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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THE PUBLIC TRUSTEE -v- ROYAL PERTH HOSPITAL MEDICAL RESEARCH FOUNDATION INC [2014] WASC 17

CORAM: EM HEENAN J

HEARD: 6 - 8 AUGUST 2013

DELIVERED : 29 JANUARY 2014

FILE NO/S: CIV 1154 of 2010

MATTER :The Will of ALEXA HOFFMAN deceased

BETWEEN: THE PUBLIC TRUSTEE
Plaintiff
AND
ROYAL PERTH HOSPITAL MEDICAL RESEARCH FOUNDATION INC
First Defendant
UNITING CHURCH IN AUSTRALIA (PROPERTY TRUST) WA
Second Defendant
EPILEPSY ASSOCIATION OF WESTERN AUSTRALIA INC
Third Defendant
ASTHMA FOUNDATION OF WA INC
Fourth Defendant
DEBORAH MICHELLE KRASINIQUI
Fifth Defendant
DAVID THOMAS HOFFMAN
Sixth Defendant
MALCOLM JOHN SAUNDERS
Seventh Defendant
MICHAEL SAUNDERS
Eighth Defendant
TRACEY LOUISE CLARKE
Ninth Defendant
CHANTELLE MARIE ROUGE
Tenth Defendant
TENIELLE CHERIE CLARKE
Eleventh Defendant
VALERIE SAUNDERS
Twelfth Defendant
JUDITH MARGARET HOFFMAN
Thirteenth Defendant

Catchwords:

Probate - Wills and intestacy - Claim and counterclaims for grant of representation in solemn form - Application for proof of a will in solemn form - Counterclaims for letters of administration upon alleged intestacy - Challenged testamentary capacity of the deceased - Allegations of obsessional views and preoccupations of deceased such as to negate testamentary capacity

Legislation:

Administration Act 1903 (WA), s 14
Coroners Act 1996 (WA), s 26(1)
Guardianship and Administration Act 1990 (WA)
Family Provision Act 1972 (WA)
Mental Health Act 1983 (UK), s 12(2)
Wills Act 1970 (WA), s 8, s 14A, Pt X

Result:

Grant of probate in solemn form of will of 5 August 2001 to plaintiff
Counterclaims dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     Mr D L Jones
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant           :     No appearance
Eleventh Defendant      :     No appearance
Twelfth Defendant        :     In person
Thirteenth Defendant     :     In person

Solicitors:

Plaintiff:     Public Trustee (WA)
First Defendant             :     Submitting appearance
Second Defendant         :     Submitting appearance
Third Defendant           :     Submitting appearance
Fourth Defendant          :     Submitting appearance
Fifth Defendant            :     Submitting appearance
Sixth Defendant            :     Public Trustee (WA)
Seventh Defendant        :     Submitting appearance
Eighth Defendant          :     Submitting appearance
Ninth Defendant           :     Submitting appearance
Tenth Defendant           :     Submitting appearance
Eleventh Defendant      :     Submitting appearance
Twelfth Defendant        :     In person
Thirteenth Defendant     :     In person

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Boughton v Knight (1873) LR 3 P & D 64; [1861-73] All ER Rep 40
Brown v McEnroe (1890) 11 LR (NSW) Eq 134
Bull v Fulton (1942) 66 CLR 295
Burgess v Leech [2007] NSWSC 700
Crago v McIntyre [1976] NSWLR 729
Dew v Clarke (1826) 3 Add 79
Du Maurier v Wechsler [2001] NSWSC 4
Earl of Longford v Purdon (1877) 1 LR Ir 75
Gray v Hart [2012] NSWSC 1435
Hope v Campbell [1899] AC 1
In the Estate of Bohrmann, Caesar & Watmough v Bohrmann [1938] 1 All ER 271
King v Hudson [2009] NSWSC 1013
Landers v Landers (1914) 19 CLR 222
Morrison v McLeans Trustees 24 D 633
Murfett v Smith (1887) 12 PD 1116
Osborne v Smith (1960) 105 CLR 153
Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Smee v Smee (1879) 5 PD 84
Smith v Tebbitt (1867) LR 1 P&D 354
Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671
Timbury v Coffee (1941) 66 CLR 277
Wechsler v Du Maurier [2002] NSWCA 13
Wheatley v Edgar [2003] WASC 118
Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267
Worth v Clasohm (1952) 86 CLR 439

EM HEENAN J: Mrs Alexa Hoffman died on or about 26 August 2008 at her home at 80 Simper Street, Wembley. She was then aged 95 years, having been born on 17 November 1912. There is some uncertainty about the exact date of death because Mrs Hoffman had been living alone and her body was not found for some time. The State Coroner conducted an investigation without holding an inquest and, under s 26(1) of the Coroners Act 1996 (WA), found that death occurred on or about 26 August 2008 as a result of coronary atherosclerosis and that she had died by way of natural causes. Mrs Hoffman was then a widow, having married her husband, Thomas Jacob Hoffman, on 25 October 1941. Mr Hoffman died on 10 February 1976 and she never remarried.
Mrs Hoffman is survived by the three children of herself and her late husband. They are Valerie Saunders, who was born on 8 December 1946 and who is the twelfth defendant; Judith Margaret Hoffman, who was born on 12 June 1951 and who is the thirteenth defendant; and David Thomas Hoffman, who was born on 27 December 1956 and who is the sixth defendant.
The sixth defendant suffers from a number of chronic illnesses and disabilities, including epilepsy, and is in need of constant care. Orders have been made in respect of his estate and care by the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA). These include orders made on 6 November 2008 and 20 October 2010 which, in the latest revision, have appointed the Public Trustee as plenary administrator of his estate with all the powers and duties conferred by that Act. Accordingly, the Public Trustee as such administrator has instructed and retained counsel to appear on behalf of the sixth defendant.
The evidence shows that Mrs Hoffman made three wills, all of which have been tendered as exhibits in these proceedings. Each was made by an officer of the Public Trustee of Western Australia and each appointed the Public Trustee as sole executor. She also gave instructions for a fourth will but neglected over a long time ever to execute it. The first of these wills is dated 18 February 1976 on a pro forma will form of the Public Trustee, but with the name and address of the testatrix, her marital status as 'widow' and the dispositive provisions all in manuscript. It appears to have been duly executed and witnessed in the presence of two witnesses who were officers of the Public Trustee at the time. Having appointed the Public Trustee as the sole executor and trustee, Mrs Hoffman then provided that the whole of her estate should be left to David Thomas Hoffman absolutely. It is of some note that this will was made very shortly after the death of Mrs Hoffman's husband.
The second will, made on 14 June 1977, is entirely to the same effect yet the name and address of the testatrix, her status and the dispositive provisions in the will are all typewritten on to a Public Trustee will form which otherwise contains the date of execution and signatures of witnesses in manuscript. It is accepted that the will of 14 June 1977 revoked the earlier will of 18 February 1976. No party has sought to propound the will of 18 February 1976.
The second of these wills was made on 14 June 1977 and appointed the Public Trustee to be her sole executor and trustee and, subject to the payment of her just debts, funeral and testamentary expenses, left the whole of her estate both real and personal to her son, David Thomas Hoffman, absolutely. That will was prepared by an officer of the Public Trustee and the testament is duly executed in the presence of two attesting witnesses. But for the allegations of want of testamentary capacity made by the twelfth and thirteenth defendants in relation to this and the third will, there is no suggestion of want of formal validity of this testament.
The third will was made on 5 August 2001. This too was made by an officer of the Public Trustee and is regular on its face, duly executed by the deceased and witnessed by two witnesses. It revoked all previous wills and testamentary writings and appointed the Public Trustee to be the sole executor and trustee of the will of the deceased. It contained a series of small legacies as follows:
(a)$1,000 to the Royal Perth Hospital Medical Research Foundation Inc;
(b)$1,000 to the Uniting Church In Australia (Property Trust) WA upon trust to St Andrew's Church (St Georges Terrace, Perth, Western Australia);
(c)$500 to the Epilepsy Association Inc (WA);
(d)$500 to the Asthma Foundation of WA Inc;
(e)$500 to Jackie Simmons (current address Compton Durville, South Petherton, Somerset, England TA135 ES);
(f)$200 to her granddaughter Deborah Michelle Krasiniqui upon trust for her daughter Yasmin Krasiniqui if she survives the deceased and attains the age of 18 years.
Then followed the major dispositions of the deceased's estate:
4.SUBJECT TO the payment of my just debts, funeral and testamentary expenses I DEVISE and BEQUEATH the residue of my real and personal estate to my trustee upon trust of equal division per capita among those of my son DAVID THOMAS HOFFMAN and my grandchildren MALCOLM SAUNDERS, MICHAEL SAUNDERS, TRACEY LOUISE CLARKE, CHANTELLE MARIE CLARKE AND TENIELLE CHERIE CLARKE who survive me.
5.I DIRECT that the provisions of section 27 of the Wills Act 1970 shall not apply to this my Will.
6.I DECLARE the receipt of any person or persons appearing to my Trustee to be authorised to give receipts for the benefits passing to the organisation specified [legatees] of this my Will shall be a sufficient discharge to my Trustee and my Trustee shall not be liable to see to the application thereof.
7.I DIRECT that my granddaughter DEBORAH MICHELLE KRASINIQUI (or any other person or organisation holding the moneys UPON TRUST) may advance the whole or any part of the income or capital of the vested or contingent share of her daughter YASMIN KRASINIQUI under this my Will for the maintenance, education or advancement of her during her minority and may pay such moneys to the person having charge of her.
Again, the twelfth and thirteenth defendants contend that the deceased did not have requisite testamentary capacity when this third will was made but, otherwise, there is no issue about the formal validity or manner of execution of this testament.

The parties in these proceedings

The Public Trustee seeks a grant of probate in solemn form of law of the will dated 5 August 2001. Alternatively, in the event that, for any reason, that will is not proved, the plaintiff seeks a grant of probate in solemn form of law of the earlier will of 14 June 1977.
The sixth defendant supports these claims by the plaintiff and, alternatively, counterclaims that in the event of it being established that Mrs Hoffman died intestate that a grant of letters of administration in solemn form of law should be granted to the Public Trustee.
As already indicated, both the twelfth and thirteenth defendants oppose the applications for probate of either the will of 5 August 2001 or the will of 14 June 1977. They contend that their mother suffered from a longstanding mental illness or aberrations of thought which deprived her of the capacity to make proper judgments concerning the disposition of her estate and hence that she lacked testamentary capacity.
Each of the twelfth and thirteenth defendants contends that the court should find that their mother died intestate and that the distribution of her estate should be determined by s 14 of the Administration Act 1903 (WA). They are not agreed upon the choice of an administrator, each contending that she should be appointed as administratrix. The details of the reasons for that controversy and the suitability or otherwise of either the deceased's daughters to perform that role can be left until later.

