Will of Eileen Elsie Ryan: Williams & Howden v Ryan

SUPREME COURT OF VICTORIA

PROBATE JURISDICTION
Not Restricted
No. Prob. 14 of 1997

In the Matter of

the Will of EILEEN ELSIE RYAN (Deceased)	Plaintiffs
ROBYN JOAN WILLIAMS and JUNE HOWDEN
v
BRUCE WILLIAM RYAN	Defendant

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JUDGE:	Byrne, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, 28 August 1998
DATE OF JUDGMENT:	4 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 60

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WILLS and CODICILS - Testamentary capacity - 60 year old alcoholic woman with

dementia

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr W.F. Gillies	Graham Seivers & Lee
For the Defendant	Ms C.H. Sparke	McMahon & Treby

HIS HONOUR:

The deceased, Eileen Elsie Ryan, died of bilateral bronchopneumonia on 9 March 1997 aged 69 years. She had executed a will dated 28 September 1988 in which she named as her executors the plaintiffs, Robyn Joan Williams and June Howden. She left surviving her two adopted children, a son Bruce William Ryan, the caveator and defendant, and a daughter now known as Samantha Lee Eggins (formerly Samantha Lee Howden and sometimes called Gayle Eileen Howden or Laxton), and a number of grandchildren, of whom, some are the children of Mrs Eggins and some the children of Mr Ryan. Instructions were given for the preparation of the will on 15 September 1998.
In this litigation the plaintiffs seek probate of the will in the face of a caveat lodged by Mr Ryan. The sole issue is the testamentary capacity of the deceased. The defendant alleges that, at the relevant time, the deceased suffered from imbecility from moderately severe dementia dating from May 1988 or thereabouts.
The deceased had for some 10 years or more been an alcoholic. There was disagreement in the evidence of her daughter, Mrs Eggins, and her son, Mr Ryan, as to the actual quantity she was accustomed to consume over this period, but there was no doubt as to her underlying condition or that it had an incapacitating effect on her. Her general practitioner since 1963 Maxwell Liddle Hankin, noted that she was in 1985 and 1987 nervy, forgetful and intellectually confused. It seems, too, that, at this time, she was not fully able to look after herself. While she could perform basic culinary tasks it was her husband Frederick William Ryan who did the cooking and who performed the everyday tasks around the house after he returned from his work at the Herald & Weekly Times. It was he who looked after all financial matters. According to Mr Ryan junior, his mother would not have been capable of finding her way to the city. The level of incapacity at this time, and generally, was disputed by her daughter Mrs Eggins and her biological mother, the firstnamed plaintiff Mrs Williams. It seems that Mrs Eggins’ adoptive mother, the deceased, and her biological mother, Mrs Williams, became friendly in 1987 and Mrs Williams was a frequent visitor at the Ryan home. Mrs Williams said that, prior to January 1988 the deceased had been capable of reading without assistance, cooking and performing all other household duties for herself without assistance and that she could write. I do not accept this to have been the case. The evidence shows that she was at this time incapable of doing these things when she was drinking and even when she was not drunk. According to Mrs Eggins, she was incapable of even opening a beer can by herself.
On 3 January 1988, shortly before his retirement, Mr Fred Ryan suddenly died. This, naturally enough, had a devastating effect on the deceased, his widow. According to her son she became quite hopeless. Mrs Williams, too, said that she lost interest in all things around her and she became dependent upon the plaintiffs, Mrs Williams, and the secondnamed plaintiff Mrs Howden who is the mother of Mrs Williams. At the time of Mr Ryan senior’s death, Mrs Eggins, then aged 19 years, and her husband Mark Laxton and their three year old daughter Tara lived in a caravan at the rear of the deceased’s home in Thomastown. At this time, too, Mr Bruce Ryan was either living in the home or a frequent visitor.
It is necessary to underline that, in 1988, relations between Mrs Eggins and her brother were hostile and at times violent. It is apparent to me that in these hostilities Mrs Williams and, perhaps, Mrs Howden took Mrs Eggins’ part. A regrettable feature of these strained relationships was that the deceased became another weapon available for use by the hostile parties.
Shortly after Mr Ryan senior’s death, after a fight with her brother, Mrs Eggins and her family moved out of the home at Thomastown to an address in Coburg, leaving Mr Ryan at home with his mother. At the end of January Mr Ryan met his present wife Betty and shortly thereafter he moved with her to a house in Reservoir leaving the deceased at home alone. I was told that he and Betty visited her regularly and that she often stayed with them at Reservoir from Saturday to Wednesday. At this time the deceased was drinking heavily.
