Willis v McKenzie

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 20730

ALANA WILLIS	Plaintiff
v
LACHLAN ARTHUR MCKENZIE (as independent representative appointed for the infant beneficiaries ROSE AMBER WILLIS and FRANK GEORGE WILLIS)	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2018
DATE OF JUDGMENT:	18 June 2018
CASE MAY BE CITED AS:	Willis v McKenzie
MEDIUM NEUTRAL CITATION:	[2018] VSC 325

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WILLS AND ESTATES – Informal will – Will kit utilised but only one witness – Doubt as to testamentary capacity due to diagnosis of schizophrenia and paranoid delusions – Principles to apply in the case of partial unsoundness of mind – Delusions did not result in a disposition that would not otherwise have been made or deprive a person with a good claim of a disposition – Testatrix found to have testamentary capacity and probate of will granted – Wills Act 1997 (Vic), s 9 – Banks v Goodfellow (1870) LR 5 QB 549 and Tipper v Moore and anor (1911) 13 CLR 248 applied – Bull v Fulton (1942) 66 CLR 295 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A S Bartfeld	Hayes Lawyers
For the Defendant	Ms U Stanisich	Moores Legal

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Background and procedural history............................................................................................... 1

Informal will.................................................................................................................................. 2
Application to the Court.............................................................................................................. 3

Evidence at trial.................................................................................................................................. 5

Relevant legal principles.................................................................................................................. 6

Informal will.................................................................................................................................. 6
Testamentary capacity.................................................................................................................. 8

Discussion......................................................................................................................................... 10

Testamentary capacity................................................................................................................ 10
Dr Cronin’s evidence........................................................................................................ 11
Medical records.................................................................................................................. 13
Conclusions from medical evidence............................................................................... 18
Form and content of the Will........................................................................................... 19
Evidence of witness........................................................................................................... 21
Other indications of competency.................................................................................... 22
Conclusion on testamentary capacity............................................................................. 23

Informal will................................................................................................................................ 23

Conclusion and orders.................................................................................................................... 25

HER HONOUR:

Introduction and summary

This case concerns a will which is informal because the testatrix signed it in the presence of only one witness. The plaintiff, who is the daughter of the testatrix and proposed administrator, commenced this proceeding seeking that the will should be admitted to probate although informal, and bears the onus on that question. After making the application, however, she also became concerned about the testatrix’s testamentary capacity. Ordinarily, the plaintiff as proposed administrator would also have the burden of proving capacity where any question arose, but that sits awkwardly with the fact that if the will is invalid for lack of capacity the plaintiff will take the whole estate by reason of intestacy. If the will is valid, and should be admitted to probate, then the plaintiff is one of three beneficiaries, the other two being her infant children. The defendant is the Court appointed representative for the children.

In the event, it has not become necessary to determine who bears the burden of proof on each issue as the parties now agree that the will should be admitted to probate. For the reasons that I now give, I agree with that joint submission.

Background and procedural history

The plaintiff (Alana) is the only child of Janet Louise Parker (Janet) who died on 30 May 2016 at the age of 61. Alana has two children, Rose and Frank Willis, who are aged 11 and 9 years.[1] At the time of her death, Janet was divorced and single. She had previously been married twice.[2] Her second marriage was to Kenneth Stanley Steele. That marriage was dissolved by decree nisi on 22 February 2005, which became absolute on 23 March 2005.[3]
[1]Affidavit of Alana Willis sworn 18 January 2017 (Second affidavit of Alana Willis), Exhibits AW7 and AW8.
[2]Affidavit of Alana Willis sworn 10 October 2016 (First affidavit of Alana Willis), Exhibit A, being a copy of the death certificate of Janet Louise Parker.
[3]Second affidavit of Alana Willis, Exhibit AW9.

Informal will

Janet signed a homemade will on 21 June 2010 (Will). The Will appears to be part of a ‘will kit’, and was completed by Janet without legal assistance. It was witnessed by only one witness, Matthew Panewka, a Home and Community Care Response Service Officer who attended Janet’s home on that day to install a key safe for a medical alarm.

Section 7 of the Wills Act 1997 (Vic) (the Act) sets out the requirements for a valid will. These include that the testator sign the will or acknowledge his or her signature ‘in the presence of two or more witnesses present at the same time’ (s 7(1)(c)) and that ‘at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other’. The Will does not comply with these two requirements, because it was signed by only one witness, although he did sign the will in Janet’s presence. Accordingly, it is an informal will.

The Will appointed Janet’s brother, Leonard Parker (described in these reasons and in the Will as ‘Len Parker’), as executor and bequeathed her estate to Alana, Rose and Frank in the following terms (I have italicised the word ‘Ken’ and added the words in brackets that follow): [4]
[4]First affidavit of Alana Willis, Exhibit B, being a copy of the Will of Janet Louise Parker.

