made very late in the evening of 18 December 1990, because they referred to the fact that Mrs Bilich 'fell today while cleaning the cupboards.'[68]  The notes of Mrs Bilich's history, which were recorded on Mrs Bilich's admission to ward 5H, contained the following observations:[69]

   PMH [Prior medical history] ? Schizophrenia

   Has for several years made claims that her husband is trying to poison her.

   As she is today.

   Husband has previously admitting hitting her to shut her up.

   Gives multiple complaints about her husband, goes on for hours so he hits her to shut her up.

   …

   SH [Social history] At home with her husband. (emphasis added)

   [68] Exhibit 1.1 page 4.

   [69] Exhibit 1.1 page 4.

2. The note I have italicised indicates that shortly after her admission to RPH, Mrs Bilich told the staff that her husband was trying to poison her.

3. Counsel for the Fourth Defendant submitted[70] that the terms of those notes suggested that someone else ‑ probably Mr Bilich ‑ provided some of Mrs Bilich's history.  It is clear that Mrs Bilich was one source of the information summarised in this history.  The reference to her making complaints 'today' suggests that that was the case.  While it may have been Mr Bilich who provided the additional information in this history, that seems unlikely.  By the time these notes were prepared, it was nearly midnight.  It is very likely that Mr Bilich had by then gone home, especially as his earlier visit to Mrs Bilich had served to increase, rather than lessen, her anxiety.  A more likely explanation as to the additional source of information in this history is that it was taken from the records of Mrs Bilich's earlier admissions to RPH.  That much is clear from a Nursing Admission and Assessment Form, which was also completed by the admitting nurse on ward 5H, which contains very similar information, and which indicates that the source of the information was 'old notes'.[71]  That form appears to have been completed, at least in part, when Mrs Bilich was transferred to ward 5H.[72]  That those earlier notes were the source of the information is significant because that explains how it is that Mrs Bilich's previous mental health issues and behaviour were known by RPH staff. 

   [70] ts 15.

   [71] Exhibit 1.1 page 26.

   [72] Exhibit 1.1 page 26, page 28.

4. The matters noted on the Nursing Admission and Assessment Form as part of Mrs Bilich's history of 'other health or psychological problems' included '? Schizophrenia'.[73]  

   [73] Exhibit 1.1 page 27.

5. As I have already mentioned, shortly before Mrs Bilich's surgery on 19 December 1990, one of the nurses, Mr Harrison, completed a Perioperative Nursing Record.  In that form, he gave an ambivalent 'yes/no' answer to the question whether Mrs Bilich was 'mentally aware'.  He also noted that she was 'schizophrenic (paranoid?)' but indicated that she was emotionally calm at that time.[74]

   [74] Exhibit 1.1 page 62.

6. Other entries in the hospital notes shed light on Mrs Bilich's mental health before her admission to hospital, and immediately prior to undergoing surgery on 19 December 1990. 

1. As I explain below, after her surgery, Mrs Bilich's mental health deteriorated rapidly and significantly.  The hospital notes made on her examination later during her stay at RPH indicate that Mrs Bilich had a history of mental ill-health. By way of example, on 21 December 1990, Mrs Bilich was examined by Dr K Smith (who was a psychiatric registrar at RPH at the time[75]).  Dr Smith made a lengthy note of his observations which included the following:[76]

   Pt [patient] has been known to RPH since 1985 when she sustained a # NOF [fractured neck of femur]. 

   A psychiatric referral was made then in regard to what would seem likely to have been symptoms of a paranoid schizophrenia, or paranoia. 

   She has been seen at RPH with lacerations, # [fractured] wrist, # [fractured] ribs etc.  She did not see a psychiatrist in 1985.  She was seen by two psychiatric registrars in 1988 after being assaulted by her husband.  I note the description of post-op agitation at RPH when she had her hip surgery – this appears to have settled with use of IM then oral Haloperidol. 

   …

   I have contacted the pt's [patient's] husband.  He denied that his wife has schizophrenia, but referred to her as 'a bit strange' and said 'she's always believing that I've got a girlfriend'.  He reported that the pt [patient] was agitated for some days post op at RPH, but that this settled.

   [75] ts 39.

   [76] Exhibit 1.1 pages 6-7.

2. Further information about Mrs Bilich's history of mental ill health was set out in notes made by Dr Smith when he saw Mrs Bilich on 27 December 1990.  Dr Smith's notes on that occasion included the following:[77]

   I saw the pt [patient] with her husband and saw him alone.  She readily reports her belief that her husband has an extramarital sexual relationship and a child.  She said that her husband has an angry temper.  She said he has attempted to poison her, and to beat her on the head.  She accuses him of being responsible for the death of their son during infancy – the son was killed by a truck when the mother ('had to be') was at work.

   Husband states that his wife regularly accuses him angrily for hours at a time.  He is aware that Dr de Jong previously suggested an admission to Graylands – this would be unacceptable to him because he would feel ashamed and accused by the Yugoslav community.  He said that his wife gets angry and strikes him.  She is often awake at night accusing him for some hours.  He says that he feels he has to tolerate the situation – no one else wants to get involved.  He admits that he becomes angry and says that his friends advise him to simply walk out when he feels angry.

   …  Personality is relatively well preserved.  The husband clearly states that the abnormal beliefs and accusations began 15 years ago, even though the pre-morbid personality was accusatory.

   [77] Exhibit 1.1 pages 9-10.

3. My findings of fact in relation to Mrs Bilich's mental health at the time she made the 1990 Will are set out below, after my discussion of the evidence of Dr Golic.