The deceased lived on in her home until Mrs Eggins took her to live with her at Coburg. According to Mr Ryan she just vanished; he did not know where she was. He said that this was after his birthday on 17 March. Mrs Eggins put it about a month earlier but the date is not important. After a short time she returned to Thomastown with Mrs Eggins and Tara but without her husband Mark. Bruce and Betty said that they resumed their visits to the house. Mrs Eggins and Mrs Williams said, and I accept, that at this time and thereafter they were able to reduce the alcohol consumption of the deceased.
On 20 April 1988 in the course of a visit with her son to the solicitors Messrs Home Wilkinson & Lowry on some matter concerning her late husband’s estate, the deceased made an enduring power of attorney in favour of Mr Stephen Canals of that firm. I infer that this was done because it was perceived that she was or was likely to be unable to manage her own affairs.
About this time, too, there was some violence between Mr Ryan and his sister and on 5 May 1988 he attended the Magistrates' Court and successfully resisted the making of an intervention order preventing him from visiting the Thomastown property.
Against this background, the deceased consulted Dr Hankin at his surgery on 10 May and again on 17 May 1988. Dr Hankin’s note of the first visit records shortly his opinion that she was suffering from mild dementia and that he certified that she needed home help. His diagnosis of mild dementia was not challenged by any party nor was it disputed that she suffered from dementia at the time the will was made some four months later. A week later on 17 May she came again to Dr Hankin’s surgery complaining of an ear infection. On that occasion he conducted tests to determine her mental condition. She told him she was unable to cross the road by herself because she was scared. She was unable to tell him the date, the month or the year or the name of the Prime Minister. He said that, when asked, she replied that 12 plus 8 equals 10. Dr Hankin said that, following this examination, he adjusted his assessment of her state of mind to that of moderately severe dementia. He did not see her again until 31 October 1988 after the will had been made in the preceding month.
From this time Mrs Eggins and Tara continued to live with the deceased at Thomastown with Mrs Williams visiting regularly. The deceased became dependent upon them and derived a good deal of satisfaction from the presence of her grand-daughter, Tara, who occasionally accompanied her to the local shop. Mrs Williams said that the deceased used to also visit her at her home where she lived with Mrs Howden, and the three women were accustomed to play cards and to place modest bets on the races. The deceased was able to do this and to enjoy the successes of her selected horses. Mrs Williams said, too, that although the deceased deteriorated physically she “remained mentally alert right through until approximately 1990 when I noticed the first signs of her forgetfulness”. I do not accept this. It is inconsistent with the preponderance of the evidence of all witnesses as to the deteriorating mental condition of the deceased to that date. Either Mrs Williams was not observant or it is an exaggeration or just false. Mrs Williams was, however, close to the deceased. She told me and I accept that she used to assist her friend in the management of her affairs; she used to take her shopping and withdrew money from her account or perhaps cashed cheques from an account kept for her by the Herald & Weekly Times as was required for her expenses. She kept receipts for all payments and accounted each month to Mr Canals, the deceased’s attorney under power. Mrs Eggins in her affidavit said that there were many occasions when the deceased was drunk during the period of 30 months from mid-1988 when she lived with her. On these occasions she was incapable of fending for herself. However, as time passed and she became closer to Mrs Williams, the deceased’s drinking lessened and these periods of incapacity were less frequent. She said that when she was not under the influence of alcohol the deceased was perfectly capable of looking after herself. In my judgment this last statement is an exaggeration. It does not explain why the stove was colour coded, nor why the deceased was unable to sign her name or why she was afraid to cross the road. It is not consistent with the inability of a woman of the deceased’s age to cook otherwise than the simplest of dishes.
On 8 September 1988 the deceased revoked the power of attorney in favour of Mr Canals. An explanation for this is given by Mrs Williams in a letter she wrote on the behalf of the deceased to the Guardianship and Administration Board on 31 October 1988 but it is not necessary that I form any view about the matters alleged in it. The revocation was prepared by and executed in the presence of Lauri Edwin Pentilla, a solicitor practising in Coburg. Mrs Williams and Mrs Howden had been clients of Mr Pentilla for some time and I suppose that they recommended him to the deceased to draw up the revocation. The deceased executed the revocation by affixing her mark. Her writing beside the mark shows her to be physically very infirm. The consequence of this was that the deceased was left in sole charge of her own financial affairs.
