The Public Trustee v Stretch

[2002] WASC 147

THE PUBLIC TRUSTEE -v- STRETCH & ORS [2002] WASC 147

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 147
Case No:	CIV:1687/1994	Heard:	2 & 3 APRIL 2002
Coram:	MURRAY J	Delivered:	13/06/02
No of pages:	21	Judgment Part:	1 of 1
Result:	Declaration made as to validity of will of deceased dated 6 December 1988
Category:	A
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Parties:	THE PUBLIC TRUSTEE RICHARD ANTHONY STRETCH AMY MARGARET STRETCH CLAIRE BRONWYN STRETCH GWYNETH STRETCH STEWART LYNDON STRETCH DAVID ANTHONY STRETCH STEPHEN ANDREW STRETCH NICHOLAS PETER STRETCH ELIZABETH CAROLYN ASHER RENEE KATHRYN ASHER JENNIFER MARIAN STRETCH KATHRINE MARY STRETCH ESTHER ELIZABETH HANKINSON JARED ALEXANDER LEWIS DAVID WYNDHAM LEWIS STEPHEN JOHN LEWIS PHILLIP GRAHAM LEWIS SAMUEL FAULKNER LUKE FALKNER
Catchwords:	Wills Testamentary capacity Claim and counterclaim to prove wills in solemn form Principles discussed
Legislation:	Nil
Case References:	Banks v Goodfellow (1870) LR 5 QB 549 Boughton v Knight (1873) LR 3 P & D 64 Boyse v Rossborough (1857) 6 HLC 2 Bull v Fulton (1942) 66 CLR 295 In the Will of Wilson (1897) 23 VLR 197 Timbury v Coffee (1941) 66 CLR 277 WA Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 Worth v Clasohm (1952) 86 CLR 439 Bailey v Bailey (1924) 34 CLR 558 Nock v Austin (1918) 25 CLR 519

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THE PUBLIC TRUSTEE -v- STRETCH & ORS [2002] WASC 147 CORAM : MURRAY J HEARD : 2 & 3 APRIL 2002 DELIVERED : 13 JUNE 2002 FILE NO/S : CIV 1687 of 1994 BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

RICHARD ANTHONY STRETCH
AMY MARGARET STRETCH
CLAIRE BRONWYN STRETCH
GWYNETH STRETCH
STEWART LYNDON STRETCH
DAVID ANTHONY STRETCH
STEPHEN ANDREW STRETCH
NICHOLAS PETER STRETCH
ELIZABETH CAROLYN ASHER
RENEE KATHRYN ASHER
JENNIFER MARIAN STRETCH
KATHRINE MARY STRETCH
ESTHER ELIZABETH HANKINSON
JARED ALEXANDER LEWIS
DAVID WYNDHAM LEWIS
STEPHEN JOHN LEWIS
PHILLIP GRAHAM LEWIS
SAMUEL FAULKNER
LUKE FALKNER
Defendants

(Page 2)

<Party Name1="THE PUBLIC TRUSTEE", Type1="Plaintiff", Name2="RICHARD ANTHONY STRETCH", Type2="Defendants", Name3="AMY MARGARET STRETCH", Type3="Defendants", Name4="CLAIRE BRONWYN STRETCH", Type4="Defendants", Name5="GWYNETH STRETCH", Type5="Defendants", Name6="STEWART LYNDON STRETCH", Type6="Defendants", Name7="DAVID ANTHONY STRETCH", Type7="Defendants", Name8="STEPHEN ANDREW STRETCH", Type8="Defendants", Name9="NICHOLAS PETER STRETCH", Type9="Defendants", Name10="ELIZABETH CAROLYN ASHER", Type10="Defendants", Name11="RENEE KATHRYN ASHER", Type11="Defendants", Name12="JENNIFER MARIAN STRETCH", Type12="Defendants", Name13="KATHRINE MARY STRETCH", Type13="Defendants", Name14="ESTHER ELIZABETH HANKINSON", Type14="Defendants", Name15="JARED ALEXANDER LEWIS", Type15="Defendants", Name16="DAVID WYNDHAM LEWIS", Type16="Defendants", Name17="STEPHEN JOHN LEWIS", Type17="Defendants", Name18="PHILLIP GRAHAM LEWIS", Type18="Defendants", Name19="SAMUEL FAULKNER", Type19="Defendants", Name20="LUKE FALKNER", Type20="Defendants",>

Catchwords:

Wills - Testamentary capacity - Claim and counterclaim to prove wills in solemn form - Principles discussed

Legislation:

Nil

Result:

Declaration made as to validity of will of deceased dated 6 December 1988

Category: A

Representation:

Counsel:

Plaintiff : Mr D M Bruns
Defendants : Mr B J H Goetze

Solicitors:

Plaintiff : Ms H Finch
Defendants : Minter Ellison

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

Banks v Goodfellow (1870) LR 5 QB 549
Boughton v Knight (1873) LR 3 P & D 64
Boyse v Rossborough (1857) 6 HLC 2
Bull v Fulton (1942) 66 CLR 295
In the Will of Wilson (1897) 23 VLR 197
Timbury v Coffee (1941) 66 CLR 277
WA Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439



(Page 3)

Case(s) also cited:

Bailey v Bailey (1924) 34 CLR 558
Nock v Austin (1918) 25 CLR 519

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1 MURRAY J: In this action the plaintiff is in the odd position that he is the executor of the estate of the deceased, a Mr George Lewis, appointed by each of three wills made by Mr Lewis prior to his death, the first on 20 August 1979, the second on 29 November 1988 and the third on 6 December 1988. Mr Lewis died on 3 September 1990.