4. Before turning to consider the evidence of Mrs Bilich's mental health after her surgery, it is appropriate to identify the evidence as to the circumstances surrounding Mrs Bilich's execution of the 1990 Will.

Preparation and execution of the 1990 Will

1. Mrs Bilich was taken to the operating theatre at 2.15pm on 19 December 1990.  A note made at that time by Mr Harrison, who was one of the nurses on duty in ward 5H that day, was that 'Last will and testament in care of social worker'.[78]  As I have already mentioned, Mr Harrison was one of the subscribing witnesses to the 1990 Will. 

   [78] Exhibit 1.1 pages 52.

2. So, too, was Ms Lucy Annamalay.  The hospital notes include a note made by Ms Annamalay.  The note made by Ms Annamalay appears to have been originally dated 20 December 1990, but Ms Annamalay appears to have crossed that date out and inserted 19 December 1990.  In any event, the note reads as follows:[79]

   Mrs Bilich wanted her will to be done before she went down to theatre.  A temporary will was done yesterday and was handed to her this morning.  She's been advised to have another will done thru a solicitor when she is disch[arged] from hosp[ital].

   [79] Exhibit 1.1 page 5.

3. Given the late hour when Mrs Bilich was admitted to RPH, and transferred to ward 5H pending her surgery, it is more likely than not that Mrs Bilich's will was not prepared until the morning of 19 December 1990 before Mrs Bilich underwent surgery in the afternoon of that day.  In any event, there is no doubt that the 1990 Will was executed on 19 December 1990, as that is the date on the Will itself.

Mrs Bilich's deteriorating mental state after surgery

1. The hospital notes leave no doubt that after she had surgery, Mrs Bilich's mental health deteriorated quickly, to the point where she was manifesting significant symptoms of anxiety, agitation and, at times, aggression.  It is not necessary to set out all of the relevant parts of the hospital notes.  The following examples will suffice to illustrate the serious deterioration in her mental health which occurred.

2. The observations made immediately after surgery indicated that Mrs Bilich was 'confused and restless'.[80] 

   [80] Exhibit 1.1 page 63.

3. On examination at 4.10 am on 21 December 1990, Mrs Bilich

   appeared and stated being distressed this shift.  Teary at times.  Had to be placed in corridor for other pt's [patients'] comfort.  Had not slept by this time of report.[81]

   [81] Exhibit 1.1 page 53.

4. At 8 am on 21 December 1990, Mr Bilich telephoned the hospital and asked to see Mrs Bilich.  Staff asked Mrs Bilich whether she would like to see her husband and she replied several times that she would like to see him.  However, five minutes later she indicated that she did not wish to see him.  Later that day, Mr Bilich attended at RPH. He bought with him some blank cheques for Mrs Bilich to sign, so he could pay some household bills.[82]  The hospital notes indicate that

   pt [patient] became restless on occasions … pt [patient] was becoming confused on occasions. … Pt [patient] then would not settle and was continually trying to get out of chair and saying she wanted to go home to speak to her husband … pt [patient] could not be settled – so pt [patient] ambulated with 2 nurses.  Pt become increasingly aggravated trying to go home.[83]

   [82] Exhibit 1.1 pages 53 ‑ 54.

   [83] Exhibit 1.1 page 54.

5. By 12.50 pm the same day, Mrs Bilich was 'requiring 4 staff to restrain' her, and was eventually restrained using a posey jacket.[84]

   [84] Exhibit 1.1 page 54.

6. At 4.30 pm that afternoon, the hospital notes indicated that Mrs Bilich

   remains confused and aggressive following sedation.  Pt [patient] trying to get out of bed and continually pulling at posey jacket. … Pt [patient] continues to try to punch nursing staff. … Pt [patient] refuses all care.[85]

   [85] Exhibit 1.1 page 54.

7. By 7 pm that day, Mrs Bilich had been heavily sedated.[86]

   [86] Exhibit 1.1 page 54.

8. In the course of the day on 21 December 1990, Dr Wilson requested a psychiatric consultation for Mrs Bilich from Dr Smith.  Dr Wilson wrote:[87]

   Many thanks for managing this acute episode of psychosis in this known schizophrenic who deteriorated post-op and is now out of control with no insight.

   She apparently was not receiving any medication and her husband has displayed physical violence to her on a number of occasions in the past.

   [87] Exhibit 1.1 page 70.

9. As I have already mentioned, at some stage during the day on 21 December 1990, Mrs Bilich was examined by Dr Smith who made a note of his examination, some of which has been reproduced above.  Dr Smith made the following observations about Mrs Bilich's mental health:[88]

   [88] Exhibit 1.1 pages 6-7.

   Asked to review pt [patient] re agitation.

   …

   I note the report on her husband's behaviour towards the pt at home, and I understand that it is though that her current # [fracture] may have resulted from falling when the pt [patient] was pushed by him.

   Pt [patient] seen on ward 5H – in bed with revival drain and restrained by a sheet across the upper abdomen.  Calling for her husband.  Says that she wants to go home.  Often continuing to talk very loud in Yugoslav mixed with English.  Accuses her husband of having a girlfriend and of trying to poison her, but says that she wants to go home with him.  Able to be settled gradually, but with no real rapport able to be generated, and remains preoccupied with her beliefs … tearful, depressed and not obviously frightened.  When offered medicine she laughs and says that it is poison.  She is fully conscious and alert, aware that she is in a 'doctor-place', and knows that it is December 1990 – 'Christmas'.  Able to register my name.