Application for probate in the non-contentious jurisdiction

By motion dated 13 February 2009 the Public Trustee applied in the non-contentious jurisdiction for a grant of probate of the will dated 5 August 2001. That application was supported by an affidavit of Mr John Wilmott, a managing law clerk of the Public Trust Office, sworn 17 February 2009 which swore to the death of Mrs Hoffman; produced the alleged will of 5 August 2001, said to be the true and last will unrevoked and that there was no codicil thereto; that the will appointed the Public Trustee in the State of Western Australia as the sole executor, who desired to obtain probate and, if granted, would administer the estate according to law. This affidavit deposed to the execution of the will in the presence of the two named witnesses and that at the time the will was made the deceased was of the full age of 18 years and had not married since making the will, and that since the date of execution of the will had not ended a marriage on or after 9 February 2008 by divorce or annulment as defined by s 14A of the Wills Act 1970 (WA). The affidavit deposed that Mrs Hoffman had left movable and immovable property within Western Australia, the gross value of which was estimated to be $900,000.
In a separate statement of the assets and liabilities of the estate of the deceased it is shown that the principal asset is the house and land at 80 Simper Street, Wembley. There are also the contents of the home and personal effects of the deceased, including some furniture, but only of relatively modest values. It is likely that there may have been some appreciation in the value of the Simper Street property in the years since the death of the deceased but this is unlikely to be great. There are also some bank deposit and cash accounts in the name of the deceased and a liability for funeral expenses.
The application for probate of the will of 5 August 2001 in the non‑contentious jurisdiction did not proceed because a caveat had been lodged by Mrs Valerie Saunders dated 3 October 2008. No application has been made for the removal of that caveat but instead the plaintiff commenced these proceedings which, in turn, have been defended by the twelfth and thirteenth defendants and which have also resulted in the counterclaim, in the alternative, on behalf of the sixth defendant.

The extended Hoffman family

The deceased's three children, the twelfth, thirteenth and sixth defendants, have already been identified. The twelfth defendant, Mrs Saunders, was married but is divorced and living in England, where she has a senior position as a university lecturer. Her sister, the thirteenth defendant, was married but is now divorced and is living in Perth, where she is employed. The sixth defendant, David Thomas Hoffman, has never married, is living in care and has no children.
There are six grandchildren of the deceased. Malcolm John Saunders, born in 1973, and Michael Saunders, born 12 May 1978, are the two surviving children of Mrs Valerie Saunders. They are, respectively, the seventh and eighth defendants. The thirteenth defendant, Ms Judith Hoffman, has four children: Deborah Michelle Krasiniqui, born in August 1969, the fifth defendant; Tracey Louise Clarke, born 28 March 1979, the ninth defendant; Chantelle Marie Rouge, the tenth defendant; and Tenielle Cherie Clarke, born 29 October 1982, the eleventh defendant. Deborah Michelle Krasiniqui has a daughter, Yasmin Krasiniqui, born in July 1999. As already noted, Yasmin had been left a small legacy under the will of 5 August 2001, to be held for her on trust by her mother. Yasmin is not a party to these proceedings but her mother is, and that representation will bind her both personally and in her capacity as trustee for her daughter.
Also, as previously noted, the sixth defendant, David Thomas Hoffman, and five of the six grandchildren (excluding Deborah Michelle Krasiniqui) are the equal residuary beneficiaries of the whole of the estate of the deceased under the will of 5 August 2001. Neither the twelfth defendant nor the thirteenth defendant is a beneficiary under either of the two wills.

Roles of the various defendants

The only parties taking an active role in these proceedings are, of course, the plaintiff, the sixth defendant and the twelfth and thirteenth defendants. All but one of the legatees named in the will of 5 August 2001 are defendants in these proceedings. The exception is Ms Jackie Simmons of Somerset in England, to whom a legacy of $500 was provided by that testament. No explanation has been offered for her absence as a party named in the proceedings, nor has any point been taken by any party participating about the significance of her absence. Unless it could be established that she has notice of these proceedings, the result is that she would not be bound by them but as her interest is only small and likely to be greatly outweighed by the costs of attempting to join her at this stage and for her to obtain advice and/or representation, I consider that the action should proceed notwithstanding any risks associated with the possibility that she may not be bound by the outcome. All the other legatees, the charities, being the first to the fourth defendants inclusive, have been served but have filed notices that each will abide by the decision of the court. Similarly, notices of intention to abide by the decision of the court have been filed by the fifth defendant, Deborah Michelle Krasiniqui, and the ninth, tenth and eleventh defendants - that is, by all the children of Judith Hoffman. Similarly, notices of intention to abide by the decision of the court have also been given by the seventh and eighth defendants, Malcolm John Saunders and Michael Saunders, the children of Mrs Valerie Saunders. This accounts for all the parties named in the proceedings.

Nature of controversy over deceased's testamentary capacity

The basic contentions by the twelfth and thirteenth defendants which they relied upon to contend that their mother, at least since 1977 but in fact from much earlier, lacked testamentary capacity are that she had an extremely disturbed and aggressive personality. They contend that this caused her to be hostile, critical and extremely angry with members of her family but, in particular, with her husband and her two daughters. They assert that she had misplaced and unreasoning prejudices against them from a very early age, resulting in constant severe criticism, lack of approval, discouragement and various forms of undeserved punishment, to such a degree that within the family the usual maternal bonds of love and care appeared to be absent. This left the twelfth and thirteenth defendants to grow up in fear and unhappiness, bearing a ceaseless burden of criticism from their mother which eventually drove them out of the home. They contend that this quarrelsome, aggressive and disapproving attitude of the deceased was a constant feature of her behaviour and that it was displayed, without remission, to their father. They maintain that the deceased also quarrelled with acquaintances and neighbours; and that although she was an avid church-goer, she had a bitter disagreement with the pastor at her church, leading to an irreconcilable row.
They contend that her behaviour over a long period was so hostile and inappropriate that it necessarily connoted a deep underlying psychological or psychiatric disorder or, at the very least, such a distortion of her judgment and relationship with her children as to distort her capacity to make judgments and to recognise the claims and desserts of her daughters when it came to making testamentary dispositions.
The twelfth and thirteenth defendants also contend that over the years their mother was not adequately or correctly diagnosed by her medical attendants and that she was, in any event, secretive and failed to disclose to her doctor, in particular to Dr Phillip Melling, the severity of the distorted relationships within her family.

Regrettably, the relationship between the deceased and her two daughters was so bad that for many years neither daughter had anything to do with her mother and the mother made no attempt whatever to establish or re-establish contact with them. On rare occasions when there were meetings between one or other of the daughters and their mother, such as at the funeral of Mr Tom Hoffman in February 1976 and at the wedding of Judith Hoffman to her second husband, attempts at reconciliation became disastrous. There were tumultuous rows, shouting matches, refusals to speak and the door of the house at 80 Simper Street, Wembley, was closed in the face of Mrs Valerie Saunders when she returned from England for her father's funeral and attempted to visit her mother. To make matters worse, there was no reconciliation between either daughter and her mother before the mother's death. So great was the hostility that Ms Judith Hoffman refused to allow her children to visit their maternal grandmother when they were little and it was only in late adolescence that several of her daughters, in defiance of their mother's wishes, attempted to re-establish and successfully established a cordial relationship with their grandmother, of whom they now speak highly and with affection.
In the course of the trial there was evidence given from Dr Melling, who treated Mrs Alexa Hoffman as her attending general medical practitioner at regular intervals over the years before her death. His evidence will be examined more closely later but the basic effect of Dr Melling's evidence, who himself had specialist psychiatric training and qualifications and who had worked as a psychiatrist in the United Kingdom in the British Army before he came to Australia, was that she suffered from no mental disease or infirmity and that there was no reason to suggest that she lacked testamentary capacity at any material time. He nevertheless acknowledged that she displayed a lot of hostility to people around her; that she was very set in her ways; was frequently angry and that there had been a tremendous amount of conflict in her life. Dr Melling regarded her as having a paranoid personality disorder resulting in the display of hostility and aggression to others because of her mistaken appreciation of them but said that she was not delusional. According to him, she was a person of very fixed beliefs but these were not necessarily paranoid. He said that she was very prone to complain, was a very testy person and showed hostility towards her disabled son, David, his carers, everyone she came across and the minister at her local church. Nevertheless, he regarded her as capable of looking after herself, making sensible financial decisions and caring for David. He saw her regularly at intervals of about six to eight weeks and was aware of her refusal to speak to family members and that she was not pleasantly disposed to her daughters. However, he emphatically rejected any suggestion that she had a psychosis or displayed psychotic behaviour and said that she was able to communicate clearly, was in touch with reality, and could cope with the requirements of her lifestyle.

Counterclaims

Neither the twelfth nor thirteenth defendant is legally represented in these proceedings. Each has been attempting, with manifest difficulties, as the history of pre-trial procedures demonstrates, to cope with the requirements of filing pleadings, affidavits and in complying with various directions which have been made in the course of the management of this case. Despite some manifest inadequacies in the steps which each has taken, the position of these defendants is, basically, quite clear.
Neither Mrs Saunders nor Ms Judith Hoffman has formally filed any counterclaim in the proceedings, yet the defence filed by Mrs Saunders expressly seeks that the application by the plaintiff for proof of either the 2001 will or the 1977 will should be dismissed and that the court should declare that Mrs Alexa Hoffman died intestate and that she, Mrs Saunders, should be appointed as administratrix in the intestacy. The defence of Ms Judith Hoffman does not go this far but her role throughout the case and at trial has also been to assert that her mother died intestate and that there should be a grant of letters of administration to a suitable administrator.
As the trial progressed, there were attempts at agreement between the twelfth and thirteenth defendants as to who that administrator might be, but no such agreement was reached and Ms Judith Hoffman contended that, in the event of an intestacy, she should be appointed administratrix. As earlier noted, the sixth defendant has counterclaimed that, in the event of an intestacy, the Public Trustee should be appointed administrator.
Despite the shortcomings of the pleadings of the twelfth and thirteenth defendants in this regard, the case proceeded on the clear understanding by the other parties represented that Mrs Saunders and Ms Judith Hoffman were each, in substance, contending that their mother died intestate and that one or other of them should be appointed administratrix upon that intestacy. It was convenient, therefore, to proceed on that footing. The trial was conducted on the basis that there were, in effect, if not in form, counterclaims by the two adult daughters of the deceased to that effect. I shall approach the resolution of proceedings on that same basis.