A week later, on 15 September 1988, Mrs Williams, Mrs Howden and the deceased again attended Mr Pentilla’s office where he took instructions for the deceased’s will. Mrs Williams said it was the idea of the deceased that she should make a fresh will since her earlier will had been made in 1970 when her husband was still alive. According to Mrs Williams, the deceased said that under the existing will her estate was divided equally between her two children and she was worried that no provision had been made for Tara her only grandchild at the time. Mrs Williams, said she recommended Mr Pentilla and arranged for her to see him on 15 September. This on its face is surprising because the deceased had consulted him only a few days previously on 8 September 1988 for the revocation of the April power of attorney. If Mrs Williams intended by this to say that she recommended Mr Pentilla to prepare the revocation, then why did Mr Pentilla not take instructions for the Will at the same time? No light on this is shed by the evidence before me.
Mrs Williams and Mrs Howden said, too, that before she went to the solicitor’s office on 15 September the deceased discussed with Mrs Howden, within the hearing of Mrs Williams, her testamentary intentions. She wanted to give $5,000 to each of the grandchildren and divide the rest between her children as before. There was, however, one significant difference. Her son, Bruce, was to have his half-share reduced by $12,000 to compensate Mrs Eggins for her brother’s “earlier dishonesty”. The evidence of the two women as to this conversation was unsatisfactory, even allowing for the fact that the incident is 10 years old. Upon cross-examination the content of the conversation, the place where it took place and the date on which it occurred changed. I accept, however, that some conversation as to the content of the proposed will did take place before the visit to solicitor on 15 September between the three women but I am unable to make any affirmative finding as to its content.
On 15 September 1988, the day of the consultation with Mr Pentilla, Mrs Williams and Mrs Howden drove to Thomastown. Mrs Howden was left with Tara and Mrs Williams went with the deceased and Mrs Eggins to the solicitor’s office. Mrs Williams said that when they arrived at the office the deceased announced that she wanted Mrs Williams to look after her affairs. This had not been seriously discussed before. They entered the office of the solicitor. Mr Pentilla told me that, with the three women present, he took instructions from the deceased. He was told that the deceased was in the first stages of dementia. He maintained that it was she who told him what were her wishes; it was not a case of her assenting to statements of the other women. I will not set out his account of what he was told. It was not in dispute that his instructions were accurately incorporated in the will which he prepared. It does appear that she gave him a reason for reducing the son’s share and that this was as recorded in cl.6 of the will. He said that in the course of discussing the amount of the grandchildren’s legacy the deceased told him what property she owned. She told him that she owned the house at Thomastown and its contents. He said that she told him that she wanted Mrs Williams and Mrs Howden to be executors and that they should receive a benefit. Mrs Williams said she would accept the office but would not agree to being a beneficiary. The deceased also gave instructions for a fresh power of attorney in favour of Mrs Williams. Mrs Williams swore an affidavit setting out the circumstances of the consultation which were consistent with the account given by Mr Pentilla. The affidavit of Mrs Eggins corroborated the evidence of her biological mother.
This done, Mr Pentilla asked Mrs Williams and Mrs Eggins to leave the room and he discussed the instructions with the deceased alone. He was satisfied that they represented her own wishes freely expressed and without undue influence. He said that he could have had the will and the power of attorney prepared then and there and executed on that day, but he preferred to wait. He sent the will to the deceased by post and arranged for her to return on 28 September for the execution of the documents. On that day he said that the same three women attended at his office although his notes do not mention Mrs Eggins being present. He read the will to the deceased and explained its contents. He said that she appeared to understand what he told her. The will was executed by her in his presence and in the presence of his clerk, Mirta Pronesti. Ms Pronesti gave evidence of the reading and explanation of the will to the deceased and of its execution. She said that the will was read over to the deceased because she was illiterate and that she appeared to understand what she was being told. Mr Pentilla said that, as a precaution, he prepared an affidavit of due execution and swore it on 8 October 1988. In his affidavit, Mr Pentilla also mentions illiteracy as the reason for the inability of the deceased to execute the will otherwise than by the affixing of her mark. The will displays what appears to be an attempt at a signature as well as a mark. The evidence shows, however, that the deceased was not illiterate.