   Impression.  The patient seems unlikely to be a delirium due to post op complications.  Pt [patient] does appear likely to have a paranoid schizophrenia, is delusional, … and insightless ‑ wanting to go home.

   She needs immediate treatment to produce sedation, with or without her will, and this is justified under the Hospital's Duty of Care ‑ she still has a drain in situ.

   It is likely that the acute agitation can be settled fairly quickly with Haloperidol.  Until the pt [patient] is settled either a one-to-one nurse special or an orderly guard is necessary.  The pt [patient] must be attended to at all times while the restraint is in place, and this must be removed as soon as she is adequately settled.

   …

   Beyond this acute phase some consideration must be given to long term control by medication ‑ this could avoid angry inappropriate responses to her behaviour by her husband.  This might entail a transfer to Graylands Hospital on forms, so the husband would have to be informed by me.

10. According to a medication chart, Mrs Bilich was given haloperidol on 21 December 1990, and that she appears to have been given haloperidol again on numerous occasions between 22 December 1990 and 9 January 1991.[89] 

    [89] Exhibit 1.1 pages 20 ‑ 23.

11. By 24 December 1990, Mrs Bilich remained confused, and was experiencing visual hallucinations,[90] however her condition appears to have improved somewhat.  Dr Smith examined Mrs Bilich again later during that day.  His note indicated:[91]

    Pt [patient] has been ambulant this morning and fully alert and clear.

    Nursing staff report that pt [patient] has difficulty in normal comprehension of her surroundings.  At times she appears suspicious and (?) fearful eg when attempting mobilisation.  Was noted to be hallucinating when falling asleep later this morning.

    When seen by me pt [patient] appears still over sedated.  Unable to keep eyes open, begins to mumble incoherently, then sleep.  Says it is Christmas but says it is winter with snow.  Unable to say where she is.

    …

    Pt [patient] may have some dementia added to her chronic psychiatric disorders. …

    If pt [patient] is transferred to RPRA [Royal Perth Rehabilitation] would suggest referral to psychogeriatrics.  Would also suggest social worker review of current domestic situation.

    [90] Exhibit 1.1 page 56.

    [91] Exhibit 1.1 pages 8-9.

12. By 26 December 1990, Mrs Bilich was 'more alert' but still 'slightly confused at times'.[92]

    [92] Exhibit 1.1 page 57.

13. On 27 December 1990, Dr Smith examined Mrs Bilich again.  His note of his observations, some of which have already been set out above at [80], also included the following:[93]

    Pt [patient] reviewed.

    Appears settled, calm and co-operative.

    The pt [patient] appears to have a paranoia or a paraphrenia.  Personality is relatively well preserved.  …  She owns property in Midland and receives an income.  He receives an invalid pension.

    Please continue oral Haloperidol … .  This should also be continued post discharge … .  The husband says that this should only be given if his wife believes it is not for her mental problem ‑ therefore it could still be necessary to consider invoking the Mental Health Act through a brief admission to Graylands.  Follow up could then be by Swan clinic.  I will forward the consult to the Psychogeriatrics Team.

    [93] Exhibit 1.1 pages 9-10.

14. On 27 December 1990, Mrs Bilich was transferred from RPH to Shenton Park Rehabilitation.  The notes made on that occasion indicated, relevantly, that:[94]

    S/B [seen by] psychiatrists in RPH.

    ? paranoia

    ? paraphrenia

    Referred on to psychogeriatricians.

    [94] Exhibit 1.1 page 11.

15. However, within a short time of her admission to the Shenton Park Rehabilitation unit, it was noted that Mrs Bilich was no longer manifesting any active psychotic symptoms[95] although she was still suffering poor mental health.

    [95] Exhibit 1.1 pages 12 ‑ 13.

16. That was confirmed by the examination of two psychogeriatricians, Dr Jacobs, and Dr Kerr. (Dr Jacobs was a psychiatrist with an interest in psychiatry in elderly patients,[96] and Dr Kerr was the registrar to Dr Jacobs.[97])  Dr Kerr examined Mrs Bilich on 3 January 1991 and his notes included the following observations:[98]

    [96] ts 38.

    [97] ts 38.

    [98] Exhibit 1.1 pages 13 ‑ 15.

    I received consult re ‑ Mrs Bilich from Dr Kevin Smith and I note his earlier assessments and discussion with Mr Bilich.

    …

    She described her husband as always being 'nasty'.  She described the incident when he assaulted her and she was admitted to RPH.  She also talked of her beliefs in his extra-marital affairs.  In the past she has tried to track down women she believes he has seen and to determine if he has had any illegitimate children.  …

    When I saw her, she was lying on her bed.  She spoke with a thick Yugoslav accent and I found some of this a little difficult to understand.  She said she felt dizzy.  Her mood was labile and she was tearful recalling her son's death.  She denied feeling depressed … . She repeated her concerns about her husband and had some doubts about taking medication.  She denied any hallucinations.  There was quite marked cognitive impairment.

    …

    But – registration of a name and address very poor and recall one of 7 items at 5 mins. 

    Very poor general knowledge and could not discuss recent events.

    Nursing staff describe visual hallucinations a few days ago. …

    Impression

    Mood appears labile rather than depressed.

    Has cognitive impairment - ? acute, ? acute or chronic

    ? significance of striking head when fell # [fracture] femur?

    Skull X-rays or CT indicated

    Difficult to determine extent of delusional component to ideas re husband.  Need to assess this in context of marital problem.  I feel sw [social worker] input and assessment is required. 

    Need to assess risk to her (and ? husband) at home.

    I think she's a bit over-sedated …

    Need to exclude any other acute cause for a delirium.