History of known testamentary dispositions

The first of the three wills is that dated 18 February 1976. The evidence establishes that the late Mrs Hoffman attended at the office of the Public Trustee at 565 Hay Street, Perth, on that day and saw a trust officer, Mr D J McCarthy. She there completed a pro forma instruction sheet containing requisite details for the preparation of a will. This was done in her own handwriting. She identified her son, David Thomas Hoffman, as the sole beneficiary and also identified her two daughters, Valerie Saunders and Judith Margaret Clarke (as the thirteenth defendant then was) as children not included in the proposed will, stating that the reasons for exclusion of them were:
Son is an invalid pensioner and would be more in need of estate than two daughters who are married and quite comfortable.
The will was then prepared on a Public Trustee form and, as already described, the dispositive provisions were in manuscript. It was executed by Mrs Hoffman on the same day and witnessed by Mr McCarthy and another witness, whose name appears to be G Sheridan.
Mr D J McCarthy swore an affidavit which was tendered as exhibit 10 and he also attended in person and was cross-examined. At the time of giving evidence he was a retired public servant but had been employed as a wills officer at the Public Trust Office in Perth for five years, during the period March 1974 to May 1979. He confirmed that he had met the deceased, Mrs Alexa Hoffman, at the Public Trustee's office on 18 February 1976 when she called to provide instructions for her will. He recorded these on the private and confidential form already mentioned, on which he also placed his own signature. He recalled Mrs Hoffman mentioning at the time that her son suffered from a disability in part due to her having given birth to him when she was aged about 45 years. In his affidavit Mr McCarthy deposed that it was his standard procedure to assess a person's testamentary capacity as best he could and to refuse to make a will for a person he considered did not exhibit a sound mind, memory or understanding or to require the client to produce a certificate from a medical practitioner confirming capacity if he were in doubt. He did not entertain any such doubt when dealing with Mrs Hoffman and he prepared a will in accordance with her instructions which she executed on 14 June 1977. This, of course, is a reference to the second will and in his affidavit Mr McCarthy made no reference to the first will dated 18 February 1976 which bears his signature as one of two witnesses. The instruction which he mentions is itself an exhibit in these proceedings (exhibit 11) and has this notation on the third page in the top right-hand corner in Mr McCarthy's handwriting:
Mrs H rang. Will call in on Friday … 6/4/75
The missing part of the note is illegible.
In the course of his cross-examination Mr McCarthy had his attention drawn to the manuscript 1976 will, then to his manuscript note on the instruction sheet, exhibit 11, and gave his explanation for those matters. According to him, it was the practice in the Public Trust Office, if a client was insistent or demanding, to write up a manuscript will immediately which would be called a 'temporary will' and have it executed and witnessed so that it became fully effective, but then to prepare a typewritten will in accordance with the instructions for execution at a later date. This is how the will of 18 February 1976, exhibit 12, came to be executed. As for the handwritten notation that Mrs Hoffman would call in 'next Friday', dated 14 April 1975, Mr McCarthy said that the notation must certainly have been a mistake and that he wrote the figure '75' for the year when it should have been '76'. According to him, the note recalled a telephone conversation with Mrs Hoffman in which he made an arrangement for her to come in and execute the typewritten copy of the will on that date in April 1976 but that, in fact, she never came. It was not until 14 June 1977 that she did come to the Public Trust Office and executed the will of that date which had been prepared on the basis of the original instructions given on 18 February 1976. Mr McCarthy was quite emphatic that there was no second meeting with Mrs Hoffman until the execution of the typewritten will on 14 June 1977 and that there had been no second set of instructions for the preparation of that will.
Also in the course of his cross-examination Mr McCarthy was asked by Mrs Saunders whether or not the deceased had disclosed to him or mentioned in any way at the meeting of 18 February 1976 that she had only recently, in a matter of days, been widowed. Mr McCarthy said that no mention of this was made by Mrs Hoffman at the time and that he simply accepted at face value without question that she was a widow. He saw no reason to enquire into the matter and rejected suggestions put in questions by Mrs Saunders that the deceased had not then known what testamentary disposition she wished to make or that she was confused and agitated because of her recent bereavement (of which Mr McCarthy had no knowledge).
There is no evidence from or about the attesting witnesses or any other evidence apart from the document itself of due execution of the will of 18 February 1976 but, of course, no party is seeking to propound that will.
Exhibit 3 is an affidavit of Julie Claire Rule sworn 11 February 2013. Mrs Rule swears that she is one of the subscribing witnesses of the will of 14 June 1977 and deposes that Mrs Hoffman executed the will on the day of the date it bears by signing her name at the foot or end thereof as appears on the document in the presence of herself and of the second subscribing witness, Helena Henrietta Froudist (formerly Walsh, formerly Santi) both witnesses being present at the same time as the execution by the testator and who thereupon attested and subscribed the will in the presence of the testator. I accept this evidence as establishing due execution by the deceased of the will of 14 June 1977 and due attestation of her execution by the two subscribing witnesses as required by s 8 of the Wills Act.
In an affidavit sworn 12 April 2013 (exhibit 4) Mr Sean William Conlon, Director of Trustee Services of the Public Trustee in and for the State of Western Australia, deposes to evidence in support of the plaintiff's claim, in the alternative, for probate of the will of the deceased dated 14 June 1977 in the event that the Public Trustee's application for proof of the 2001 will does not result in a grant. Mr Conlon identifies the 1997 will and the witnesses to it and deposes to the fact that the testator had attained the age of 18 years prior to the date of execution of that will, did not marry after the will was executed, and was not married when it was executed. He also deposed that the deceased had not since the date of execution of that will on 14 June 1977 ended a marriage by divorce or annulment and that that will was not revoked by any later will other than the 2001 will which the Public Trustee is, as his major case, propounding. In this affidavit Mr Conlon deposed to the value of the deceased's property within Western Australia, as comprising movable property of a gross value of $30,000 and immovable property of $890,000. He also deposed that the Public Trustee would administer the estate of the deceased under the will of 14 June 1977 if a grant of probate were made of that will and that there were no other applications for probate other than the applications for proof of the 2001 will.

The will of 5 August 2001

The instructions for this will were taken by Mr Jeffrey Alan McKenzie, now a retired State public servant but in 2001 a wills officer in the employment of the Public Trust Office of Western Australia. Mr McKenzie has sworn an affidavit on 8 April 2013, exhibit 9, deposing to the circumstances leading to the preparation and execution of this will. He also gave oral evidence at the trial and was cross-examined.
Mr McKenzie deposed that he has no independent recollection of the circumstances described in his affidavit but is reliant upon the records kept on the file which he prepared at the Public Trust Office and the associated wills diary. From these sources he deposes that he visited Mrs Hoffman at her home in Wembley on 26 July 2001 to take instructions for her will. He asked the deceased a series of questions relating to her assets, family members, intended beneficiaries and instructions, recording her answers on that form. He then prepared a will in accordance with those instructions, which was later executed on 5 August 2001.
These instructions recorded the names of persons whom the deceased desired to benefit under her will, as being her son, David Thomas Hoffman, two Saunders grandchildren and three of the Clarke granddaughters. The deceased also mentioned the charities, her sister, Jackie Simmons, Yasmin Krasiniqui and Deborah Michelle Krasiniqui, and then itemised the proposed dispositions. The form also records the location (bank) where her security documents were kept and then confirms that there were persons omitted from the proposed dispositions who might have a claim under the Family Provision Act 1972 (WA). Mr McKenzie's notes in this regard are, in substance, that Mrs Hoffman has two daughters but had no contact with them for years. As for Deborah Michelle Krasiniqui, the fourth granddaughter, the notes record that she 'is OK financially'. As for her son, David Thomas Hoffman, the note is that he is an invalid pensioner and has asthma, is an epileptic and that Mrs Hoffman believes that his sixth share would be sufficient.
There is also an affidavit (exhibit 7) sworn 15 November 2011 by Mr Lloyd Vaughan Tabuteau, one of the two subscribing witnesses to the will of 5 August 2001. Mr Tabuteau, whose occupation at the time the will was executed and when making the affidavit is that of carer, deposed that he was one of the two subscribing witnesses to that will and that the other witness was Tania Louise Tabuteau. In the affidavit Mr Tabuteau deposes that Mrs Hoffman executed the will on the day it bears by signing her name at the foot or end thereof in the presence of himself and the other subscribing witness, both of whom were present at the same time, and that they thereupon attested and subscribed the will in the presence of the testator. I accept this evidence as establishing due execution and attestation of the will of 5 August 2001 and there was, in fact, no challenge to evidence of compliance with these formal requirements.

A later unexecuted will

The trust officer, Mr McKenzie, in his affidavit (exhibit 9) went on to depose that he made a later visit to Mrs Hoffman at her home in Wembley on 10 August 2006 and again took instructions from her for the preparation of another will. These instructions were recorded on a will instructions form, a copy of which is annexed to Mr McKenzie's affidavit. He deposes to asking her again about her assets, family members, intended beneficiaries and instructions for her will and recorded her answers by hand on that form, which was then countersigned by Mrs Hoffman. Mr McKenzie explains that it was his standard procedure during any such interview to assess a person's testamentary capacity as best he could and to refuse to make a will for a person he considered did not exhibit a sound mind, memory or understanding or to require the client to produce a certificate from a medical practitioner confirming capacity if he were in doubt. He had no record of any doubt or query about Mrs Hoffman's testamentary capacity when taking instructions for her will either in 2001 or in 2006.
Mr McKenzie then proceeded to draft a new will in accordance with instructions received from Mrs Hoffman on 10 August 2006. He wrote to her by letter dated 23 August 2006, advising that the draft will had been prepared and asking for confirmation of one of the beneficiaries' addresses before posting the draft will to her for execution. There was no response to that letter nor any other contact from Mrs Hoffman with Mr McKenzie prior to her death in August 2008. The draft will prepared by Mr McKenzie was, therefore, never executed. No attempt has been made by any person to prove either that document or the instructions alone or together as an informal will under Pt X of the Wills Act.
The plan, structure and dispositions of the draft will prepared by Mr McKenzie in 2006 and the instructions recorded by him on the occasion of his visit to the deceased at 80 Simper Street on 10 August 2006 are very similar to the will of 5 August 2001. However, some of the legacies were increased, there was a new specific legacy for the fourth granddaughter, Deborah Michelle Krasiniqui, and two further small legacies to additional charities. Again the Public Trustee was proposed as the sole executor and trustee and the residue estate was left equally between the same six residuary beneficiaries, namely David Thomas Hoffman, the two Saunders grandsons and the same three of the four Clarke granddaughters.
This evidence establishes that over the period from February 1976 until 10 August 2006 Mrs Hoffman was seen by two experienced trust officers of the Public Trustee's Office to whom she gave instructions for the preparation of four wills, namely the will of 18 February 1976, the will of 14 June 1977 and the will of 5 August 2001, together with instructions in 2006 for a further will which, although drafted, was never executed. On each occasion when instructions were given by Mrs Hoffman to the trust officer concerned attended to the question of whether or not Mrs Hoffman evidently displayed testamentary capacity and had no doubt that she did. On none of these occasions did the trust officer consider that there was any need or indication to pursue that matter or to seek medical or other evidence of capacity. Mrs Hoffman identified the person or persons whom she desired to benefit under each will she was then proposing and identified, to the satisfaction of the trust officer, the persons who might be regarded as having some form of claim on her estate. She gave reasons which, leaving aside the question of whether or not they were justified, were entirely plausible as to why her two daughters were being omitted from any benefit under the will.
The structure of each will was, having regard to her family circumstances, the product of obvious thought and attention. The first of the wills, when the disabled David Thomas Hoffman was still young and her daughters were married, provided that the sixth defendant should be the sole beneficiary. It cannot be said that that was, at that time, unreasonable or fanciful. That was the approach taken in the will of 1976 and the will of 1977.