2 The plaintiff is the proponent of the validity of the first of those wills, the formal validity of which was established to my satisfaction upon the relatively minimal evidence of a Mr Floyd, who was a bank officer of the National Australia Bank in Esperance where the deceased then resided at 7 Smith Street. Mr Floyd was able to give evidence of the procedure which he said was invariably adopted when a customer came in to make a will before witnesses. Mr Floyd was one such witness on the occasion in question, as was a Mr Gottschalk who was the manager of the branch of the bank at that time, but who has since died. These proceedings raise no question that the deceased lacked testamentary capacity in 1979.

3 The plaintiff's case is that the Court should pronounce for the force and validity of this will in solemn form. He asserts that the two wills made nearly 10 years later in November and December 1988 were made when the deceased "was not of sound mind, memory and understanding" by reason that he was 89 years of age and suffering from paranoid persecutory delusions. He was unable, so the plaintiff pleads, to comprehend and appreciate the claims to which he ought to give effect. In short, the contention is that he lacked testamentary capacity at that time.

4 The defendants are all grandchildren and great-grandchildren of the deceased. Those mentioned first, sixth, seventh, thirteenth, fifteenth, sixteenth and seventeenth have taken no part in these proceedings, giving notice that they will abide the outcome. The remaining defendants have jointly filed a defence and counterclaim. They seek a judgment pronouncing for the force and validity of the will dated 6 December 1988 in solemn form. In short, they assert and bear the legal onus of proving that at the time relevant to the making of that will the deceased did not lack testamentary capacity.

5 When the wills made in November and December 1988 were executed, the testator, Mr Lewis, lived in Mandurah. His neighbours at the rear of his property, with whom he was casually friendly and had quite regular social visits, were a Mr and Mrs Phelps. Both gave evidence before me. They were the attesting witnesses to both of the 1988 wills. They were elderly folk and neither recalled that there were two wills.

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Mrs Phelps' evidence about the process of execution was more clear than that given by Mr Phelps. Having regard to the whole of their evidence, I am satisfied that these wills and crucially that dated 6 December 1988 were formally executed in accordance with the provisions of the Wills Act 1970 (WA), s 8.

6 Their evidence was of perfectly normal social contact. There had obviously been some relatively brief conversation about Mr Lewis' family circumstances. He told them he had been twice married. There were children and grandchildren and Mr Phelps had the impression that one of his daughters perhaps visited him more regularly than the others. Mrs Phelps met one of his daughters but he did not discuss family matters with Mr and Mrs Phelps. The deceased was a retired pilot. Much of his flying experience was out of Kalgoorlie into outback areas in the course of general flying duties and conducting a medical flying service which I gather was a precursor of the Royal Flying Doctor Service. He had served in Europe in the first world war. Mr and Mrs Phelps clearly regarded him as a pleasant visitor to their home. He had had many adventures during his life and he was an amusing raconteur as he reminisced, particularly about his flying experiences. He was an interesting man, well travelled, well read, with a good general knowledge and he clearly left them with no impression that he was not in full possession of his faculties. The position was no different when the wills with which they were concerned were executed.

7 The classical exposition of the common law in relation to testamentary capacity is that of Cockburn CJ giving the judgment of the court in Banks v Goodfellow (1870) LR 5 QB 549 at 565. The law was restated by Hood J in In the Will of Wilson (1897) 23 VLR 197 at 199:

"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. If his brain is affected by delusions, so as to interfere with the disposal of his property, and to prevent him from doing what he otherwise would have done had his mind been sound, then he does not possess testamentary capacity, and the will is not a valid will."

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8 It can be seen that, firstly, what is being spoken of is a capacity rather than the exercise of it. The question is whether the testator had the capacity of sound judgment rather than that he or she in fact made the judgment about the disposition of the estate by will soundly and for reasons which might appear to the observer to be good.

9 Secondly, it should be understood that the testator need only be able to understand the general nature and effect of the testamentary act. There need not be understanding of the precise terms and effect of particular provisions of the will but the testator needs to understand that this is to be a disposition of the estate upon his or her death. There must be some general understanding of the nature of the property the subject of that disposition and a capacity to make a rational decision about who the beneficiaries of the estate ought to be. One sees in the cases an emphasis on the consideration of a causal relationship between the incapacity and the testamentary act so that a will will be held to be validly made if made during a lucid interval, although testamentary in capacity might otherwise be generally found.