    I will discuss management with Dr Jacobs and review.

17. Dr Jacobs examined Mrs Bilich the following day.[99]  Dr Jacobs provided the following observations:

    [99] Exhibit 1.1 page 15.

    See detailed notes by Dr Kerr of history and mental state examination.

    On review today she seems significantly improved compared with earlier accounts.

    …

    She denies psychological symptoms apart from some mild forgetfulness.

    …

    She says that her husband tends to be impatient with her and was unfaithful 15 years ago.  I could not elicit any concern by her about current infidelity by her husband.

    …

    Her mood and behaviour was appropriate.

    There was no abnormal thought content throughout today's interview.

    She was orientated in time and place but there is evidence of some cognitive deficit.  …

    The sequence of events here suggest that the earlier psychosis may reflect a delirium which has now largely settled.  I am not convinced of the presence of a chronic paranoid schizophrenic disorder (though of course she may have had that but it has been treated with the haloperidol).  I suggest slow withdrawal of the haloperidol.

    Because of the head injury a CT may be relevant.  There is I think a recent history of malnutrition when she was in Yugoslavia so vitamin screening too would be worthwhile.

    I agree a SW [social work] review of the home situation would be of value.

    If there are significant problems then follow up by a SW [social worker] from the Multicultural Psychiatric Service may be of benefit.

18. The observations in the notes made by Dr Kerr and Dr Jacobs which I have italicised are, in my view, significant.  Having been treated with Haloperidol, Mrs Bilich was no longer alleging that her husband was trying to poison her.  She continued to refer to his past extra-marital affairs, but there was no longer any mention of a current girlfriend.  To my mind, that provides support for the inference that prior to the surgery, Mrs Bilich was operating under a delusional belief, at least to the extent that she believed that her husband was trying to poison her.  However, once she had treatment with Haloperidol, that delusional belief no longer manifested.

19. Mrs Bilich remained at Shenton Park Rehabilitation until 7 January 1991, and she was discharged from RPH the following day.  On Mrs Bilich's discharge, a discharge letter was sent to her general practitioner.  That letter referred to the treatment for the fracture of her hip, and went on:[100]

    (2)  Postoperative psychosis has settled with haloperidol which is now being withdrawn; Dr Jacobs (psychogeriatrician) feels that an organic psychosis needs exclusion ‑ CT head and vitamin studies have been performed ‑ results pending.  If there is continuing evidence of psychosis, follow up at the multicultural psychiatric clinic is appropriate.

Expert evidence ‑ Dr Zlatan Golic

[100] Exhibit 1.1 page 3.

1. The Fourth Defendant called a psychiatrist, Dr Zlatan Golic, to give evidence at the trial.  He had been provided with a copy of all of the hospital notes and was asked to provide his opinion on a number of issues relevant to Mrs Bilich's testamentary capacity as at 19 December 1990.[101]  Dr Golic's evidence was not contradicted, and I accept it. 

   [101] Exhibit 1.3.

2. Dr Golic provided a written report setting out his answers to a series of questions.[102]  Relevant portions of that report are set out below.  I have interposed the questions put to Dr Golic, in italics, before each of his answers:

   [102] Exhibit 1.3.

   1.Whether or not the Deceased had testamentary capacity as at 19 December 1990.

   On the basis of available information it is not possible for me to comment … . More importantly, there is no specific information to suggest that she was not fit to exercise her testamentary capacity and provide her Will.

   2.Whether the notes record the Deceased was diagnosed as having dementia.

   After carefully examining all of the available notes I could not find any evidence to support the Deceased's diagnosis of Dementia.

   3.Whether the notes record the Deceased as not fit to provide instructions for a Will.

   … I could also not find any evidence to say that the Deceased was not fit to provide instructions and exercise her testamentary capacity in form of the Will.

   4.Whether the notes record the Deceased as taking any medication that could have impacted on her legal capacity at the time she made her Will.

   The available notes do not indicate that the Deceased was taking any medication prior to writing her Will. … [T]he Deceased was given IV fluids … . In my opinion this was provided to ensure adequate hydration.  I am unaware that she was given any medication that could have impacted on her capacity at the time she made her Will.

   5.The notes record that the Deceased was given Haloperidol after the surgery but not before the surgery.  Could you please comment on what the drug Haloperidol is prescribed for.

   From the notes available it appears that the Deceased did not take any regular medication prior to the admission to [RPH].  I note she was prescribed Haloperidol post surgery on the basis of deterioration in her mental state.  Haloperidol is an older style of antipsychotic medication.  …

   In my opinion based on the available notes the Deceased was prescribed antipsychotic medication (Haloperidol) for treatment of psychotic symptoms.  The medication of choice at the time for psychotic symptoms was Haloperidol.  Psychotic symptoms are an integral part of psychotic process but also can occur in people experiencing delirium.

   6.Whether the fact that the Deceased was given Haloperidol post-surgery but not pre-surgery gives you any insight of her mental state pre-surgery and if so:

   Based on available notes / information it appeared that the Deceased was most likely stable and well prior to the surgery.  Her mental state rapidly deteriorated after the surgery.

   (a)Whether you may draw any inference that her condition changed after the surgery

   Based on available notes / information there is little doubt that the Deceased mental state had abruptly changed after the surgery.  From the available information there is evidence that the Deceased mental state was compromised following surgery to include the presence of acute psychotic symptoms, mood disorder and marked changes in her overall behaviour.