Fourteen years later, when the will of August 2001 was made, there were a series of legacies introduced but not so great in aggregate as to constitute a major reduction in the net value of the estate. The residuary estate was then divided equally between her son, David, and five of her six grandchildren, with a small legacy for the child of the other grandchild. By this means five-sixths of the residuary estate went to Mrs Hoffman's daughters' children, although she left nothing to either daughter. By this means the families of the two daughters were, substantially, recognised and provided for. Having regard to the fact that by then the relationship between the mother and the two daughters had broken down and there had been little harmonious contact between the mother and her daughters for very many years, that structure is not irrational or fanciful even if it may be regarded as uncompromising.
For these reasons, therefore, I do not consider that it can be maintained that either of the wills of 14 June 1977 or 6 August 2001 is irrational or fanciful in its terms or context or suggests irrationality or lack of capacity from its very terms. For any testator it is obviously a decision of considerable gravity to dispose of one's estate without making any provision for two of one's three children. Such a disposition may give rise to a question as to why the testator chose to make such provisions but if there is a reason such as a breakdown in the relationship between parent and child of very long standing, such a result is not irrational nor does it suggest want of testamentary capacity although, understandably, those affected may search for a reason why the deceased chose to make such provisions. In doing so, they may give attention to whether or not the testator was acting under the influence of some delusion, unreasoning prejudice or obsession which distorted her judgment to such an extent to deprive her of testamentary capacity.
Prejudice and unjustified hostility by a testatrix towards her daughters will not itself demonstrate lack of testamentary capacity even if the consequences are that those daughters have been treated harshly or unjustifiably. The essential question is whether or not the deceased at the time of making the will in question was possessed of a proper appreciation of her circumstances, estate and persons who may have deserving claims on her bounty and was able to make choices as to the dispositions, not necessarily just dispositions, of her own property.
To address these issues it is necessary to examine the context of the family relations over a long period and, importantly, the medical evidence available about the state of mind and condition of the deceased at the time the wills were made.
Michael Adrian Saunders is the eighth defendant in the action, the younger son of the twelfth defendant. His affidavit of 18 March 2013 is exhibit 6. He gave evidence in support of the plaintiff's case and was cross-examined. He is the brother of Malcolm John Saunders, the older son of the twelfth defendant. He deposes that he does not have any specific memories of his grandmother before he was four years of age and between the ages of four and eight he, his older brother and mother and father had emigrated to the United Kingdom. He has little if any memory of his relationship with his grandmother before his family's departure to Britain. While living in Britain the twelfth defendant and her husband separated, and when Michael Saunders was about eight, that is in 1986, his father brought him and his brother, Malcolm, back to Perth to live. Their mother remained in the United Kingdom. Michael's relationship with his grandmother was re-established by his father upon their return.
Michael Saunders deposed that his experience of childhood with his grandmother was that she treated him well and was a loving, doting grandmother. He, his brother and father would often go to visit her and have dinner at her house and she would visit their house and would give them gifts, soft drinks and chocolate. According to Michael, the deceased looked after him and his brother from time to time and was always interested in what they were doing. While living at home Michael and the family would see the deceased once every couple of weeks and Michael has fond memories of those experiences. When he turned about 12 years of age, that is in mid-1990, he began to see more of his grandmother as he started surfing and she would often take him to the beach. During his adult years Michael's contact with his grandmother diminished slightly but he did make time to catch up with her, apart from a period of about two years in his mid-twenties when he was away working. Even then he would see her about every three months or so. The relationship was happy and she would enquire from him whether he had heard from his mother or aunt, the twelfth and thirteenth defendants.
In Michael Saunders' recollection the deceased was extremely loving and helpful to his Uncle David and did everything she could do to make sure that he was well looked after. In Michael Saunders' view, his Uncle David looked well cared for and was neatly presented. Michael Saunders deposed that his grandmother's house was always clean and well ordered. He described his grandmother's personality as being very headstrong, feisty and opinionated. He deposed that she was not aggressive but was very stern and knew what she wanted and he never had any doubt that she was in control of her decisions. He had a good relationship with the deceased up until her death and visited her about once a month, usually at her home. On some occasions when he visited her friends from the local community group would call in. Michael Saunders last saw his grandmother about two months before she died. In his recollection, she appeared tired but everything else about her was the same and that she was her usual, alert, attentive self.
Regrettably, there is now no contact between Michael Saunders and his mother, the twelfth defendant. He deposed that he had little contact with his mother since he, his brother and father left the United Kingdom when he was aged eight. He also deposes that as a child, after the family's return to Australia, he and his brother would fly to the United Kingdom to spend two weeks with their mother over the Christmas-New Year period, doing so on two or three occasions. He recalls those as unpleasant experiences, finding it difficult to be with his mother, who he described as being emotionally taunting of them and disparaging of his father. He deposes that when he turned 18 he received a letter from his mother, who was living in the United Kingdom at the time, with words to the effect that he was no longer her son. Michael has had hardly any contact with his mother since he turned 18 and only heard from her after Mrs Alexa Hoffman died. Another letter from his mother was received by Michael after they both attended mediation in this case in July of 2001, but the letter was antagonistic and he did not respond to it.
At the trial both the twelfth and the thirteenth defendants in succession cross-examined Michael Saunders. The spectacle of a mother, and then an aunt, cross-examining her son and nephew and attempting to suggest in various ways that he was untruthful was sad and unedifying. It revealed the complete absence of any relationship between Michael Saunders on the one hand and his mother and aunt on the other and that Michael Saunders had entirely broken off contact and had no wish to re-establish any connection. Michael Saunders rejected the propositions put to him in the cross-examination and maintained the evidence which he had given in his affidavit. I found him to be careful, thoughtful and credible, maintaining his demeanour and dignity in extremely trying circumstances. He appeared to me to be a person of character and I can see no reason to doubt or reject any of his testimony.
Tracey Louise Clarke, the second daughter of Judith Hoffman and a granddaughter of the deceased, also gave evidence for the plaintiff. Her affidavit of 7 August 2013 became exhibit 14. In this Ms Clarke deposed that she is one of four daughters of the thirteenth defendant. Her sister, Deborah Michelle Krasiniqui, is the oldest child of that family. Tracey Clarke deposed that during her early childhood she had little contact with her grandmother and did not see her from about the age of 12 years onwards for some time. Before then, she was taken by her mother and sisters to her grandmother's house on occasion, where the girls would play outside but were not permitted inside the house because they might make a mess. Her grandmother used to visit their family home and would bring small presents, but sometimes the visits were unpleasant because the deceased would make the children stay in the garden and weed the lawn.
Much later, about 14 or 15 years ago, when Tracey must have been aged about 17 or 18 years, she re-established contact with her grandmother but did not see her very often. By 2001 Tracey was visiting her grandmother, who was then still living independently. Her uncle David Thomas Hoffman was with her sometimes on the weekends and over Christmas. Tracey describes her relationship with her grandmother up until the date of her death as good. Over the last years she would visit her once a week and would give occasional help with the housework on these visits, something that her grandmother did not much like because of her fierce independence. This ceased when Tracey was pregnant with her daughter in 2007, when she was unable to visit or help as often as she wished. However, she continued to visit and to converse with Mrs Alexa Hoffman on a number of things and speak about food, the garden, politics and money. According to Tracey, her grandmother habitually complained about how expensive things had become and how prices had increased, but she would also talk about the church, in which she was heavily involved. Tracey deposed that she would describe her grandmother as cynical but 'on the ball' because of her ability to talk about topical political issues during visits and her reliability in remembering birthdays.
Tracey deposed that she attended a birthday party given for her grandmother when she turned either 90 or 93 and on that occasion saw a birthday card which had been written to the deceased by her own mother, that is, the thirteenth defendant, which Tracey read. It contained offensive and insulting remarks which are to be found at paragraph 19 of exhibit 14, which do not reflect well on the thirteenth defendant. This prompted a brief discussion between Tracey and her grandmother, who remarked that she would send the card to the Public Trustee where the will was held because she believed that the twelfth and thirteenth defendants would cause a problem when she died. There is no evidence that this ever occurred and the card has not been produced, but the incident is evidence of hostility by the thirteenth defendant towards the deceased and of Mrs Hoffman's awareness of her daughter's attitude. According to Tracey, in her discussions with her grandmother sometimes the topic of her mother would arise, but Tracey tried to avoid those conversations because she did not have a good relationship with her mother and did not want to discuss her. She also deposed that as an adult she had a positive relationship with her grandmother.
In her affidavit Tracey Clarke also gives some details of her own immediate family relationship with her mother. The thirteenth defendant and her husband divorced when Tracey was about 4 1/2 years of age and from then on she lived with her mother. This continued until she was about 15 years of age because, according to Tracey, her mother kicked her out of home after an argument, as a result of which she went to live with her father. She then deposes that over the years since she went to live with her father she received 'poison pen' letters from her mother, the broad details of which are set out in exhibit 14. On the positive side, however, Tracey deposes that sometimes her mother would write nice letters to her and send her birthday cards with expressions of love and affection. According to Tracey, at the date of trial she had not seen her mother for about two years and on the last occasion when they had met her mother left because they were not able to resolve their differences.
She too was cross-examined, first by the twelfth defendant and then by her mother, the thirteenth defendant, but nothing in the cross‑examination detracted from the evidence which Tracey Clarke had given in her affidavit, nor did it cause me to entertain any doubt about the truthfulness or reliability of that evidence.
Another of the daughters of the thirteenth defendant, Tenielle Cherie Brock (nee Clarke) also gave evidence for the plaintiff. She is the eleventh defendant and has married since first named as eleventh defendant. In her affidavit of 26 March 2013 (exhibit 15) she deposes that she supports the application for the Public Trustee to obtain probate of the will of Mrs Alexa Hoffman dated 5 August 2001.
Tenielle Brock deposed that she did not remember having much of a relationship with her grandmother, Mrs Alexa Hoffman, as a child because she did not see her. After she obtained a motor car at the age of about 17 or 18 she visited occasionally, without her mother knowing and created her own relationship with the deceased. Until Tenielle's 19th birthday when she obtained her own car contact with her grandmother was difficult because she was still living with her mother. So she only saw her grandmother occasionally before the 2001 will was made. There is no evidence that Tenielle had any knowledge of the existence of that will or its contents.
Tenielle describes her grandmother as being fine - that is, independent, without need of assistance, and capable of doing things for herself, such as her own shopping and cleaning. At their meetings Tenielle describes her grandmother as talking about how expensive things were and enquiring about what was going on in her own life and what was happening in the news. As the visits became more frequent and regular, Tenielle observed that Mrs Hoffman doted on her Uncle David, although she cannot remember if he was living with Mrs Hoffman at that time, but she does remember him being there sometimes when she visited. These visits, which appear to have been made more or less weekly, continued until Mrs Alexa Hoffman died. Sometimes Tenielle would help her clean and just be of assistance, but she emphasises that that was not needed. According to Tenielle, Mrs Hoffman was still driving her car, doing her own food shopping and attending her own doctor's appointments without asking for help right up until her death. She did her own gardening. Sometimes Tenielle would go shopping with her, but only as company. Tenielle would also help clean out the house occasionally but again in order to be of assistance without it being essential. Tenielle says that as far as she knew Mrs Hoffman paid her own bills and did all the shopping for herself and David.
Tenielle Brock confirms the absence of any ordinary relationship between her mother, the thirteenth defendant, and the deceased. She deposes that as long as she could remember the thirteenth defendant would say that her grandmother was horrible and kept her sisters and herself away from their grandmother. She described an incident when she was in primary school of her grandmother coming to their house and leaving some small confectionary and home-made jam as presents at the door. She told her mother that her grandmother was at the door but she was told to leave the room, and the next thing she remembered was the door shutting and her grandmother gone, with the shopping and presents left on the doorstep. When she was aged 14 she went to her cousin Michael's wedding with her mother. Mrs Alexa Hoffman was there but the thirteenth defendant told Tenielle that she was not permitted to talk to her and that she did not want anything to do with her. Tenielle also makes reference to an occasion when Mrs Hoffman, then in her nineties, showed her a card sent to her from the thirteenth defendant with cruel and insulting messages inside it, and that it had clearly made her grandmother upset.
Tenielle also describes a difficult and fluctuating relationship with her own mother, the thirteenth defendant, which she describes as having occurred throughout much of her own adult life. When the thirteenth defendant found out that Tenielle had secretly been seeing her grandmother she said to Tenielle that she was betraying her by doing so. Regrettably, Tenielle and her mother have not spoken for the last four years and the relationship is described as an on and off one since Tenielle left home at the age of 19. There was a turbulent episode when Tenielle left home to go and stay with her father. She had to call the police to assist in retrieving her belongings from her mother's house. After Tenielle had her first child there were some meetings between herself and her mother which she resented because her mother made a series of very disparaging remarks about her father and told her that she should not let her father babysit the child. Some time later, in about 2009, following disagreement between the eleventh defendant and her mother, the thirteenth defendant, over the care for the new baby, Ms Judith Hoffman called at her home and left a letter addressed to her husband with gifts for her daughter. Tenielle was later shown the letter, which contained words to the effect that her daughter and her husband were welcome to see her mother but that Tenielle was not invited. Tenielle concludes her affidavit by deposing that her mother constantly said bad things to her about her father and about other people, including her grandmother. The relationship seems to have been put beyond repair by a letter written by the thirteenth defendant to Tenielle in November 2008 in which the thirteenth defendant said that Tenielle was no longer family and should not approach her if she were to see her in public.
Tenielle Brock was cross-examined, but only by the thirteenth defendant. In the course of this cross-examination Tenielle Brock said that she knew that her mother was very much opposed to her grandmother, Mrs Alexa Hoffman, and did not want her children to have anything to do with her but, as she grew into her teenage years, she wanted to meet her grandmother and form an impression of her and, if possible, establish a friendly relationship because she, herself, despite her mother's views, believed in the importance of family relationships. She stressed that she was not motivated to visit her grandmother because of money or any expectation of being left benefits in her will and that, as far as she was aware, her grandmother intended leaving her property to charity. She stressed that she regarded it as important that an adolescent child should be able to make his or her own decisions about relationships and connections with relatives and it was for that reason that she visited her grandmother. Tenielle again said that her grandmother was nice, 'just like a regular nanna to me'. In conclusion, she described her grandmother as being, as far as she could tell, of sound mind, able to recollect previous conversations, knowing what her granddaughter had been doing and not forgetful, and quite independent and self-reliant.