10 If a will appears to be validly made on its face, an evidentiary onus falls upon the party who would seek to establish its invalidity to adduce evidence to cast doubt upon the testator's testamentary capacity. That being done, the legal onus again falls upon the party who propounds the validity of the will to affirmatively establish the existence of testamentary capacity at the time of its execution and the giving of instructions in relation to it: Worth v Clasohm (1952) 86 CLR 439.

11 The case of Timbury v Coffee (1941) 66 CLR 277 is a case where a will made during a lucid interval by a testator whose mind was otherwise disordered by damage due to alcoholism was held to be valid. On the other hand, in Bull v Fulton (1942) 66 CLR 295, a will made by a testator who excluded nephews from the dispositions in the will because she held the deluded belief that they had forged documents damaging to her in connection with business transactions was held to be invalid because the propounder of the will failed to show that the decision in question was not motivated by the delusional belief. Those cases were followed by Hale J in WA Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 where his Honour concluded that the terms of the will were motivated to exclude the defendant by delusional beliefs rendering the testator incapable of weighing rationally the extent of the defendant's claim upon him. As his Honour put it, "The question is, of course, whether [the testator's] ideas touching the defendant were rational, not whether they were just."

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12 The same point was made by Hannen J in summing up to a jury in Boughton v Knight (1873) LR 3 P & D 64 at 66 by saying of the requirement to establish that the testator was of "sound mind", that those words:

"… do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. We do not sit here to correct injustice in that respect. Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will."

13 The difficulty, of course, may often be that the circumstances raised in the case as adversely affecting testamentary capacity may so operate to different degrees. In Boyse v Rossborough (1857) 6 HLC 2 at 45, Cranworth LJ said, in language which it would no doubt be inappropriate to use today:

"On the first head the difficulty to be grappled with arises from the circumstance that the question is almost always one of degree. There is no difficulty in the case of a raving mad man or a drivelling idiot in saying that he is not a person capable of disposing of property; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon, but at what precise moment twilight becomes darkness is hard to determine."

14 In Bull v Fulton at 339, Williams J accepted the definition of a delusion as "a fixed and incorrigible false belief which the victim could not be reasoned out of". So it is more than a persistent unreasonable belief, suspicion or fear. It is something of the degree of severity which enables it to be characterised as fixed and incurable irrationality.

15 Hood J in In the Will of Wilson addressed the same issue at 200, saying that:

"… the difficulty arises as to what is a delusion. Mere eccentricity certainly is not, though when coupled with other

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facts it may afford evidence of delusion. Extreme opinions certainly are not, nor are manners and customs which differ from those adopted by the majority. … Still, undoubtedly there is a point at which the mind passes from eccentricity into madness or delusion. … The whole of the surrounding circumstances should be considered. The test that has been suggested is that the tribunal which has to decide should consider the alleged acts of lunacy in the light of the person's surroundings, and then say whether any sane person could so have acted."

16 I turn to the facts of this case. The deceased was born on 12 March 1899. As a young man he served during the first world war in Europe with the first AIF. On the evidence before me, it was a defining period in his life. He came to the view that the English commanders habitually used Australian troops in the first wave of attacks on the enemy so as to preserve their own troops. The Australians, he thought, were used as cannon fodder to blunt the enemy's resistance.

17 It seems that he may have reached the rank of sergeant and then had the opportunity to learn to fly and to join the Australian Flying Corps where he achieved the rank of lieutenant. It was in that context I gather that he learned his flying which, as I have suggested, he seems to have continued commercially in Australia, and particularly in Kalgoorlie, after the war until in the mid 1960s he lost his pilot's licence because by then he had become profoundly deaf. His deafness was, as I understand the evidence, brought on during the first world war and it seems to have gradually worsened, although it would appear that for many years he did nothing about it because the evidence was that he was finally fitted with a hearing aid at the insistence of his daughter Anne in about the mid 1980s.

18 One of the documents found in his personal effects after the deceased's death at the age of 91 on 3 September 1990 was a document entitled "The Pommy Takeover of Australia", typed and annotated by the deceased. Witnesses gave evidence that he had worked on this documents in various versions over many years. The general theme is suggested by the title. The document is a rambling account of the views formed by the deceased and his personal experiences, including with neighbours of English extraction. It is perfectly apparent that he regarded persons of English extraction, by definition, as being poor types. The version of the document in evidence commences with the sentence, "1987 and the country is declining at a rate indicating total disaster." At its conclusion,

(Page 9)

it refers to the age of its author as being 88. Ignoring the imperfections in the deceased's typing skills, it ends:

"Message ends Aussies. To me, with the knowledge that I have done my best in an attempt to bring our country back to the concept of 'a fair go', which was the guiding principle of those splendid blokes with whom I did battle with old Fritz, a worthy foe. I feel that we are all of us Aussies under an obligation to those who fought, and did not come back, but gave their lives in fighting for a principle of a Fair Go, our customs and way of life, and integrity. And we can only honour our debts of gratitude, by bringing this country to a condition which was good to live in way back in the earlier days of this century. Aussies, at 88 years of age, I feel a bit of a spent force, also the debilitating effects of my probing into the pommy takeover have left me tired and lacking energy. But I can call to you young and up and coming Aussies, to 'get stuck into it, before it's too late', or you will be just financial slaves to Mother England. … Message Ends."