Mr Pentilla gave evidence that the deceased appeared on 15 September 1988 and, indeed, on 28 September 1988 to be of sound mind and able to understand what she was doing. Mrs Williams’ and Mrs Eggins’ evidence was to the same effect. In this regard I see of particular significance the evidence of Mr Pentilla. This is because he is a solicitor of some 40 years’ experience who has made thousands of wills. His account of these events is that of a solicitor who approached his task in a careful way and was astute to see that there was no undue influence and that the testatrix satisfied the legal requirements of capacity. Above all, he is independent; he was not party to the disputes which have afflicted this family; she came to him as a stranger.
The terms of the will themselves are not such as to excite suspicion. Subject to three changes it was, in essence, the same disposition to her two children as she had made in 1970. The first change, to make provision for her grandchildren, is not surprising for she had in 1988 one grandchild and the possibility of others in the future. Second, she made provision for her daughter, who was then separated from her husband and with a young child, to live in the house at Thomastown until age 25. The third change involved the deduction of $12,000 from her son’s share. Evidence was led for and against the fact that Mr Ryan had defrauded his mother of $3,000 and that he had wrongfully taken over his late father’s Commodore car.
It is not in dispute that Mr Ryan senior had, at the date of his death, a Commodore motor car and that his son took it over after that date. He said that his father’s estate passed to the deceased and that she gave him the car. Mrs Williams on the other hand said that the deceased told her that she had given the car to her son on the basis that he stayed with her and looked after her. When he failed to do this he lost the right to the car. The explanation in the will corroborates the son’s account but on any view it is not wholly irrational for her to seek to adjust the bequest to remedy such an imbalance. Some point was made of the amount of the stated adjustment. Mr Ryan said that the car was not worth anything like $9,000 and that, in any event, his mother would have had no idea of its value.
The explanation for the $3,000 adjustment is more obscure. If it is true, the circumstances of its payment were not within the direct knowledge of the deceased or any of the plaintiffs’ witnesses. In his affidavit Mr Ryan simply denies he received that sum from his father. Mr Pentilla said that the deceased told him that, after the death of his father, Mr Bruce Ryan went to the Herald & Weekly Times, his father’s former employer, with his girlfriend who pretended to be his sister, Mrs Eggins. They, as the children of the deceased employee, persuaded the employer or the trustee of the superannuation fund to pay to them $3,000 claiming that it was for a holiday for their mother, the employee’s widow. Mrs Williams confirmed this allegation, saying that the incident occurred soon after Mr Ryan senior’s death. She said later that it occurred when money was withdrawn for the deceased’s trip to Adelaide which would have been in about April 1988. Later again, in the course of the trial, a payment slip dated 21 July 1988 showing a payment in that sum to the deceased was produced by Mrs Williams from the papers of the deceased. This would fix the event at that time and not a few days after Mr Ryan’s death as Mrs Williams first said to me and as the deceased had said to Mr Pentilla. In cross-examination it was put to Mrs Williams that it would have been necessary for the deceased also to accompany her son and his girlfriend to the employer and then to the bank to cash or pay in the cheque which they had received. Mrs Williams was, of course, unable to comment on this suggestion. All of the information about this incident was ultimately obtained by Mrs Williams from the employer when someone from the Herald & Weekly Times telephoned the deceased some time later in 1988 and the call was passed by the deceased to Mrs Williams. It was therefore hearsay and inadmissible to prove the fact. Moreover, it was never made clear what it was that provoked the telephone call to the deceased in the first place. The evidence as to the truth of this allegation was most unsatisfactory and would not support a finding adverse to Mr Ryan. My concern, however, is as to the inference to be drawn from the allegation as to the mental condition of the testatrix. I conclude that whatever be the truth of the allegation and whoever put it in the mind of the deceased, it was certainly there before she visited Mr Pentilla and there is evidence from him that she was apparently able to relate her understanding of it in a rational manner. The will was, on its face, a rational will.