   (b)Is there any possible explanation for that

   There are several possible explanations for the Deceased abrupt change in her mental state post surgery.  The examining Psychiatrist noted presence of psychotic symptoms and overall changes in her behaviour post surgery.  He diagnosed her with 'psychosis', 'schizophrenia' and/or 'organic psychotic disorder'.  Also he briefly entertained the possibility of post-operative Delirium.  One of the plausible scenarios would be the Deceased was in stable remission prior to her admission to [RPH].  This was followed by brief deterioration in the Deceased mental state post surgery which would not be uncommon.

   The other common presentation is post-operative Delirium which can present with psychotic symptoms, insomnia and marked changes in behaviour including restlessness, agitation and fluctuating level of consciousness.  From the available notes the Deceased had experienced such symptomatology.

   …

   Please note that the onset of Delirium is usually sudden. Prodromal symptoms (such as restlessness, agitation and fearfulness) may occur in the hours and days preceding the onset of florid symptoms.  After identification of the causative factors the symptoms of Delirium usually recede over a brief period of time particularly if treated promptly.

   Delirium is a common disorder.  Approximately 10% - 15% of patients on general surgical wards and 10% - 25% of patients on general medical wards experience delirium during their hospital stay.  Approximately … 40% - 50% of patients who are recovering from surgery for hip fractures have an episode of Delirium.  Please note that advanced age is a major risk factor for development of delirium.

   (c)Is it possible that the anaesthetic and surgery, such one as the Deceased had undergone, could alter the Deceased's mental state

   This would be difficult to comment on as an administration of general anaesthetic is closely associated with surgical procedures.  Major surgery which requires anaesthetic and medication is always a stressful event which can led to deterioration in mental state particularly in vulnerable individuals.  It is possible that the Deceased hip surgery was a major precipitant to affect her mental state.

   (d)Please comment if the Deceased was taking any regular medication prior to the surgery.

   According to all available information I could not find any evidence that the Deceased was taking any regular medication prior to her admission to [RPH].

1. Dr Golic also attended at the trial to give evidence, and was cross examined.  In doing so, Dr Golic was able to clarify what was meant by some of the terms used in the medical notes.  He explained that paraphenia is 'a loose term to described paranoid schizophrenia' although that is a term that is no longer used in psychiatry.[103] 

   [103] ts 31.

2. Dr Golic contrasted a diagnosis of paranoid schizophrenia with that of a person suffering from a delusional disorder, in which the person experiences persecutory delusions.  A person with paranoid schizophrenia has to satisfy the criteria for schizophrenia, which requires at least six months of psychotic symptoms and one or more months of acute symptoms characterised by two or more inappropriate beliefs, delusions, perceptual abnormalities, hallucinations, or disorganised behaviour, speech or thought processes.  In the case of paranoid schizophrenia, the major symptoms are persecutory delusions.  In schizophrenia there is also a marked deterioration in psychosocial and occupational functions.[104]  Furthermore, the person would not be suffering from only one delusion, but rather would be suffering from multiple symptoms (as described above) which would result in a 'marked deviation in behaviour, thinking process'.[105]  He explained that a person suffering from schizophrenia could be in full remission with no evidence of any symptoms, could be suffering chronic schizophrenia, on an ongoing basis with a marked deterioration in day to day functioning, or could be suffering from episodic symptoms, in which certain symptoms might become prominent.[106]

   [104] ts 32 ‑ 33.

   [105] ts 37.

   [106] ts 38.

3. In contrast, a person who is suffering from delusional disorder may experience persecutory delusions but not the other features of schizophrenia, and may not suffer from the same deterioration in psychosocial and occupational function.  Dr Golic agreed that a person suffering from a delusional disorder of a persecutory nature might be considered to suffer from a paranoid condition.[107]  Dr Golic also confirmed that someone suffering from a delusional disorder could behave in an accusatory manner, could behave in an angry and agitated way, and could hold their delusional beliefs over a long period of time especially if their condition was untreated.[108]  Those persecutory delusions could include beliefs such as that a spouse was having an affair, or that someone was trying to poison them, and if untreated, those beliefs could become more entrenched and fixed over time.[109] He confirmed that it would, by definition, be very difficult, if not impossible, to reason with someone suffering from such delusional beliefs about those matters.[110] 

   [107] ts 33.

   [108] ts 34.

   [109] ts 34.

   [110] ts 34.

4. Dr Golic explained that a personal suffering from a delusional disorder involving persecutory beliefs is often:

   able to function quite well in other areas of psychosocial and occupational function … unless there is a direct interaction between that belief and whatever is in question [as to] whether that person is able to hold work, engage in social functioning, yes.  That's correct.[111] 

   [111] ts 37.

5. Dr Golic further explained that 'if we are talking about [a] single, deeply engrained delusional belief of [a] persecutory nature it does not mean that other areas of functioning are at all affected'.[112]

   [112] ts 37.

6. Dr Golic concluded that the hospital notes provided 'plenty of evidence for delirium'[113] after Mrs Bilich's surgery.  He described post-operative delirium as very common, especially in elderly people.[114] 

   [113] ts 35.

   [114] ts 35.

7. Dr Golic explained that the reference in the notes to an 'organic psychosis' was a reference to a psychotic disorder caused by organic factors, which could include a medical condition, metabolic condition, infection, treatment with licit substances, or a psychotic disorder induced by illicit substances.[115]  In the notes, the term meant that some medical condition or a related condition had 'altered the patient's mental state to experience full-blown psychotic symptoms'.[116]  Dr Golic indicated that if a patient with no pre-existing mental illness developed a psychosis after surgery, he would not have expected them to be manifesting symptoms of delusional beliefs before the surgery.[117] 

   [115] ts 35 ‑ 36. 