The conclusion of the document is representative of its tone throughout. The eccentricity of view and expression of the deceased is clearly apparent.

19 The deceased had three children by his first wife, Joyce Stewart. They were a girl named Megan born in 1924, a girl named Anne born in 1926 and a boy named Peter born in 1933. A daughter of Megan, Elizabeth Asher, is the ninth-named defendant. She was a witness called by the defendants. Her aunt, Anne Lewis, one of the deceased's daughters, was also a witness called by the plaintiff. The deceased had two children by his second wife, Marjorie. They were a daughter, Susan Falkner, as she became, born in 1950 and a son named John born in 1955. Mrs Falkner was a witness called by the plaintiff. There were only three family members called to give evidence.

20 I have mentioned the deceased's service in the first world war and that when he returned to this country he continued his flying, working out of Kalgoorlie with a regional air service and involved in the establishment of a medical flying service. He lived and worked in Kalgoorlie for many years until in the mid 60s, probably at about what would be an ordinary retiring age, he lost his pilot's licence and retired. By that time I was told he had become profoundly deaf. Years later he had a hearing aid fitted. I gathered, however, that he remained afflicted by severe deafness until his death. It was a reflection of his personality that, as I was told by his

(Page 10)

granddaughter, Mrs Asher, he had painted on his aircraft as a motto the words "nil carborundum bastardum". Mrs Asher understood that that meant, "Don't let the bastards grind you down", as indeed it might, rather freely translated from bad Latin.

21 The deceased continued upon his retirement to live in Kalgoorlie for a number of years but then, at least from the mid 1970s, he lived in Esperance. He was visited there by both Anne Lewis and Susan Falkner. Both women had kept in touch with their father while he lived in Kalgoorlie but I gathered that Ms Lewis saw rather more of her father after she returned from England where she had lived and worked for some years. She herself was a pilot and had a short period of flying out of Kalgoorlie.

22 Initially after the move to Esperance Mr Lewis appeared to his daughters, Ms Lewis and Mrs Falkner, to be managing satisfactorily and to be happy. It was during this period on 20 August 1979 that he made his first will, the one witnessed by Mr Gottschalk and Mr Floyd, the bank officers in Esperance.

23 The will is a simple one, giving the whole of his estate to be divided equally among his three daughters and two sons. He made a direction "that a simple headstone be erected on my grave with the following inscription: 'HE FOUNDED AND OPERATED THE GOLDFIELDS AERIAL MEDICAL SERVICE' ".

24 However, by 1984 Mr Lewis' behaviour was giving cause for concern among members of his family. Ms Lewis testified that the change was quite dramatic. Her father formed a strong aversion to a neighbour named Brian of whom he became very afraid. He was convinced that Brian was trying to kill him. Mr Lewis commenced to take extreme measures to stop Brian gaining access to his house and contaminating his food. He had been given a television set by Brian which he turned to the wall, saying that Brian was using the machine to spy on him. He also said that Brian had a machine in his garage which he used to direct laser beams against Mr Lewis. He would move his mattress to a central position inside the house to reduce the danger.

25 I gathered that this was a new development, although Mr Lewis had long been concerned for his security because of his deafness, and he would rig tins on strings designed to make a racket which he might hear if there should be an intruder.

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26 On 7 July 1984, Mr Lewis wrote a long and rambling letter to Mrs Falkner. He mentioned strife with a neighbour and his son and wife, their intrusion into his house and their complaints which had led to the police, described as the "Gestapo", seizing guns which he had kept as a deterrent to unauthorised entry into his house. He described the use of a very high pitched loud noise which he thought was being deliberately employed to send him "around the bend". It is clear that whatever was happening, it was causing Mr Lewis very considerable distress.

27 He said that at one stage he called the Clerk of Courts who attended with police officers during one night and apparently warned Mr Lewis that he must not harm supposed intruders by the use of a weapon. The police seem to have been asked to attend on a number of occasions and made an effort to reassure Mr Lewis that he was perfectly safe. He was not reassured and remained convinced that the neighbours were interfering with the locks on his shed and house. It seems that Mr Lewis was asked for his next of kin. He did not nominate his oldest daughter Megan, for reasons which he gives in the letter, but nominated Anne Lewis, to whom he refers as "Orphan Annie". He asks Mrs Falkner to inform other family members of his situation saying, "There's NO PANIC – so don't worry – just pass on guts of message to all troops."