Pleadings

The essential defence of each of the twelfth and thirteenth defendants is that their mother lacked testamentary capacity at the times that the wills of 14 June 1977 and 5 August 2001 were made. However, by their pleading, and certainly by their submissions and evidence, the nature of these contentions was amplified. By her defence Mrs Saunders alleged that all testamentary writings of her late mother were invalid because she lacked testamentary capacity due to some mental health problem. She referred to the four conditions demonstrating testamentary capacity mentioned in Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ) and then pleaded specifically that at all material times Mrs Alexa Hoffman had no understanding of the effect of her actions on others; that she did not understand the moral or legal claims of her three children on the estate; and, thirdly, that she suffered from some disorder of the mind that affected her ability to make rational decisions regarding the disposal of her property. The defence further alleged that the deceased's disorder of mind was a lifelong condition, present at least from early adulthood until death.

The thirteenth defendant's defence does not comply fully with the rules of pleading but it nevertheless serves to identify similar allegations. Ms Judith Margaret Hoffman contends that her mother was born with some restriction of mental capacity which was concealed or denied within her family, which resulted in rigidity of thought, but identifying a cognitive dysfunction. She also alleged that the deceased throughout her life received support from her brother and her own mother and sisters, but alone was vulnerable to outside influences. She alleges that at the time of the 1977 will Mrs Alexa Hoffman had just lost her husband and that she was fixated on denigrating her husband's reputation and had no idea what to include in a will. By contrast, she alleges that there were marked differences in the 2001 will, including as it did numerous beneficiaries and relegating the disposition to her son, David Thomas Hoffman, to an equal one-sixth share of the residuary estate, along with five of the six grandchildren, whereas under the 1977 will he had been the sole beneficiary. She alleges that this reduction in the provision made for David in the 2001 will, when he was a disabled pensioner with greater needs than any of the grandchildren, reveals a lack of appreciation by the deceased of the needs and consequent claims of David upon the estate which, in turn, is a sign of want of testamentary capacity.
She also alleges that the omission of the fourth granddaughter from the 2001 will is also a sign of a want of recognition for those who have a moral claim or need to participate in the estate because Deborah Michelle Krasiniqui, the fifth defendant, was then and had for some time been in much greater need of financial assistance than the other grandchildren, having a two-year-old daughter of her own and struggling in a destructive marriage. Her defence concludes with a plea that the deceased did not have testamentary capacity due to multiple unidentified psychological conditions that rendered testamentary capacity unattainable without the aid of a third party. Quite what is meant by the reference to some potential role of a third party was left unexplained and I think that I should disregard that and treat the plea as one that because of multiple unidentified psychological conditions the deceased did not have the requisite capacity.
Mrs Saunders enlarged on these contentions in her opening submissions when she contended that the nature of her case is that her mother lacked testamentary capacity because she was not able to understand her relationship with her two daughters, which was an abusive one from the day they were born, as distinct from the relationship which she had with her son. Mrs Saunders submitted that the deceased was not able to give full weight to her moral and legal responsibilities towards herself and her sister as a result of some sort of mental disorder. This was, in due course, developed to include the existence of a long-term history of imbalance and hostility by the deceased towards the twelfth and thirteenth defendants and the contention that the deceased had an unreasoning and chronic lack of perspective together with hostility towards both her daughters, suggestive of an imbalance of some kind or another in her ability to make judgments and form attachments.
It is crucial to a full appreciation of the contentions of both the twelfth and thirteenth defendants that the allegations of lack of testamentary capacity do not depend upon, although they may include, the assertion that there was some form of mental disease or disorder but, whether this is established or not, the essence of the defence is that for that or other reasons the deceased did not possess a proper capacity to make responsible decisions about the disposition of her estate or recognise the needs and claims of people who may be regarded as deserving provision in her will.

Medical evidence

The plaintiff adduced evidence from Dr Philip Melling, now retired, the attending general medical practitioner for Mrs Alexa Hoffman, over the period from 1981 until June 2008 – that is, until only about two months before Mrs Hoffman's death. Dr Melling (whose name is misspelt throughout most of the transcript as Dr Mellon) took up general medical practice in Floreat in 1979 and it was in the course of that practice that he met Mrs Alexa Hoffman in 1981. She and her son, David, were patients of his until his retirement.
Before that Dr Melling had very broad and extensive medical training and experience. He completed his undergraduate medical qualifications at Durham University in England between 1962 and 1967 and first became registered in England in 1967. He completed a 12-month internship at a hospital doing six months in general medicine and six months in surgery, and then entered the British Army for a period of five years. For the first two of those years he was regimental medical officer and then senior medical officer for the British zone for the United Nations in Cyprus. For the remaining three years of his period in the army he worked in psychiatry. During the first and second years of that three-year period he completed his Diploma in Psychological Medicine (DPM) and then became a psychiatric specialist from the third year primarily treating acute psychiatric problems. At that time the DPM was the major post‑graduate qualification in psychiatry in the United Kingdom.
After his five years in the army Dr Melling left and worked in general practice in England for 12 months, during 1973 and 1974. He then left England, emigrating to Australia, going first to Albany to join a practice which was looking for a doctor with interest in psychiatry to work sessional clinics in the prison system as well as be a partner in a busy country practice. He worked in that capacity in the Albany practice for five years and then sat for the fellowship in the Australian College of General Practice, which he was awarded in 1977. He continued in Albany until 1979, when he moved to Perth to take up the general practice in Floreat, where he worked as a general practitioner with an interest in psychiatry and surgery.
After meeting Mrs Alexa Hoffman in 1981 she became Dr Melling's patient, visiting the practice about every six or eight weeks either for her medical needs or for the medical needs of her son David. According to Dr Melling, David had disabilities with high dependency needs and Mrs Alexa Hoffman was responsible for his care. In his view, she was very kind and considerate when it came to David and was always available for him.
In his affidavit Dr Melling deposed that during the time that he knew Mrs Alexa Hoffman he found her to be mildly verbally aggressive, cantankerous and abrasive. She was unhappy without being clinically depressed and he felt that she had more problems than the average person. Dr Melling said that her life revolved around her son David and his treatment and that she was extremely caring and protective of him and keen to care for him at home if possible.
In his affidavit Dr Melling deposed that during the 27 or so years Mrs Hoffman was his patient she did not require psychiatric treatment. He said that he would diagnose her as having a personality disorder but that she was not psychotic. Her personality disorder did not require treatment and he said that it is well accepted that personality disorders are not readily amenable to treatment once the patient has passed the age of 25.
He recalled that Mrs Alexa Hoffman was still driving at the age of 80 years, having passed her driving test. He deposed that she always presented as if she looked after herself. She was neat, tidy, clean and well presented. He had occasion to do home visits from time to time and he noted that she and the house were neat and tidy. There was no smell and neither she nor the house was unclean. According to Dr Melling, Mrs Hoffman displayed no traits that led him to assess that she had an abnormal view of the world. He said that she had a strong personality and was always in control.
Dr Melling referred to a letter which he wrote at Mrs Hoffman's request to the Public Trustee dated 3 August 2001, which is annexure PM1 to his affidavit (exhibit 8). This letter, dated only two days before the will of 5 August 2001, reads as follows:
Public Trustee