   [116] ts 35.

   [117] ts 36.

8. Dr Golic confirmed that it was not possible for him to comment on whether Mrs Bilich had testamentary capacity at the time she made the 1990 Will.[118]

Statutory Declaration made by Mrs Bilich in 1992

[118] ts 37.

1. There is one other piece of evidence to which I should refer.  In May 1992, Mrs Bilich made a statutory declaration in support of caveats she had placed over four properties for which she was the sole registered proprietor, and one property she and Mr Bilich owned, as joint tenants.  That statutory declaration was in evidence.[119]  That statutory declaration is of present relevance for two reasons.

   [119] Exhibit 2.

2. First, the statutory declaration (which it appears was very likely prepared with the assistance of a solicitor) specifies that when Mrs Bilich made the declaration in front of a justice of the peace, it was first translated into the Croatian language.  That supports the inference that in May 1992, Mrs Bilich did not have sufficient competence in the English language to read the contents of the declaration before she swore to the truth of those contents.  That is entirely consistent with the position revealed by the hospital notes to which I have already referred.  This evidence supports the finding set out above, that Mrs Bilich was unable to read English.

3. Secondly, in the statutory declaration, Mrs Bilich notes that her marriage to Mr Bilich 'has broken down although we continue to reside under the same roof'.  She also noted that the four properties she owned and for which she was the sole proprietor were paid for 'from my own money' as she had worked throughout her marriage, whereas the jointly owned property was purchased with funds from a joint bank account in the name of her husband and herself.  Mrs Bilich's reasons for placing caveats over her own properties are relevant for what they reveal about her thinking, in 1992.  Mrs Bilich deposed that:

   Before I went on holiday to my sister in Yugoslavia in 1991 I left the duplicate Certificates of Title of the said land in my bedroom.  When I got home from my holiday the duplicate Certificates of Title had gone from my bedroom and I have not found them.

   I am suspicious that the duplicate Certificates of Title may fall into the wrong hands and someone may use them to register a Transfer of Land or other document adverse to my interests.

4. Given that her marriage had broken down, but her husband was still residing at the same house, and there is no suggestion that her house had been burgled, the clear implication is that Mrs Bilich was suspicious that her husband may have taken the certificates of title, and might use them for some fraudulent purpose.  That document makes clear that Mrs Bilich had a deep distrust of her husband. 

5. Having regard to the evidence as a whole, there is no doubt, and I find, that Mr and Mrs Bilich had an unhappy marriage, notwithstanding that it lasted for many years.

Findings of fact as to Mrs Bilich's mental health prior to undergoing surgery on 19 December 1990 and thereafter

1. Having regard to the evidence set out above, and to Dr Golic's evidence, I find that in the years prior to her admission to RPH in December 1990, Mrs Bilich had been seen by the staff at RPH who considered that her behaviour and symptoms suggested that she may have been suffering from schizophrenia.  I find that she had not received treatment for her mental ill health, other than while in RPH for treatment for other matters.  Sadly, that lack of treatment appears to have resulted both from her own refusal to believe that she needed it, and from cultural issues which meant that mental ill health was considered a source of shame and as a result of which Mr Bilich was not supportive of his wife receiving treatment. 

2. In any event, as Dr Golic explained, even assuming that that suspected diagnosis of schizophrenia was correct, a person suffering from schizophrenia will not necessarily have chronic and ongoing symptoms.  There may alternatively be periods of remission with no symptoms at all, or episodes where the symptoms of that schizophrenia become prominent.  Consequently, the fact that Mrs Bilich may previously have suffered from schizophrenia does not, of itself, permit any conclusion to be made about her condition on 19 December 1990 when she made the 1990 Will.

3. Having regard to the evidence discussed above, I find that it is more likely than not that on 18 and 19 December 1990 Mrs Bilich was in an anxious and agitated state, that she showed signs of impaired mental awareness, and that she was exhibiting symptoms of delusional beliefs. 

4. Given that Mrs Bilich's marriage was unhappy, and that in her lucid moments she expressed a belief that Mr Bilich had been unfaithful to her some years before, I am not convinced that it is more likely than not that Mrs Bilich's belief of her husband's previous or ongoing infidelity can be characterised as delusional.  It is not necessary to resolve that question.

5. However, I am persuaded that it is more likely than not that Mrs Bilich's belief that Mr Bilich was trying to poison her, and had tried to poison her in the past, was a delusional belief.  It was a belief in behaviour by her husband that, by its nature, was unlikely to be based in reality.  That was a belief that Mrs Bilich expressed on 18 December 1990.  The presence of that belief in her mind may have contributed to the additional anxiety she manifested when her husband visited her on the evening of 18 December 1990. 

6. Furthermore, having regard to the evidence discussed at [73], I find that it is more likely than not that that delusional belief ‑ that her husband was trying to poison her - was one that Mrs Bilich had held for years. 

7. That that belief was delusional is also supported by the fact that after Mrs Bilich had been receiving treatment with Haloperidol for about a fortnight, she no longer expressed that belief to medical staff.  The notes made by Dr Kerr and Dr Jacobs on 3 and 4 January 1991 contain no mention of any such claim.  (In contrast, Mrs Bilich continued to report that her husband had been unfaithful in the past.)

8. In my view, the evidence does not support a finding that Mrs Bilich was suffering from an episode of schizophrenia on 19 December 1990 when she made the 1990 Will.  I am not persuaded that she was suffering from more than one delusion (namely that her husband was trying to poison her) and the evidence does not support the conclusion that she was displaying a marked deviation from all aspects of normal behaviour and thinking processes.  On the contrary, her desire to make a will was consistent with a rational awareness that surgery carries risks, especially for an older person.