28 Anne Lewis said in evidence that she received a telephone call from a concerned neighbour and with Megan travelled to Esperance to find their father living in a state of siege in the house with five firearms which they removed and handed in to the police station. Ms Lewis said that whilst they were there in Esperance, Mr Lewis was much more relaxed and comfortable. They arranged to sell the house and for him to move temporarily to live with Ms Lewis in her home at Mundaring. He appeared to accept that with equanimity and on 9 August 1984 he wrote again to Susan Falkner and her sons, Samuel and Luke, the two last mentioned defendants, a perfectly rational letter in which he refers to his plans, his difficulty with the cold weather in Esperance, plans for an operation to his hip, plans for travel and plans concerning where he might ultimately live, perhaps with Anne and Megan.

29 It seems that Mr Lewis did have a hip replacement operation because the evidence is that in 1985 he was a resident in Benningfield Lodge, Pinjarra, to convalesce. When he became sufficiently well to be mobile and saw that the lodge was an aged persons care facility (bearing in mind that he would by then have been 86), Mr Lewis promptly arranged to purchase a home in North Pinjarra and checked himself out of Benningfield Lodge. He took up residence in North Pinjarra in July 1985.

(Page 12)

Anne Lewis' evidence was that she continued to visit her father until, to her evident distress, he told her that he no longer wanted her to do so, whereupon she regarded herself as free to pursue her long-term plan to move to Denmark, which she did in 1986. Thereafter she did not see her father again before he died.

30 Susan Falkner continued to visit, however, and to her he said that Anne had been poisoning his food and Megan was somehow causing impairment or disturbance of his vision. It was for those reasons he said that he had told them not to visit again. It seems that it was not long before Mr Lewis again fell out with neighbours, particularly those of English extraction who featured to some extent in his work "The Pommy Takeover of Australia".

31 Mrs Falkner said that again he accused a neighbour of breaking into his house. He had many padlocks and anti-burglary devices which he installed. He became very anxious and to use her word "paranoid". He was deaf, physically ill and highly antagonistic towards his English neighbours. For a brief period, he moved into Pinjarra where, according to Mrs Falkner, there was again trouble with the neighbours who he said were detonating explosions under his house. Again he turned his house into something like a fortress and he had available to him there a knife which he tied to the end of a broomstick as a sort of spear.

32 While living there, Mr Lewis was under the care of Dr Tropiano, a local general medical practitioner, who gave evidence of seeing Mr Lewis in May and June 1988. He expressed the opinion that when he was assessed on 26 May 1988, Mr Lewis was:

"… quite paranoid, convinced that communist spies were breaking into his house regularly. He stated that he patrolled the house at night holding a knife. He also declined meals on wheels as he feared that they may poison his food. He described vivid memories of killing while in action in France 1918. He also mentioned ? hallucination of skeletons with steel hats going by. There were certainly times that Mr Lewis was not in touch with reality."

33 I would, of course, accept that as evidence of deluded beliefs. This evidence has a rather different quality from that given by Ms Lewis and Mrs Falkner. Although in their evidence there were some clear examples of deluded beliefs, eg, using a television set to spy on Mr Lewis, using high-pitched noises to disturb him, poisoning his food, causing spots in

(Page 13)

front of his eyes, setting off explosions under this house, there are other areas where their evidence seems to me to be indicative merely of substantial anxiety and fear leading to extreme measures for his security and well being.

34 However, it is also clear that Mr Lewis at this time, and since 1984, was not always afflicted by these difficulties. His letter dated 9 August 1984 written to his daughter Susan is a perfectly rational document which makes no reference to the sorts of problems discussed at length in the earlier letter of 7 July 1984.

35 Dr Tropiano referred Mr Lewis for assessment to a place called Armadale Lodge. I am satisfied that that occurred at about the end of May 1988 and their report in evidence before me was made on 1 June 1988. The assessment was carried out by a social welfare officer and a community care nurse. They described Dr Tropiano as the general practitioner but referred to the reason for referral as being that Silver Chain staff were concerned. It is clear that the assessment was done at Mr Lewis' home in Pinjarra. He was friendly. He took pleasure in showing the two who came, his photographs, telling the story behind each in great detail. It was reported that:

"There was no evidence in his demeanour of any hostility, paranoia or dementia, neither did he have any problems understanding our questions. His concern about noises at night around his house could be based on sound being distorted due to his hearing impairment; we noted that there were several cars and young people in the home across the road and they could be returning home late at night or in the early hours of the morning."

The welfare officer and nurse spoke with Mrs Falkner. She reported paranoid ideation but said this was "based on reality". The reporters then discuss the most suitable form of accommodation for Mr Lewis, given that he appeared to be "fairly independent" and that there was "no evidence that his self-care skills were poor". A document of this kind would, of course, provide no cause for concern about Mr Lewis' testamentary capacity.