The ultimate burden of establishing testamentary capacity lies upon the propounder, in this case the plaintiffs. This is not a case of undue influence. The plaintiffs, therefore, must, at the end of the day, satisfy the court that at the relevant time the deceased understood, first the extent of her property; second, the persons with a claim to her bounty; and finally the nature of their claims. Furthermore, the deceased must have the mental capacity to weigh up these matters so as to make a rational decision as to the disposition of her property: Bailey v Bailey (1924) 34 CLR 558 at 566 per Knox CJ, Starke J. The propounder, however, has the benefit of a presumption where the will is rational on its face and is properly executed and attested, as is the case here. In such case the will is presumed to have been made by a person of competent understanding unless there is evidence which counter- balances that presumption: Timbury v Coffee (1941) 66 CLR 277 at 283, per Dixon J. The counter-balancing evidence offered in this case is that of Dr Hankin and that of Mr Ryan and his wife as to the severity and impact of her dementia. In face of this evidence I must refuse probate unless I am satisfied that the requirements of mental capacity existed at the relevant time. The relevant time in a case such as this, where instructions were given to a solicitor some time before the execution of the will, is the date of the giving of those instructions, that is, 15 September 1988: Bailey v Bailey (1924) 34 CLR 558 at 572 per Isaacs J.
The difficulty in the present case is that caused by the conflict which appears to arise between the medical evidence which suggests incapacity and that of the solicitor which is to the contrary. I put to one side for the moment the evidence of Mrs Howden, Mrs Williams and Mrs Eggins on the one hand and that of Mr Ryan and his wife on the other. These witnesses were partisan and potentially unreliable on that account.
Mr Pentilla saw the deceased on three occasions, on 8, 15 and 28 September. He had the opportunity and, at least on 15 September, the professional duty to form a view as to her competence. He said he was satisfied of this and in this he was unshaken. I have already mentioned his experience and my perception of the care with which he approached his task. There is nothing in the circumstances described in his evidence which gives rise to any cause to doubt the testamentary capacity of his client. To this, there is perhaps one qualification. She told him in answer to his enquiry as to her property that she owned the house at Thomastown and its contents. She made no mention to him of the money held for her by the Herald & Weekly Times. This may well have been a substantial sum for the balance in July was over $100,000.
Dr Hankin’s evidence was less direct but compelling nonetheless. He knew the deceased well when he saw her on 10 and 17 May, four months before the relevant date, and made the observations which I have already set out. He saw her again on 31 October, some six weeks after the relevant date, in circumstances which I shall now set out.
The will was executed on 28 September 1988. Some three weeks later, on 18 October, a sister of the deceased, Betty Kirk, made an application pursuant to the Guardianship and Administration Board Act 1986 for the appointment of a guardian of the deceased. On 26 October 1988 the Board made a temporary guardianship order pursuant to s.32 of the Act appointing the Public Advocate to be the limited guardian of the deceased, such order to remain in effect for 21 days. The appointment was limited to “the power to make decisions concerning the health, care and accommodation for the [deceased]”. Under s.32 of the Act, such an order may be made only where the Board is satisfied of three matters with respect to the person who is the subject of the application:

1.

she is a person suffering from intellectual impairment, mental illness, brain damage, physical disability or senility: ss.33(1)(a), 3(1);

2.

she is unable to make reasonable judgements in respect of all or any of the matters relating to her person or circumstances: s.33(1)(b); and
3. she is need of a guardian: s.33(1)(c).

Mrs Kirk was not called as a witness. No evidence was given of the circumstances in which the application was made or of the material before the Board upon which it acted. Mrs Williams, who thought the application was made by Arthur Block, the brother of the deceased, as well as by Mrs Kirk, said that the purpose of the application was to have her (Mrs Williams) removed as attorney under power of the deceased. Mr Block too was not called. I assume that the temporary guardianship order was made on some material and probably ex-parte. I do not think, however, that I should treat the fact of the order as a basis for inferring that the three pre-conditions existed at the date of the application or of the order. The Board directed that the order be reviewed on 2 November. The making of the order on 26 October 1988, however, did not of itself revoke the power of attorney in favour of Mrs Williams: Instruments Act 1958 s.117(3).
On the following day, 27 October, Dr Hankin wrote a report to the Board at its request regarding the deceased. In this report he set out his observations of her mental condition made between February 1985 and 17 May 1988 and concluded:
“It appears that she has deteriorated to a state of moderately severe dementia, and in my opinion, is unable by reason of this disability to make reasonable judgements in respect of all, or any matters, concerning her person, circumstances or estate.”
The terms of this sentence suggest that his attention had been directed to the requirements of the Act.
On 31 October Mrs Williams and Mrs Eggins brought the deceased to see Dr Hankin. It may be that they were then aware of the application before the Board for they sought his written opinion that the deceased was able to look after herself. Dr Hankin examined her and declined to give the opinion sought. He described in detail of her performance of the tests he administered. She was unable to state her age or date of birth; she was unable to give the total of 9 plus 5; her performance of proprioception tests was poor; she performed co-ordination tests clumsily; she was unable readily to follow light with her eyes. He said that she did not seem to understand his instructions and she suffered from fine tremor. All of this was recorded in his notes made at the time. In addition, he told me that she seemed not to be aware of her surroundings and was unable to find the door on leaving. He concluded that her condition was such that she would be unable to look after herself and would not be capable of making logical decisions.
On the same day, Mrs Williams wrote to the Board asking that she be appointed as guardian of the deceased. She wrote to the Board a second letter on the same day on behalf of the deceased setting out reasons why she, the deceased, should not be removed from her house.
On 2 November 1988 the Board heard the application for a guardianship order pursuant to s.22 of the Act. Mrs Williams did not appear. Under the Act the Board must be satisfied of the existence of the same three pre-conditions before making an order under s.22. The Board made an order appointing the Public Advocate the guardian of the deceased on the same terms as before with a direction that the order be reviewed in six months. It appointed the State Trustee administrator of the estate of the deceased pursuant to s.46(1). Further, the order of the Board included the following:
“That the Board makes a finding of fact that the enduring power of attorney dated the 28th day of September 1988 was not validly executed by the [deceased].”
The power to make such a finding or its validity was not the subject of argument before me. I note that the Board may revoke an enduring power of attorney where it is not in the best interests of the donor of the power: Instruments Act 1958 s.118. But this does not seem to have been the basis of the order. I will not treat this finding as evidence of the fact asserted or the order as evidence of the preconditions to which I have referred.
I conclude from all of this that the dementia which was described as mild on 10 May 1988 and moderately severe on 17 May 1988 had not improved on 31 October 1988. Dr Hankin was of opinion that the dementia which afflicted the deceased is a mental condition which is of slow development and its progress is steadily downhill. He said that, in general, dementia is a loss of cognition in the patient and that this may be manifest in one or more of the following functions - memory, perception, language or physical abilities. Where two or more of these functions are affected the condition of dementia is said to be present. The condition itself may be caused in a number of ways including senility, alcoholism and cerebrovascular disease. Dr Hankin said that of the four functions, the deceased displayed symptoms in all except language. He expressed the opinion, however, that her mental condition was such that it would not improve much even with a reduced alcohol intake and improved diet. He agreed that she might have some “good days” but he doubted if she had many of them.