9. However, the evidence does establish, on the balance of probabilities, that Mrs Bilich was suffering from a delusional disorder, and that she was manifesting that disorder while at RPH on 18 and 19 December 1990.  Having regard to Dr Golic's evidence, Mrs Bilich's anxiety and agitation, and her impaired mental awareness, at the time, is consistent with that conclusion.  Further, Mrs Bilich's ability to function relatively normally in other ways (such as her request to make a will, and the fact that until she broke her hip she had been living at home with her husband) is not inconsistent with the conclusion that she was suffering from a delusional disorder which impaired her thinking to some extent, but which did not result in the complete deterioration of psycho‑social and occupational function. 

10. Having regard to the nature of the delusional belief from which Mrs Bilich suffered, I find that it is more likely than not that that delusional belief affected her relationship with, and attitude towards, her husband.  The evidence demonstrates that she was clearly deeply suspicious and distrustful of him.

11. The evidence leaves no doubt, and I find, that after Mrs Bilich had surgery on 19 December 1990, her mental health rapidly and significantly deteriorated.  The symptoms recorded in the hospital notes are entirely consistent with her suffering from post-operative delirium, which as Dr Golic explained, is very commonly experienced by patients recovering from hip surgery, and by elderly patients.  I find that Mrs Bilich developed post-operative delirium after she had the surgery on 19 December 1990. 

12. The evidence is less clear as to whether Mrs Bilich's post-operative symptoms support a conclusion of an episode of paranoid schizophrenia.  Dr Jacobs was not convinced that it was.  For present purposes, it is unnecessary to resolve that question.  The evidence does not support a finding, on the balance of probabilities, that the symptoms Mrs Bilich displayed after her surgery were a continued manifestation of the same disorder she had exhibited before the surgery.  The intervention of the surgery suggests an alternative cause of her post-operative symptoms.  The marked deterioration in her cognitive impairment after the surgery also sheds no light on her cognitive functioning prior to the surgery. 

13. I turn, then, to consider the implications of these findings for Mrs Bilich's testamentary capacity at the time she made the 1990 Will.

1. Why the Fourth Defendant has not established that Mrs Bilich had testamentary capacity when she made the 1990 Will

1. The Fourth Defendant, who propounds the 1990 Will, bears the onus of establishing its validity. 

2. The 1990 Will is in writing, was apparently signed by Mrs Bilich, and the terms of the 1990 Will suggest that she intended, by her signature, to give effect to the writing signed as her will.  The will states that Mrs Bilich signed it in the presence of both Mr Harrison and Ms Annamalay, and they both attested and signed the will in the presence of Mrs Bilich. 

3. Although I have found that Mrs Bilich was unable to read English, and although the attestation clause does not indicate that the 1990 Will was read to Mrs Bilich before she signed it, I would not, on that basis alone, conclude that the presumption that that Will was validly made had been displaced.  As I have said, it appears very likely that the 1990 Will was written for Mrs Bilich by Ms Annamalay.  There is nothing to suggest that Ms Annamalay knew Mrs Bilich or that she knew the Fourth Defendant.  Accordingly, it can be inferred that the terms of the 1990 Will were those Mrs Bilich instructed Ms Annamalay to write.  Given that the 1990 Will appears to have been prepared on the morning prior to Mrs Bilich's surgery, it is very likely that Ms Annamalay wrote out the will, and that it was executed immediately by Mrs Bilich, in the presence of Ms Annamalay and Mr Harrison, who was on duty at the time and attending to Mrs Bilich.  Further, the 1990 Will is a very simple one.  Notwithstanding Mrs Bilich's inability to read English, the circumstances in which it was executed do not cause me to doubt whether she was aware of the contents of the will which she signed. 

4. However, in this case, there is evidence which displaces the ordinary presumption that a will which is properly executed, and rational on its face, was made by a person of competent understanding.  That evidence is that at the time she made the 1990 Will, Mrs Bilich was suffering from a delusional disorder, in which she believed that her husband was trying to poison her. 

5. The existence of that evidence means that the Fourth Defendant cannot rely on the presumption that the 1990 Will was made by a person of competent understanding.  Instead, the Fourth Defendant bears the onus of establishing that Mrs Bilich was of sound mind at the time of executing the 1990 Will.

6. Some aspects of the evidence support the conclusion that Mrs Bilich was of sound mind.  First, the delusional disorder from which I have found Mrs Bilich was suffering was not one which caused complete impairment of all psychosocial and occupational functions. 

7. Secondly, Mr Harrison and Ms Annamalay executed the 1990 Will, without any indication in the hospital notes that they held any doubt as to Mrs Bilich's capacity to make a will at the time.  However, I am not persuaded that it can be inferred that they necessarily regarded Mrs Bilich as capable of exercising the testamentary capacity required to make a valid will.  The alternative inference which is equally open is that in the face of Mrs Bilich's repeated requests to make a will, and her anxiety that that should occur before the surgery, Mrs Bilich was given assistance to make a will, so that she might put her mind at ease on that question before the surgery.  The fact that Ms Annamalay noted that Mrs Bilich had been advised that she should have another will made by a solicitor, after her discharge from hospital, is consistent with Ms Annamalay holding some reservations about Mrs Bilich's testamentary capacity. 