36 As I have said, by 1988 at least Mr Lewis had moved from Pinjarra to Mandurah. It was while he lived there, it will be recalled, that he made the wills dated 29 November 1988 and 6 December 1988 by which time, of course, he was aged 89. These wills, it will be recalled, were made about 21 months before his death on 3 September 1990 at the age of 91.
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37 The solicitor who made these wills is a Mr Clement, who has practised for many years in Mandurah and who gave evidence, supported by contemporary documentation emanating from Mr Lewis, about the process of taking instructions and making the wills. It was very evident that Mr Clement liked Mr Lewis. He clearly regarded him as an eccentric old gentleman, but nothing in his dealings with Mr Lewis gave him cause for concern about his client's testamentary capacity. He was, he said, alert to the possibility of testamentary incapacity. Had there been cause for concern he would have considered the matter with care and he might or might not have accepted the instructions to draw the will, depending on his final conclusion as to the capacity of Mr Lewis to undertake the task of duly executing the document.

38 When Mr Lewis first came to Mr Clement's office to consult him about changing his will on 3 November 1988, he came well prepared with a document discussing his circumstances and providing instructions. It is a lengthy document accurately referring to his marriages and family circumstances. He gives his history, discussing his war service and how he came to be trained as a pilot. He discusses his flying career out of Kalgoorlie and around the outback of West Australia, including the initiation of the Goldfields Aerial Medical Service which he says he operated until 1960 "when the aging process called for no more flying". There is discussion of his family circumstances and his retirement to Esperance.

39 He says it was the idea of Megan and Anne that he should leave Esperance. He refers to no difficulties concerning his residence there. He describes the hip operation, his move to North Pinjarra where he found his first place of residence to be "criminal corner". He says that he went to live in Pinjarra itself "which turned out to be as bad". He refers to the 1979 will and then says:

"Anne would visit me mostly during the afternoon – stay for the evening meal, then leave. Within minutes of her leaving I would be flat on my back on the couch, gasping for breath. After about a dozen of these episodes, known as Dad's Turns to the family, one Frank Colquohoun, ex chief engineer Miller Macs NW Service (flying) was with me, and found it difficult to understand. So I telephoned Anne, saying that I was starting an experiment, and NOT to visit me until further notice. That ended 'Dad's Turns', for I have ceased communications with her."

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40 The letter goes on to refer to his consultation with a medical practitioner who diagnosed fluid on the lungs, a condition which clearly in the letter Mr Lewis attributes to "Anne's weapon". He then refers to Megan and, after her visit, his trouble with vision which led to him telling Megan not to visit until asked. The document then contains the statement, "These offspring are in a financial position which keeps them going." He gives some details and adds:

"Finally, I feel no call to use my hard earned currency to support folk who do me evil. So I want another WILL to be kept secret until after I go to meet my old Cobbers of the AIF and AFC. And I want to leave as beneficiaries the grand, and maybe great-grandchildren for whose being on Planet Earth I feel some responsibility. So, legal amigos, in the vernacular of the aerial meds it's 'over to you'. I figure best results would follow on these young folk receiving their share of my efforts when they reach maturity – say at the age of 21. Message ends."

followed by Mr Lewis' signature. There is another page to the document headed "Side issues" which discusses various family matters to which I need not refer.

41 It seems that the original proposal was that Mr Clement and Mrs Falkner should be joint executors of the will. Mr Clement asked for Mrs Falkner's current address and for confirmation of the spelling of her surname. Mr Lewis wrote a letter to his solicitor, dated 3 November 1988, which was received in the solicitor's office on 8 November 1988 and crossed a letter dated 9 November 1988 confirming Mr Clement's request for the information mentioned, seeking other information and confirming verbal advice that the proposed new will may be challenged by Mr Lewis' wife or children under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA).

42 It was perhaps with that in mind that Mr Lewis wrote two further letters to his solicitors on 10 and 17 November 1988. In them he goes into considerable detail about his relationships with his wives and children. When he mentions his daughter Anne Lewis, he again refers to the episodes of breathlessness which, he says, came upon him at times immediately after a visit by Anne to his home in North Pinjarra. He says that he took medical advice, was diagnosed as having fluid on the lungs and given appropriate medication which helped. He then telephoned Anne, told her that he was going to try an experiment and she was not to visit him until he asked her. The illness did not come upon him again. He

(Page 16)

concluded that it was confirmed that Anne was the culprit, "rain making in my lungs" and so he did not ask her to return.

43 He mentions his daughter Mrs Megan Stretch who told him that she had been associating with a person who developed "colour blobs" in his vision. After a visit, he developed identical symptoms, assumed Megan was responsible and told her not to visit him again. He mentions his son Peter, again a child of his first marriage and he speaks of their good relationship, Peter being "in insurance" and living happily in New Zealand with his family.

44 He talks of his second marriage and how he met his second wife. He mentions Mrs Falkner who comes to visit him with her two sons and is "coming again tomorrow". He mentions his son John, the younger child of this marriage as being a very successful artist exhibiting in Australia and America; "He won't need any help". Then he discusses why in his view his first marriage failed and his own history, mentioning the high points of numerous successes in his flying career. The letter terminates as if unfinished.