565 Hay Street

PERTH WA
Dear Sir/Madam
Re Mrs Alexa Hoffman, 80 Simper Street, Wembley, 6018 DOB 17.11.12
Mrs Hoffman has been a patient of mine since 1981 and I have seen her on a regular basis.
She informed me that recently she has changed her will and that she suspected that following her death that the will will be challenged by some of her relatives.
When I saw her on 28th July 2001, she asked if I would write to you confirming that she was in a competent state of mind to determine how her estate should be managed.
There is certainly no question at all that she was competent to make decisions about the disposal of her assets and properties, and she did not exhibit the slightest signs of any intellectual or mental incapacity whatsoever.
Yours faithfully
Dr P Melling
In his affidavit Dr Melling explains how Mrs Hoffman came to see him on 3 August 2001 to advise that she had completed a will and asked that he provide a letter as to her testamentary capacity at the time. He says that she indicated to him that she thought that someone would challenge her will. He stated that she did not present with any paranoia. When he saw her, she did not display any paranoid or delusional thoughts of a psychotic nature. Dr Melling also deposed that when he saw her he informally performed a mini-mental exam and she was oriented as to time and place. He says that at no time was his suspicion aroused that she was not functioning as before. He got to know her over many years rather than by one appointment for 10 minutes and there was nothing in her behaviour on 3 August 2011 in his opinion to suggest a reduction in her mental functioning.
Dr Melling also deposed that he knew that Mrs Hoffman had daughters but said that she never spoke much about them. He said that her nature and personality were such that she was a closed book. Her attitude towards her daughters was hostile and dismissive but this was consistent from when Dr Melling first saw her in 1981 until his retirement in 2008. He deposed that it was also consistent with the way he saw her treat others. That is, he had seen her treat others and verbalise her treatment of others to him as hostile and dismissive.
With regard to Mrs Alexa Hoffman's personality generally, Dr Melling deposed that he never knew her to have any incorrect thoughts that were not amenable to reason. He said the she thought that people did not care about her son, David, but they did. It was just not in the way she expected. She did not display fixed incorrect beliefs. There was no evidence to him that she had difficulty paying bills or handling her accounts. Sometimes, in general practice, if he had referred a patient to hospital and their accounts had not been paid there would be follow-up with his practice but this did not occur in Mrs Hoffman's case.
Dr Melling also deposed that Mrs Hoffman kept all of her appointments and was always on time. He remarked that she was well oriented in time, place and person. She had her own car and looked after it. She lived independently at home and did not require any care or services. He recalled that on one occasion she had a leg ulcer. He offered her Silver Chain Nursing assistance at home but she refused. He stated that she was a very independent person. He concluded by saying that there was no doubt in his mind that on every occasion he saw Mrs Hoffman she was of sound mind, memory and understanding, including at the time of the visit of 3 August 2001.
In the course of these proceedings the twelfth defendant, Mrs Saunders, engaged a psychiatrist in the United Kingdom, Professor Hirsch, to prepare a report based on the account of Mrs Alexa Hoffman's behaviour which had been described to him by the twelfth defendant. Professor Hirsch had, of course, never seen or treated Mrs Alexa Hoffman. Dr Hirsch's report was disclosed in the course of these proceedings. His initial report had been shown to Dr Melling, who was invited to comment upon it, and he did so in his affidavit, exhibit 8. When addressing Dr Hirsch's report Dr Melling said that he agreed that Mrs Alexa Hoffman had an abnormal personality but said that he would not describe her as having a paranoid psychotic illness. In that regard, he deposed that to have a true paranoid illness the sufferer has a psychotic illness which merits medical treatment. A paranoid psychotic psychiatric illness means a person believes something which is false and which cannot be corrected by reason. In his view, Mrs Hoffman did not display those symptoms.
Dr Melling went on to depose that Mrs Hoffman expressed a feeling that people were being hostile towards her and, as such, displayed vexatiousness. She would constantly complain if something happened not to her liking. For example, she became annoyed with the sheltered workshop when they sent her son, David, home when he became aggressive at work. She was often upset with the disability carers. Things that annoyed her became magnified and she had a short fuse. However, he would not categorise any of those behaviours as paranoid. Similarly, Dr Melling deposed that he would not characterise her abnormal personality as having any impact on her ability to understand what assets were in her estate or to whom she should give consideration in her will on her death.
Dr Melling was called as a witness for the plaintiff at the trial and he confirmed the contents of his affidavit. He was cross-examined by both the twelfth and the thirteenth defendants. In cross-examination Dr Melling agreed that he had never had access to the previous medical records of Mrs Alexa Hoffman when she was a patient of her previous general practitioners, Dr John Donaldson or Dr Savage. When asked about his letter of 3 August 2001 Dr Melling acknowledged that any reader was intended to understand that Mrs Hoffman possessed testamentary capacity and was himself quite convinced that she did. He acknowledged that he did not contact any relative to verify Mrs Hoffman's state of mind, saying that he saw no need to do so.
On being asked whether he was aware that Mrs Hoffman had excluded both her daughters from both her wills, he said that he was not aware of the content of her will. He was aware that there was friction within her family but made no specific enquiries as to the nature of that friction as it was not volunteered by his patient. When asked whether he administered any structured interviews or tests to reach his opinion, Dr Melling said that he had the advantage of knowing Mrs Hoffman over years involving some 150 consultations and that that experience was far more appropriate than any single mini-mental state examination. He was then asked a series of questions about the behaviour of Mrs Hoffman when her daughters were infant children which implied that she was abusive and violent to them, that her then treating general medical practitioner came to the house to investigate the treatment of the children with a view to considering whether the daughters should be put into care, and that for a time a social worker visited the home. Dr Melling had no knowledge of any of those allegations, nor of an alleged diagnosis of anxiety and depression, or of an attempt by Judith to overdose on her mother's sleeping pills in 1965, resulting in investigation by a psychiatrist at Royal Perth Hospital.
A series of other allegations concerning the deceased's behaviour and attitude were put to Dr Melling but he disclaimed any knowledge of them. He was also questioned extensively about symptoms and conditions which might lead to a diagnosis of a psychosis but he disagreed that Mrs Alexa Hoffman ever displayed any psychotic symptoms. As a result, his qualifications to reach such a conclusion or recognise such a condition were challenged by Mrs Saunders. I do not accept that challenge and consider that Dr Melling is well qualified to express opinions on this and related subjects.
Dr Melling was then asked about the alleged behaviour of Mrs Alexa Hoffman following a diagnosis of breast cancer, hospital admission and surgery involving a single mastectomy. He was not aware of the details of any of the matters put to him in this regard but was then asked about Mrs Hoffman's alleged hostility to the surgeon and other medical staff who had been involved in her treatment on this occasion, and of conflicts which she had with David. Dr Melling's reply was:
There was a tremendous amount of conflict in Mrs Hoffman's life - in the management of her life, with David, with all the specialists with which she was involved. She was very, very antagonistic and at times – I'm not going to use the word 'psychosis'. She wasn't paranoid psychotic, but she certainly had paranoid ideas about people around her and a certain degree of hostility.
And who was that hostility directed to? Who was the hostility - - - - ?

---Anyone with whom she came into contact.
This led on to answers given in cross-examination that Dr Melling was aware that she had conflicts with the minister at her church. In response to an allegation that in her later years when driving her car Mrs Hoffman was prone to collide with a post or other obstacle in her driveway, Dr Melling disclaimed any knowledge of that but said that over the very many visits which she made to his consulting rooms she used to drive herself there, sometimes with David, and would park in the carpark, which was fairly narrow, and that he was never aware that she had any problems or accidents. He enlarged by saying that she always appeared to be co-ordinated when she came to the surgery, always seemed to carry herself properly and carried things in balance perfectly well. He never saw her unsteady on her feet and found it difficult to believe that she could regularly have reversed into bollards in her driveway. He said that he found that assertion a most unlikely possibility. He had no recollection of her mentioning her husband at any stage, nor referring to any medical history of either of her daughters.
Dr Melling was asked to enlarge on his reference to 'paranoid personality disorder' and did so, saying that a person with a paranoid personality disorder is someone who has or experiences hostility and aggression towards themselves when, perhaps, it is not intended. He said that this was not a delusional state but a misinterpretation of what happens in their surroundings. By contrast, a paranoid schizophrenic has delusions which are not amenable to reason and these are not apparent to the normal person. Mrs Saunders then put to Dr Melling, as a postulate, that her mother on occasions said that she hated all men, that sex was dirty and that she was good simply because she had been to church and that she had this belief that her husband was bad and that her daughters were bad, and that these were fixed and incorrigible beliefs. His response to this was he accepted that Mrs Hoffman may well have had such beliefs but that that did not necessarily reflect any mental illness. When asked whether or not it was normal to regard a two-year-old child as a bad person, he said that that did not make the behaviour psychotic. Dr Melling acknowledged that Mrs Hoffman was a very complaining person and rejected the suggestion that it was one of the indicators of Asperger's Syndrome.
It is important here to stress that allegations of behaviour attributed to Mrs Hoffman were assertions put by the cross-examiner and that they had not independently been proved.
I accept Dr Melling as a completely truthful and reliable witness, who gave evidence frankly and fully and at all points attempted to assist the court in appreciating and understanding Mrs Hoffman's history and behaviours. He had, of course, only known Mrs Hoffman in the later years of her life but had been her regular GP for something in the order of 27 years. I accept his account of her behaviour and personality, so far as his description of her as having personality traits not amounting to a psychosis or any mental disease, as being well founded. I also accept that he was well placed to give his opinion about his view of her mental capacity over her later years and, in particular, around the time when the will of 5 August 2001 was made.