8. Having regard to the totality of the circumstances, however, I am not satisfied that Mrs Bilich had testamentary capacity at the time she made the 1990 Will.  That is because I consider that it is more likely than not that the delusional disorder from which Mrs Bilich was suffering was one which significantly affected her attitude towards Mr Bilich.  In particular, I am satisfied that it is more likely than not that the nature of the delusional belief that Mrs Bilich held about her husband affected her ability to rationally comprehend that he had a very strong claim to her testamentary bounty.  He was her husband of 37 years, they continued to reside together, even if not happily, and it appears that he was in a far less strong financial position than she was (given the evidence to which I have referred, which suggested that he was in receipt of an invalid pension, and needed her financial support to pay the household bills, while she owned property from which she derived an income).  Yet in the 1990 Will Mrs Bilich made no disposition of any part of her estate to her husband, and she left the entirety of her estate to a nephew who lived overseas.  No explanation was given for why Mrs Bilich had decided to do that. 

9. I have not overlooked the fact that Mrs Bilich's marriage was unhappy, but I am not satisfied that it can be inferred that that was the only explanation for Mrs Bilich's failure to make provision for Mr Bilich in her will.  As I note below, the evidence was that when Mrs Bilich made the 1976 Will, she advised the staff of the Public Trustee that she did not wish to provide for Mr Bilich in that will, because he had 'gone off with another woman and has assets'.[120]  However, that was the situation 14 years before Mrs Bilich made the 1990 Will, and it appears that those circumstances changed in the interim.  At the time Mrs Bilich made the 1990 Will, she and Mr Bilich were residing together, and as I have already observed, he was living on the invalid pension and relied on her financial support to pay the household bills.  In my view, Mrs Bilich's failure to make any provision in her will for Mr Bilich and the absence of any indication for that decision on this occasion, supports the conclusion that the delusional disorder from which Mrs Bilich was suffering was one which, to use the words of Cockburn CJ, 'poison[ed] [her] affections [and] pervert[ed] [her] sense of right'.

   [120] Exhibit 1.10.

10. The doubt with which I am left as to Mrs Bilich's capacity, as a result of the delusionary disorder from which she was suffering, is substantial enough to preclude the conclusion that she was of sound mind and understanding at the time she made the 1990 Will.

11. The Fourth Defendant has not established that Mrs Bilich had testamentary capacity at the time she made the 1990 Will.  That will is not valid. 

12. The Fourth Defendant's counterclaim will be dismissed. 

1. I turn to consider the position in respect of the 1976 Will.

1. Why probate should be granted in respect of the 1976 Will

1. The 1976 Will was prepared by staff of the Public Trustee, on instructions from Mrs Bilich. 

2. An instruction form was completed by staff of the Public Trustee when they took Mrs Bilich's instructions.  That form indicated that Mrs Bilich owned a number of properties.  Mrs Bilich indicated that the two persons she wished to benefit under the will were her sisters, Vida Lukovic and Anka Mori.  She noted that her husband was not included in that group.  As I have already mentioned, Mrs Bilich provided that the reason for that omission was:

   Husband ‑ has gone off with another woman and has own assets.[121]

   [121] Exhibit 1.10.

3. The instruction form also contains a note by one of the Public Trustee's staff as follows:

   Read over ‑ 'unable to comprehend written english'.[122]

   [122] Exhibit 1.10.

4. After the revocation of all previous wills and testamentary writings, Mrs Bilich appointed the Public Trustee to be the executor and trustee of her will.  She then provided:

   Subject to the payment therefrom of my just debts funeral and testamentary expenses Probate and Estate duties I DEVISE and BEQUEATH the whole of my real and personal estate to such of them my sisters VIDA LUKOVIC and ANKA MORI as shall survive me if both of them in equal shares but if any said sister shall predecease me leaving children who shall survive me then those children shall take equally the share which their mother would otherwise have taken.

5. The 1976 Will was signed by Mrs Bilich.  The 1976 Will was witnessed by two officers of the Public Trustee, Delia Mary Parker and Gwendoline Anne McEvoy.  The witnesses' attestation clause provided:

   Signed by the Testatrix as and for her last Will the same having been previously read over to her by me Delia Mary Parker, the undersigned the Testatrix being unable to comprehend written English when the Testatrix seemed thoroughly to understand and approve the same in our presence and witnessed by us in the presence of her and of each other.

6. In her affidavit, Mrs Parker confirmed that Mrs Bilich executed the 1976 Will in the presence of her and Ms McEvoy, that Mrs Parker read the will to Mrs Bilich before she signed it, and that 'she seemed to thoroughly understand and approve the same'.[123]

   [123] Exhibit 1.9.

7. There was no evidence that at the time of executing the 1976 Will Mrs Bilich was suffering from the delusional disorder which was evident in 1990, or from any other mental ill-health that may have adversely impacted on her testamentary capacity.  The reason why Mrs Bilich made no provision for her husband in the 1976 Will was expressly explained by Mrs Bilich.  In the circumstances which then existed, it was not an irrational explanation.

8. There is nothing in this case to displace the presumption that when she executed the 1976 Will, which was properly executed and rational on its face, Mrs Bilich was a person of competent understanding.

9. I am satisfied that the 1976 Will is valid.  There will be a grant of probate in respect of the 1976 Will.

Conclusion and orders

1. There will be judgment for the Public Trustee in the action.  The Fourth Defendant's counterclaim will be dismissed.  The validity of the 1976 Will will be pronounced in solemn form, and I will order that the Probate Registrar issue a grant of probate of the 1976 Will to the Public Trustee.

2. The parties should confer about the terms of a minute setting out these orders and any other orders which should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AH
SECRETARY

14 DECEMBER 2018