45 The second of these two letters, that dated 17 November 1988, is a finished document written expressly in response to the solicitor's letter dated 9 November. After giving the information sought, he again discusses at some length his marriages and relationships with his children. He accuses his second wife of infidelity and describes his view of the breakdown of this marriage after separation and an apparently unsuccessful attempt by Mr Lewis to re-establish the relationship. He describes happy times living and working in Cunderdin with his son John.

46 He describes the circumstances which led him to go with his dog to live in Esperance in retirement, spending his days fishing with old mates from Kalgoorlie. He describes a visit by Susan which was successful. He speaks of giving financial assistance to John for an art exhibition and again says, "John is raking in the dollars." Susan had brought his second wife Marjorie to visit on occasions. The relationship was polite but distant. His wife, he says, appeared to be in comfortable financial circumstances. He adds at the end of the letter:

"Susan has her marriage and a meal ticket (psychiatrist). They're all mad. And Johnny is well established as the ghost of the famous artist "Turner" whose work brings pleasure to my visual senses, so does Johnny's."

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47 It is evident, I think, that whatever may be the factual accuracy of the content of these documents, they were prompted by the reference to the Inheritance Act and they are directed to explaining why he proposed to make no provision in his will for wife and children. Although there is again a reference to Megan and Anne doing him harm, as he inferred, without, it would seem, any sensible justification but the coincidence of their visits with unwelcome symptoms, the great bulk of these documents are, despite some eccentricity of expression, logical justifications for the decision he had taken as to the disposition of his estate. As I say, I have no information about the factual accuracy of what he says, but that is not to the point. A principal justification emerging from these documents and that of 3 November 1988 is that his children were all in a position financially to support themselves, as was his second wife to whom he attributes the blame for the breakdown of their marriage.

48 Mr Lewis collected the will which had been prepared by his solicitors on 28 November 1988. He executed it with the assistance of Mr and Mrs Phelps on 29 November. The plaintiff is appointed as his executor. There is a specific bequest of $1,000 to the Department of Aviation Historical Society WA Division and the bequest of the residue of his estate is made equally to his grandchildren and great-grandchildren who shall survive him and attain the age of 21.

49 However, despite the execution of this will, it appears that Mr Lewis wanted a variation made to this bequest so that it was for the benefit of his grandchildren and great-grandchildren already born. He conveyed that to his solicitor. The change was made. He collected the amended version of the will on 6 December 1988 and, as has been seen, again with the assistance of Mr and Mrs Phelps, executed that document on the same day. The only change made was to the form of the gift of the residue of his estate to his trustee to hold:

"… for those of my grandchildren and great-grandchildren who were born on or before the 31st December 1988 and who survive me and if more than one equally between them on their respectively attaining the age of twenty-one (21) years."

As I have said, Mr Lewis was then aged 89 and he died 21 months later on 3 September 1990 at the age of 91. Again, the nature of the change made is a sensible enough way of limiting the class of beneficiaries. Those grandchildren and great-grandchildren are now the defendants to this action.

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50 I turn now to the medical evidence. I have mentioned that given by Dr Tropiano. It is of some assistance and, as I have said, I accept that Mr Lewis was at that time, in May and June 1988, displaying the sort of delusional beliefs which had apparently beset him since at least 1984, but it is equally clear from the assessment made at Dr Tropiano's request by Armadale Lodge and the nursing and social welfare staff members there that Mr Lewis could behave in a way which was perfectly lucid and would allay concerns about his mental state.

51 During the time that he lived in Esperance after he lived in Mandurah and after he made the wills, but before his hospitalisation and death from cancer of the prostate, Mr Lewis had occasion to consult a local general medical practitioner, Dr Byrne. I had the benefit of his evidence given by videolink from Esperance.

52 He first saw Mr Lewis on 30 March 1989 when he was complaining of arthritis of the knees which was treated with anti-inflammatory drugs. On 4 April 1989, he returned complaining of insomnia and dizziness after taking a drug. He was given general advice. At this time there was no occasion to conduct any in depth assessment of Mr Lewis' mental state. Dr Byrne said he knew Mr Lewis. He described him as a unique person, a character and a legend, an outgoing personality, gregarious, a delightful man displaying no sign of senility, disorientation or disordered thought processes. Dr Byrne gave as his opinion that at the end of November and early December 1988, he had no doubt Mr Lewis' mental state would have been the same. The consultations were, however, of the standard length of 10 to 15 minutes.

53 Dr Byrne did not see Mr Lewis again until 21 May 1990 when he was brought to the out-patients department of the Esperance District Hospital following a fall in which he had injured his left elbow. At that time he appeared confused and verbose. He was admitted to hospital and x-rayed. A fracture of the left elbow was confirmed. On chest x-ray his cancer of the prostate, originally diagnosed and treated in 1985, was found to have established extensive secondary infection of the lungs. He was transferred to Sir Charles Gairdner Hospital from which he was discharged on 21 June 1990.