The medical evidence in this case satisfies me that the deceased, Mrs Alexa Hoffman, was not at any material time suffering under any insane or other delusions. None of the medical witnesses suggested that she was deluded or had ever suffered from delusions. All were agreed that she demonstrated a paranoid personality disorder. Dr Melling did not regard this as any form of mental illness, although Dr Series did. The question was not directly addressed by Professor Hirsch and because he was not available for cross-examination it was not raised with him. Without necessarily involving specific agreement with Dr Melling on this point, Professor Hirsch did express general agreement with Dr Melling's conclusions. Of course, both Mrs Saunders and Ms Judith Hoffman, particularly the latter, have set to make a case that their mother suffered from a mental retardation or disease from a very early age and that this was manifest during their infancy and childhoods and continued, albeit concealed and denied by their mother until her death.
However, I cannot make any such finding. It is not supported by the evidence or endorsed by any of the medical practitioners and there is no evidence of any psychiatric admission or treatment of Mrs Alexa Hoffman at any time during her life, notwithstanding the evidence that various members of the family accused her of psychiatric illness on occasion. In the midst of all the argument, hostility and antipathy existing in the household which has been described by Mrs Saunders, I do not regard those demands made in the midst of, or perhaps after, some particularly grievous family altercation as representing any sound basis for concluding that she had a mental disease or psychiatric condition.
Nevertheless, the picture emerging from the evidence is that she was insensitive, hostile, aggressive and harsh with the daughters and that she adopted an uncompromising attitude of criticism towards them which resulted in a childhood full of isolation, fear and want of affection. They contend that this behaviour and attitude led Mrs Hoffman to reach unjustified opinions, attitudes or conclusions about their worthlessness, lack of character or merit, leading to their mother, in effect, rejecting them and treating them as worthless and undeserving. It is this attitude which they contend amounted to the equivalent of an unjustified delusion and which their mother failed ever to correct. In turn, they contend that this is responsible for their omission from the will and reveals such a degree of misjudgment, antipathy and lack of balance as to connote some deep‑seated lack of ability to recognise and comprehend their worth, amounting to a lack of relevant capacity.
This family background is one of prolonged dissention, leading to entrenched hostility and antipathy but, at least over the last 25 years or so of her life, it is evident that Mrs Alexa Hoffman functioned adequately and independently in the community, keeping herself in a clean, orderly and regular fashion, maintaining her house, her financial commitments, and taking a keen interest in the care and condition of her disabled son, David. To other people, such as Dr Melling and her grandchildren and other members of the extended family, she was regarded as a pleasant, if feisty, old lady and she took steps to establish and maintain affectionate relationships with her grandchildren, which they reciprocated. The twelfth and thirteenth defendants paint this as an example of her manipulation and dissembling and maintain that despite these appearances she persevered in an implacable hostility towards them.
Breakdowns in relationships within families are always tragic and a breakdown between a parent and child leading to lifelong antagonisms is one of the severest examples of this. The individuals on either side of the hostile chasm inevitably look for reasons to explain a situation which causes so much hurt and resentment and which, despite their own animus, they usually deplore. There is in these circumstances every temptation and inclination to attribute blame and fault entirely to the other side. Sometimes that may be deserved, but after such a long time and in the absence of one of the principal protagonists, it is often impossible to tell whether or not that is, in fact, the case.
It cannot be overlooked that both Mrs Saunders and Ms Judith Hoffman themselves left their mother in acrimonious circumstances and have kept themselves apart almost ever since, although they contend that attempts at reconciliations or re-establishment of some semblance of cordiality have been rebuffed by their mother's actions. Each sought to keep her own children away from their grandmother and became angry and disapproving when the children, in their later years, sought to establish connection and reach their own conclusion about their grandmother's character. Both daughters have had very little contact with their mother for a long time and had had no contact with her for years before the will of 2001 was made.
Mrs Alexa Hoffman had grounds to conclude that her daughters had become irretrievably estranged from her and it could not be said that a conclusion formed by her to that effect was evidently delusional or without plausible justification. Those persons who dealt with Mrs Hoffman at the time the 1977 and 2001 wills were being made and, in particular, when the 2001 will was made, were the trust officers from the Public Trustee and Dr Melling. None had an interest in the will and each was distant from the family and its hostilities. All three of these persons believed that Mrs Hoffman understood the meaning and effect of a will, was able to give cogent instructions as to her testamentary wishes, and recognised the persons who may be regarded as deserving attention when disposing of her property. She specifically identified to the trust officers her two daughters as persons who might be regarded as having a claim on her estate and received advice from the trust officers about the possibility that they may make claims under the Family Provision Act if left out of any benefit under the will, yet she made her decision and adhered to her instructions. It cannot be concluded that she was oblivious to the need to consider whether or not disposition should be made in favour of either or both daughters.
The question is whether or not her decision to exclude both daughters from the will was the result of some form of delusion, lack of soundness of mind, or any other reason which deprived her of testamentary capacity in making those wills.
It is appropriate to examine in some detail Easter v Griffith, a decision of the New South Wales Court of Appeal comprised by Gleeson CJ, Kirby P and Handley JA, in which, with Kirby P dissenting, the decision of Santow J holding that wills made by a testatrix between 1984 and 1989 were invalid on the basis of lack of testamentary capacity was upheld.
In Easter v Griffith the situation was that the testatrix died a widow at the age of 84 years, leaving a son, her only child. Over a period of five years she had made five wills, each of which excluded her son as a beneficiary. The last of these wills was made four years before her death. Under an earlier will made 27 years before her death she had made her son her principal beneficiary. It was found that the deceased had been disappointed in her son and in his choice of career. She disapproved of him joining a religious order and, notwithstanding that he left that order before taking final vows and then qualified as a schoolteacher, she was disappointed in his choice of career, hoping that he would have become a doctor or a lawyer. Her son lived with his mother after his father had died for a period of 14 years, but there was evidence that the testatrix had been difficult to live with during that time. The son had to leave home because of her conduct towards him finally, because of an episode of bizarre conduct by his mother after her dog died in which she entered his room in the early hours of the morning with a knife, screaming that she hated him and telling him to get out. He left and never returned. After this, they never spoke again. There were allegations that the deceased was schizophrenic, but no such diagnosis had ever been made. Despite the strange relationship between mother and son, the testatrix presented to the world as an intelligent and rational woman. The question for determination by the court was whether, on that evidence, the finding should only be that the deceased had shown harsh judgment and undeserved treatment of her son or whether, instead, it showed a lack of capacity to comprehend and appreciate the claim which her son had upon her. At first instance, Santow J found that there was a plausible case that the deceased had rejected her son 'for no rational ground and was unable to consider and give effect to claims upon her bounty of her only child'. His Honour was unable to conclude that the deceased's rejection of her son was on any basis which would connote insanity, but he was prepared to find a delusion of a fixed and incorrigible false belief which she could not be reasoned out of.
The crucial finding by the trial judge was that the executor seeking to prove one of the later wills had not discharged the onus of establishing testamentary capacity and, instead, administration of the earlier will of 1966 making the son the principal beneficiary was ordered. From that decision an appeal was taken to the Court of Appeal which decided, by majority that the decision of the trial judge should stand. The majority held that the issue was whether or not the deceased had made a harsh and unreasonable judgment of the respondent's character but was nevertheless of sound mind or whether, alternatively, her judgment of her son was so affected that she lacked the mental capacity to comprehend and appreciate the claims upon her bounty. The majority upheld the finding that there was a plausible case that she had been unable to consider and give effect to the claims upon her bounty of her son and that, as this had not been rebutted, proof of capacity at the time of making the later wills had not been established, the onus of proof in this regard resting upon the propounder of those wills. Gleeson CJ and Handley JA also held that it was not necessary for evidence to be adduced relating to capacity under the rubric of delusion, but that there was evidence, unrebutted, pointing towards the conclusion that there was a mental disturbance rather than a judgment which could merely be characterised as unfair.
One feature of the case, significant in the present litigation, is that the late Mrs Griffith was an intelligent, articulate and forceful woman, with a number of eccentric opinions, but well read, proficient in languages, and apparently perfectly capable to make her own decisions but having a history of anger and aggression towards, and final rejection of, her son. Apart from the fact of final separation between mother and son followed by a mutual lack of contact over the last 10 years of her life, there was nothing to suggest that the character or conduct of her son was reprehensible, unfilial or deserving of censure or disapproval. The period during which he was undergoing religious training, however, produced a profound effect upon his mother, reflecting her bitter disappointment in his choice so that on the occasional home visits which he was permitted to make his mother's hostility towards his vocation resulted in the episodes being extremely distressing and after some time they ceased. He was found to be a dutiful and loving son, attentive to his mother's needs and anxious to please her, but she resented the relationship which he had established with a lady friend. There was evidence of extraordinary and alarming behaviour on the part of Mrs Griffith over a lengthy period showing that she was given to quarrelling with neighbours over trivial incidents and engaged in apparently groundless outbursts of anger and resentment towards her son. Her behaviour in the house, particularly at night, was bizarre and eccentric. All this culminated in the incident in 1983 when Mrs Griffith burst into her son's room in the middle of the night after her dog died, wielding a knife and screaming that she hated him and telling him to get out. As mentioned, he left and they never spoke again. Oddly, by contrast, to the rest of the world and to her friends and acquaintances, she expressed pride in her son and presented a picture of a loving mother. At the trial the son adduced evidence from a psychiatrist, who had never met the deceased but, based on information provided about her and her behaviour and upon reading her extensive diary notes, the psychiatrist formed the conclusion that the deceased was suffering from a paranoid personality disorder which manifested itself in delusions about her son and, in particular, in the delusion that he did not care for her, that he was a threat to her, and that he suffered from serious character defects. These things, according to the psychiatrist, caused her to hate her son, who was by any reasonable objective standards, dutiful and affectionate.
The contrary argument was that the explanation for the disinheritance was simply that the relationship between mother and son had so completely broken down that they had not spoken to one another during the last 10 years of her life and, regardless of the merits or the reasons for this estrangement, her decision to disinherit him, even if harsh, was not an unreasonable one, nor did it connote want of soundness of mind. A psychiatrist called for the proponent of the later wills, who also had never seen or treated Mrs Griffith, expressed the opinion that there was no ground for concluding that she suffered from a paranoid personality disorder or any form of delusion. Consequently, the issue of difficulty was to distinguish between a harsh, unreasonable judgment of character which is not, on that account alone, inconsistent with a sound disposing mind, and a morbid aberration which so affects a testatrix's judgment of a person with a natural claim on her bounty as to warrant the conclusion that she lacked the capacity to make a valid will. For examples of his latter category see Boughton v Knight (69) and the observations of Holland J in Crago v McIntyre [1976] NSWLR 729, 740 -741.
At page 290 Gleeson CJ refers to the difficulty in distinguishing whether or not a testator has testamentary capacity when presenting to the world an appearance of intelligence and rationality when the choice has to be made as to whether or not the deceased had formed an aversion to a child so unfounded and unreasoned that it evidences an unsoundness of mind as opposed to an attitude of mere antipathy, however unreasonable. His Honour then referred to a series of decisions which establish that mental infirmity of a kind which denies testamentary capacity does not necessarily involve insane delusions but, nevertheless, the courts frequently discuss the subject in a manner which tends to focus upon the presence of delusions as the indicator of mental disorder. Reference was made to Smith v Tebbitt (1867) LR 1 P&D 354, 398 at 402 - 403, but the Chief Justice then observed that there is a degree of artificiality in seeking to force all manifestations of 'insanity' under the rubric of delusion before saying that the critical question in such a case concerns mental capacity to comprehend and appreciate the claims upon one's bounty and again, at page 292, Gleeson CJ emphasised that in determining the issue of testamentary capacity it was not necessary for the evidence relied upon to raise a doubt about the presence of this requirement to do so under the rubric of delusion. Handley JA agreed with the judgment of Gleeson CJ. For further observations to this effect see Burgess v Leech [2007] NSWSC 700 [24] (Bryson J).
The dissenting judgment of Kirby P contains a detailed review of the authorities but his Honour's conclusion was that Mrs Griffith's will was not in any sense irrational. He based his conclusion on the fact that despite, or perhaps because of, the complete breakdown in contact between mother and son 10 years before her death, the son made no attempt to repair the relationship, to show forgiveness or to seek reconciliation and that, from the mother's point of view, all the appearances were that he had just cut her out of his life. His Honour gave considerable significance to the evidence of friends and acquaintances of the deceased, who described her as intelligent and reasonable in conduct and behaviour, although she could be combative and sometimes difficult.
The similarities between this case and Easter v Griffith are obvious. Although there was no finding of mental disorder or illness in Easter v Griffith and doubt was expressed by the trial judge about the observation of one of the psychiatrists that Mrs Griffith showed a paranoid personality complex, the evidence in this case from all three doctors is that the late Mrs Alexa Hoffman did display features of paranoid personality, although, as mentioned before, Dr Melling did not regard that as any form of mental illness. In Griffith the testatrix identified some cause for her resentment and criticism of her son, namely, his attempt to pursue a religious vocation and then her disappointment at him adopting a non‑professional career, notwithstanding that she herself had been a teacher.
The period of estrangement in the Griffith case, while lasting about 10 years, was towards the end of the testatrix's life, whereas in the present case the estrangement between Mrs Saunders and her sister, Ms Judith Hoffman, on the one hand, and their mother began in mid-childhood and appears to have been virtually complete when each left home and was, accordingly, of a much longer duration. In the Griffith case the later testamentary dispositions made by Mrs Griffith were to disinherit her son entirely and leave her estate to charity, whereas in the present case, while the twelfth and thirteenth defendants have been omitted from any benefit under each of Mrs Hoffman's wills, the will of 2001 makes provision for five of their six grandchildren so, in effect, including their descendants as beneficiaries in place of their mothers (except for the fifth defendant, who received nothing under the will of 2001, although was recognised in instructions for the will given in 2006, which was never executed). There may be separate reasons for the deceased's treatment of the fifth defendant which need not be pursued but which could lead to a conclusion that while her omission was rather harsh and severe, it did not imply or connote want of capacity.
It is critical to recognise that, when it comes to determinations of testamentary capacity, there is a fundamental distinction between mere prejudice or antipathy, even unreasonable antipathy, and an antipathy arising from a disorder of the mind. The form of false belief or delusion which will deprive a testator of capacity is a reference to a delusion or a belief not capable of rational explanation or to a false and unreasonable belief that the testator cannot be reasoned out of, so being a false belief that is a product of a disorder of the mind: see Gray v Hart [2012] NSWSC 1435 [314] – [317] (White J); see also Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, [106] (Powell J) when his Honour, citing from Smith v Tebbitt (402 - 403) where Sir J P Wilde (as Lord Penzance then was) said:
It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and they may therefore be called 'delusive'. But what I mean to convey on this head is this, that the question of insanity and the question of 'delusions' is really one and the same - that the only delusions which prove insanity are insane delusions - and that the broad inquiry into mental health or disease cannot, in all cases, be either narrowed or determined by any previous or substituted inquiry into the existence of what are called 'delusions'.