Dr Hankin said he would be surprised if the deceased could, in September, have had the capacity required by law to make a will. The affidavit of Mr Pentilla describing the consultations of 15 and 28 September was read to him. His comment was to the effect that he could not understand the deceased performing as was there described.
No direct medical evidence in favour of capacity was proffered by the plaintiffs. Evidence was led from Peter Joseph McArdle, a medical practitioner who is a part- time lecturer in psychiatry at Monash University with a particular interest in geriatric psychiatry. Dr McArdle had not seen the deceased. He was, nevertheless, asked to give an opinion as to her testamentary capacity from a bundle of material and certain instructions provided to him. These materials and instructions are identified and set out in his affidavit. They represented the totality of the material available to the solicitors for the plaintiffs in May 1988 from the affidavits filed on their behalf and on behalf of the defendant, from notes taken from the Guardianship and Administration Board file and from certain correspondence from the office of Messrs Pentilla & Henderson. Broadly speaking, the instructions which were provided to him conformed to the evidence in chief of Mrs Williams and Mrs Eggins before me.
Dr McArdle recognised the diversity of opinion and observation regarding the behaviour of the deceased which was in the material and instructions before him. He assumed that all the informants were truthful. He sought, therefore, to accommodate these differences by inferring that the deceased was an uneducated and somewhat vulnerable personality who was very dependent upon her husband and that she was addicted to alcohol. For example, he said that her inability to perform simple calculations may be due to her lack of education; her inability to name the prime minister in May 1988 may have been due to lack of interest in public affairs. His explanation for her confused state when examined by Dr Hankin may be due to the fact that she was then intoxicated. Her ability to communicate with Mr Pentilla may be due to her improved diet and reduced alcohol intake when she was living with her daughter. He concluded with the opinion that it was quite possible that the deceased did have the capacity to execute her will in September.
I must confess that, while I have no doubt about the expertise of this witness or the genuineness of his opinion, it is of little assistance to me. He placed reliance on material which was not in evidence before me. I mention by way of example the Guardianship and Administration Board notes and the affidavit of Arthur Block who was not called. Furthermore, there was further material before me which in some cases supplements the material before him and in other cases erodes it. Furthermore, I am not obliged to accept as truthful all the evidence given before me.
He sought to reconcile Dr Hankin’s observations with those of Mrs Williams and Mrs Eggins to the effect that the deceased was mentally alert in the months after May 1988 and those of Mr Pentilla, by surmising that the deceased was intoxicated when she attended his surgery in May. Dr Hankin denied this and I accept his evidence. Dr McArdle’s explanations based on the poor education of the deceased are not borne out by the evidence. She apparently had some employment in the Repatriation Hospital in the late 1940s and early 1950s. I decline, however, to infer from the photographs produced in evidence, as counsel for the defendant urged, that she was employed there as a nurse. She worked in the 1950s and early 1960s as a machinist. So much appears from her tax returns for that period. It also appears from those documents that she was able to sign her name in a firm and competent hand which is a far cry from her manner of executing her will and the revocation of power of attorney 30 years later. The value of Dr McArdle’s evidence lies in his opinion as to the nature of the condition of dementia. He said that it is possible that there could have been a significant improvement and stabilisation in her mental capacities if she were not drinking alcohol and if she were eating regularly and being well-looked after. Dr Hankin agreed with this but his observations of 31 October showed that no such improvement had taken place. Indeed on that occasion her condition was worse than it was in May. Furthermore, such evidence as was available shows that the mental decline continued on into 1989 and up to 1990 when she left her home in Thomastown. In particular, there was no evidence of any lapse into heavy drinking in the weeks before the October consultation which might explain a severe downturn after 28 September. Dr McArdle accepted the difficulty of reconciling Dr Hankin’s observations on that occasion with any inference that her abstinence led to a significant improvement in her dementia. Indeed, he acknowledged that her inability to find the door of Dr Hankin’s surgery on 31 October was indicative of serious dementia. He acknowledged, too, that the indications of dementia may be masked so that a person may fail to notice it.