54 He was returned to Esperance and subsequently admitted again to the Esperance District Hospital where he became confused and deteriorated. At that stage, over a year after the visits to Dr Byrne's surgery in 1989, the doctor thought that he was displaying signs of senility. Dr Byrne thought Mr Lewis had deteriorated over the year since he had first seen him. The

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evidence of this witness, of course, provides no relevant diagnosis of paranoid delusions. The only such diagnosis is that made by Dr Tropiano in May 1988.

55 Dr Goldswain is a specialist consultant at the Department of Geriatric Medicine at Royal Perth Hospital. He gave expert evidence about the sort of detailed assessment which a medical practitioner would need to make to establish a patient's mental capacity. There would be physical and mental examination of the patient. A history would be taken, not only from the patient but also from carers and relatives. If the assessment was for the purpose of assessing testamentary capacity, questions relevant to the process of making a will and to the patient's understanding of that process, his or her estate and the legitimate claims which others might have to benefit from it after the patient's death would be asked. The medical practitioner would be seeking to be satisfied that there were rational, logical grounds for the decision-making process which was being undertaken.

56 Dr Goldswain did not ever see or make such an assessment of Mr Lewis, nor it appears has anyone else. Without it, it would seem it would be difficult to make a firm diagnosis of paranoid delusions, dementia or senility because of the differing degrees of impact which such conditions may have upon an individual's mental state. A solicitor taking instructions for a will might have difficulty, no matter how experienced, in determining accurately what the client's mental state was. A neighbour would have similar difficulty. A general medical practitioner would be in a better position but again a reliable diagnosis would depend upon an appropriate investigation.

57 Specifically as to paranoid delusions, Dr Goldswain, in my view, defined the concept from the medical point of view in much the same way as the courts have defined a state of delusional belief in this context as something which his not grounded in reality and cannot be shifted by an appeal to reason. The term "paranoia" may equally be applied to describe the state of a patient afflicted by such delusional beliefs. Dr Goldswain pointed out that such beliefs may exist but leave testamentary capacity relevantly unimpaired. The investigation from a medical point of view would be as to the true or substantial cause of the decisions for a proposed testamentary disposition.

58 Bearing in mind where the onus of proof lies, I have come to the following conclusions. Mr Lewis was always a true eccentric whose views on a variety of topics may not always have commanded universal

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acceptance. He seems to have had a direct and colourful way of expressing himself. He was gregarious and most people seem to have found him to possess an engaging personality, although no doubt there were some who were irritated by him. He lived to a considerable old age. Towards the end, probably from about 1984, the eccentricity of certain of his beliefs commenced to assume delusional proportions, although on the state of the evidence before me I am unable to make firm findings that there was no cause for his beliefs that some of his neighbours were harassing him and posed a threat to him.

59 Nonetheless, the nature of his beliefs about what was happening seem to me to possess characteristics of delusion in some cases, no doubt exacerbated by age, episodes of ill health and a degree of isolation, itself made worse by increasing and profound deafness. Nonetheless, those beliefs about the English, about neighbours, about harassment by noise, unauthorised entries to his house, attempts to poison him and the like do not strike me as being delusional beliefs of a kind which would cause me to doubt Mr Lewis' testamentary capacity at the end of 1988 at the time when he was giving instructions for, and when he made the will dated 6 December 1988 or, indeed, that of 29 November 1988.

60 As to the making of those wills, there is nothing to suggest that at the time Mr Lewis was in such a state of senility or dementia, or so afflicted by delusions as to be deprived of testamentary capacity to any degree. He was living an independent life and apparently coping well enough despite his advanced years. He may have come to the view that he should make a new will because he held the deluded belief that Megan Stretch and Anne Lewis were endeavouring to harm him, but I think that cannot have been his true motivation because he held no such view about the others who were then the beneficiaries of his estate, his daughter Susan and his sons Peter and John.

61 In truth, I think, as is the overwhelming flavour of his contemporaneous documents, he took the view that it was no longer the case that his children would need financial assistance upon his death. On the other hand, Mr Lewis clearly felt that he wished to provide some assistance for his grandchildren and his great-grandchildren "for whose being on Planet Earth I feel some responsibility", at least those who then existed and who would survive his death and attain the age of 21. To my mind, the evidence establishes that he made a rational decision as to who should be the beneficiaries of his estate, as to who had claims upon his estate which he wished to recognise and to which he would seek to give effect. He understood that the subject matter of his estate would be such

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property as he should own upon his death and he undoubtedly understood the nature of the testamentary act.

62 In my opinion, the plaintiff's claim should be dismissed and the defendants' counterclaim should succeed. I pronounce for the force and validity of the will dated 6 December 1988 in solemn form of law. I will hear the parties on what order should be made in respect of the costs of the action.