That is an observation which, though made in the light of medical knowledge existing more than 100 years ago, at least in 1998, was still considered to be apposite.
Any resolution of issues which have arisen in this case must give recognition to what, under our law, is an established principle of freedom of testamentary disposition, although that freedom not being quite as absolute as may be supposed. An examination of the approach of Australian law to freedom of testamentary disposition is set out by Kirby J in Easter v Griffith (294) where his Honour observes that the basic principle of testamentary freedom is, in a sense, an attribute of economic liberty, before going on to observe:
It is reflected in the expectation of testators that, ordinarily their wills will be observed unless the law, for very good reason, provides otherwise. I remind myself of the judicial warning against the anger of the shades of disappointed testators, who await judges on the other side of the Styx, to take vengeance on those who have unduly interfered with their testamentary provisions.
His Honour did go on to say:
The freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one's own property. As one can be in one's lifetime so, by law, a testator can be at death.
Although his Honour immediately stressed that persons within a class of eligible applicants who are left without adequate provision for proper maintenance, education or advancement in life may apply for relief under legislation in all Australian jurisdictions equivalent to the Family Provision Act. Consequently, unfairness, severity or other forms of harshness or disregard by a testator in the making of a provision or in the failure to make provision for a close relative or a person who might be expected to receive some disposition from the estate, does not invalidate a will or establish want of testamentary capacity. There have been many harsh and unreasonable wills made and sons, daughters, wives and others have been excluded from dispositions at the choice of a testator without resulting in invalidity. But the exclusion of a close relative, such as a son or a daughter, from benefit under a will can usually be regarded as a mark of severe disapproval by the testator. Sometimes there may be cause for this, even if not expressed. Even if the cause may be prejudice or pique or some personal whim that an inheritance is socially undesirable, that will not of itself establish want of testamentary capacity. Nevertheless, it may raise a question as to the reasoning, or lack of reasoning, behind such a choice and that may lead on to discovery, from the will itself, or from some other evidence possibly reaching far back in time, that the testator has harboured a long-standing sense of disapproval or prejudice towards the excluded relative. Even that will not be sufficient to establish want of testamentary capacity unless it can be shown that the deceased, because of want of proper understanding however caused, whether because of a mental condition, including a deluded mind, that is, an unreasoning attitude towards the individual, has failed to appreciate and give due consideration to claims which that person may deserve when the testator is determining the distribution of his property.
As the authorities demonstrate, the line between harsh and unreasonable judgment, which is nevertheless the product of a sound mind on the one hand, and a judgment so affected by unreason and prejudice indicating a lack of mental capacity to comprehend and appreciate the claims of a person who may deserve benefit can be hard to draw. Each case must depend upon its own facts, bearing in mind always that the onus of proof of capacity rests upon the propounder of the testament. Even so, as decided in Worth v Clasohm, once a full examination of the evidence is made a residual doubt is not enough to defeat a claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of the deceased, who possessed sound mind, memory and understanding at the time of its execution.

Resolution

In all the wills made by the late Mrs Alexa Hoffman since that of February 1976 the plans of disposition of her estate have been framed in terms which are themselves logically coherent, having regard to the family circumstances. The wills of 1976 and 1977 which leave the whole of her estate to her son, David, were made at the time when her husband had very recently died and when David was aged only 20 or 21 years, disabled, incapable of employment and totally dependent. At those dates, the twelfth and thirteenth defendants were both married and, whatever the strengths or fragilities of those marriages may have been, their positions were significantly less fragile or vulnerable than their brother's. In those circumstances, it made sense for Mrs Hoffman to leave the whole of her estate for the benefit of David because of the obvious need for a lifetime's care for him should she die soon afterwards. By 2001 the situation had changed to a degree. David was in care, although he visited home from time to time. He was then aged 45. By that date the estrangement between Mrs Alexa Hoffman and her two daughters was almost absolute and irretrievable. Whatever may have been the reasons for that estrangement, and whatever were the attitudes which resulted in its continuation, the situation was that the last two occasions when the deceased saw her daughter Mrs Valerie Saunders, had been at the funeral of Mr Thomas Hoffman in 1976 and the visit to Oxford in 1988. Her last contact with Ms Judith Hoffman had been in about 1997.
The 2001 will, after comparatively small legacies to charities, divided the residuary estate equally between five of her six grandchildren. I have already pointed out that this plan of disposition recognises the lines of family descent through the deceased's daughters even though it excludes them and, having regard to the circumstances, reveals thought and balance and a desire to recognise five of the six children of her daughters.
It seems to be the case that Mrs Alexa Hoffman had fixed and unforgiving beliefs and a long-standing disapproval of her two daughters, but I am not persuaded that this connotes delusive thinking, a failure to recognise her daughters as persons deserving of participation in the distribution of her estate after death, or any unsoundness of mind. It is certainly a very marked, conspicuous omission but there were reasons why Mrs Alexa Hoffman could have chosen to exclude her daughters having regard to the long-standing mutual hostility which existed by her to them and clearly by them to her. Sad and tragic though this is, it does not establish want of capacity.
The long history of harsh behaviour by Mrs Hoffman towards her two daughters as described in the evidence of Mrs Saunders relates to events which took place before about 1966, that is, in the distant past. Whatever the twelfth and thirteenth defendants may attribute to the cause of their mother's behaviour during that time, there is no evidence of any diagnosis of unsoundness of mind, or mental disease or infirmity.
Accepting all of Mrs Saunders' evidence, one can conclude that at various times different members of the family, including her late father, suspected that Mrs Hoffman may have been suffering from some form of mental disorder, but that was never investigated, let alone confirmed. The evidence from those who had dealings with her at the time each of the wills was made and the evidence of her attending general medical practitioner, Dr Melling, who had seen her at regular intervals of the period of 25 years, almost up to her death, is emphatic that she appeared to be a person well able to make decisions and conscious of the significance and importance of a will and able to identify the persons whom she might be expected to consider when disposing of her property.
Although Mrs Hoffman appears to have had a personality of a vexatious kind, making her prone to quarrel with others and to be a person of fixed opinions, there is no evidence of irrationality on her behalf or inability to cope with the demands of living an independent life, running her finances and a home. The criticisms made of the deceased by her daughters are not shared by the three grandchildren who gave evidence, although I realise that none of them had been born at the time during which the twelfth and thirteenth defendants contend that their mother's unjustified attitudes towards them were formed and demonstrated.
The family history is replete with a series of ordeals and difficulties and episodes of great unpleasantness. However, I do not consider that this is sufficient to prevent a finding that Mrs Alexa Hoffman was possessed of testamentary capacity at the time she made each of the three wills which have been referred to in the evidence. In reaching that conclusion, I do so in full recognition that the onus of proof for establishing capacity is on the plaintiff. I am satisfied that this is discharged by the manner and form of the wills themselves and their execution, the evidence of the trust officers who obtained instructions for the preparation of the wills, the evidence of Dr Melling and of the grandchildren who were meeting with Mrs Alexa Hoffman over the 10 years or so before her death.
It follows from this conclusion that I am satisfied that the will of 5 August 2001 was validly made and so revoked any former will and, in particular, the will of 14 June 1977. In consequence, I am satisfied that the court should order and declare that a grant of probate of the will of 5 August 2001 be made to the plaintiff. The form of the grant can be settled by a probate registrar. The caveat against any grant lodged by the twelfth defendant will be discharged and the counterclaims of the sixth, twelfth and thirteenth defendant should be dismissed. There should be liberty to apply in relation to the form of the grant.
All parties will be given an opportunity to make submissions, including written submissions, if so desired, in relation to costs.