I, too, have wondered how I might rationally accommodate the contradictory observations of the deceased by Mr Pentilla and Dr Hankin. It was submitted by counsel for the plaintiffs that I might achieve this by finding that 15 September 1988 was a “good day” for the deceased. The difficulty with this is that she must have had good days also on 8 and 28 September before relapsing a month later. Moreover, there was no reason offered for an interruption or even a temporary reversal in the progress of her dementia. The alternative offered by Dr McArdle was that the occasions on which she was seen by Dr Hankin were in fact “bad days” when she was worse than normal. His explanation for this, that she was drunk on 10 and 17 May, is belied by Dr Hankin’s evidence which I have mentioned and by his observations of her on 31 October. A variant of this suggested by nobody was that the three days on which she was seen by Dr Hankin were bad days because she was then under great stress. In May, this may have been the product of the recent violence between her two children and in October of her apprehension that the Guardianship and Administration Board would take over her affairs and place her in a home. This, too, does not withstand scrutiny for there is no evidence that she was in fact under stress at these times or that such stress would have had an adverse effect on her mental capacities.
I return now to the evidence of the non-professional witnesses. The first observation I make is that there are some surprising omissions. I have mentioned Mrs Kirk and Mr Block who were not called. The latter swore an affidavit on behalf of the defendant but I was told by counsel for that party, with no objection, that there was good reason for not calling him. Counsel for the plaintiffs invited me to draw an adverse inference from the unexplained absence of Mrs Kirk. I will not do so. There is no evidence that she was in the camp of the defendant. To these absences may be added the personnel of the Guardianship and Administration Board, but it may be that there was some resistance from this quarter to the giving of evidence by reason of the secrecy provisions of s.9 of the Act. It may be also that there was just no one available who could give relevant evidence. I do not know. I will not draw an inference adverse to the defendant from the failure to call such a witness. Notwithstanding the reference to neighbours of the deceased in Mrs Ryan’s affidavit, none was called. I am unable to draw an inference from this because there is no evidence to suggest who might have called such a witness.
Of the witnesses who were called I was not impressed with the reliability of Mrs Williiams. I have remarked on certain aspects of her evidence. I approach also the evidence of Mrs Eggins with considerable caution. She tended to depreciate her mother’s drinking habits. It was she who said that the deceased’s drinking was reduced four weeks after she returned to live at Thomastown until it was only two cans of light beer per day and, after a further four to six weeks, to one can with lemonade per day. She spoke of the occasional lapse, referring to one such occasion when her mother had four cans of light beer in a day. I accept that the alcohol intake of the deceased was reduced after about April 1988 but not to the extent which Mrs Eggins and her mother said. The two witnesses called on behalf of the defendant were Mr Ryan himself and his wife. Mrs Ryan spoke of visiting the deceased and of her inability to cope when she stayed with them at their house at Reservoir. I accept this as substantially accurate. The evidence of her husband I treat with the same caution as that of his sister. My conclusion from the evidence of all these witnesses is that, throughout 1988 after April of that year, the deceased was confused, absent minded, forgetful and generally unable to cook or otherwise look after herself notwithstanding that her alcohol consumption was less than before. Her mental condition, as I accept it to be, is consistent with that described by Dr Hankin in May and October 1988.
I return then to the ultimate question in this case. Have the plaintiffs satisfied me on the balance of probabilities that on 15 September 1988 the deceased had the requisite capacity? Having regard to the whole of the evidence I am not so satisfied. Notwithstanding the favourable impression I have of the evidence of Mr Pentilla I cannot put to one side the evidence of Dr Hankin who had known the deceased over 25 years and that of the lay witnesses which support him. In the result, the application for probate of the will dated 28 September will be refused.
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[1998] VSC 60

4 September 1998

Key Legal Topics

Areas of Law

Succession Law

Legal Concepts

Testamentary Capacity

Dementia

Alcoholism