I GIVE devise and bequeath unto
Alana Brooks-Willis
Rose Willis
Frank Willis
equal share of my total estate.
Ken (or Len), Andrew, Bob, Catherine Steel are not to benefit from my will & estate
State Trustees are not to benefit from my will or estate.
My brothers and sister are not to benefit from my will or estate or any friends or relatives other than my daughter and grandchildren.

It can be seen that the Will positively excludes certain named persons. One issue adverted to in the written submissions of the defendant is whether the first named excluded person is named as ‘Ken’ or as ‘Len’.[5] Counsel for the plaintiff assumed in her submissions that the name was ‘Len’.[6] In the copy Will that appears in the court book the first name could indeed appear to be ‘Len’. Counsel for the defendant expressed the view that the name could be ‘Ken’ but could not be certain without seeing the original Will. The original Will is on the Court file. I have given the parties an opportunity to inspect it, and they now agree that it clearly shows that the name is ‘Ken’. I will return to the significance of this clarification later in these reasons.
[5]Defendant’s submissions dated 9 March 2018, [31].
[6]Plaintiff’s submissions dated 9 March 2018, [38].

Application to the Court

Len Parker agreed to renounce his appointment as executor to allow Alana to seek a grant of probate of the Will on the basis that although it was an informal will, it was her mother’s last will and reflected her testamentary intentions. Alana made application to be appointed administrator of the Will pursuant to s 9 of the Act on 9 December 2016. That section provides:

9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—

if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

…
(5) The Registrar may exercise the powers of the Court under this section—
(a)where the Court has authorised the Registrar to exercise the Court's powers under this section; and

(b) where—
(i)all persons who would be affected by a decision under this section so consent; or
(ii)if consent is not given, the value of the estate does not exceed the limit set for the purposes of this section by the Court.

…

Alana initially sought that the Registrar of Probates exercise his powers to grant probate of the informal Will. The Registrar has been empowered pursuant to s 9(5) of the Act to exercise the powers of the Court by r 2.09 of the Supreme Court (Administration and Probate) Rules 2014. That Rule provides as follows:

2.09 Registrar's powers
The Registrar may exercise the powers of the Court under section 9 of the Wills Act 1997 if satisfied by affidavit that—
(a)all persons who would be affected by a decision under section 9 consent to those powers being exercised by the Registrar; or
(b)if consent is not given—the deceased person died leaving property not exceeding $150 000 in value.

Paragraph (b) of the Rule does not apply, as Janet died leaving an estate in the sum of $593,193.51, being the estimated value of her apartment and cash in the sum of $93,193.51. By letter dated 27 July 2017, the Registrar informed Alana that paragraph (a) also could not apply, as Alana’s children, Rose and Frank, are ‘persons affected by a decision under section 9’ and as infants they cannot consent. As a consequence, it is necessary that Alana’s application is considered by a judge of this Court.

The application came before her Honour Justice McMillan on 27 September 2017. By that stage, Alana had become concerned about the validity of the will, apart from its informal execution. Her concerns centred on the inclusion of her children as beneficiaries, because her mother had had no contact with them during her lifetime, and on the fact that her mother had suffered from schizophrenia for many years, characterised by hallucinations and paranoia. That mental illness had made Alana’s own relationship with her mother challenging, although there was never a complete estrangement. As a result of these concerns, Alana made enquiries of her mother’s former doctors, including her psychiatrist Dr John Cronin. His reply suggested that Janet may not have had testamentary capacity at the time she signed the Will.[7]
[7]Alana’s concerns are set out in her affidavit sworn 28 July 2017.

If Janet lacked testamentary capacity, the Will cannot be admitted to probate. Janet’s estate would then be administered under the rules of intestacy, with the consequence that Alana would be entitled to the whole of her estate. It follows that there was a potential conflict between Alana and her children in relation to the question of the validity of the Will. Alana quite properly recognised this difficulty, and proposed through her lawyers that an independent lawyer be appointed to represent her children.[8] On 27 September 2017 Justice McMillan acceded to that request and appointed an independent lawyer, Mr Lachlan McKenzie, on behalf of the infant beneficiaries Rose and Frank, and he became the defendant to the application. The orders made that day also provided for discovery, and for a confidential opinion to be provided by counsel for the defendant regarding the future conduct of the proceeding on the completion of discovery.
[8]Plaintiff’s Outline of Submissions dated 31 August 2017.

Counsel for the defendant subsequently filed her confidential advice to the effect that there should be a trial on the question of testamentary capacity. The proceeding came before me for trial on 5 March 2018 on referral from Justice McMillan.

Evidence at trial

The defendant called Dr Cronin and the witness to the Will, Mr Panewka, to give evidence. I will discuss their evidence in detail shortly. In summary Mr Panewka’s evidence was that there was nothing in Janet’s manner or appearance to suggest that she lacked testamentary capacity when he dealt with her on that day. Dr Cronin’s evidence in summary was that Janet’s delusional beliefs centred around her former husband and his children and she was otherwise competent.

Both parties have also provided detailed and helpful submissions on the oral evidence, and the documentary medical evidence.

Relevant legal principles
Informal will

Section 7 of the Act sets out the formalities required for a valid will:

7 How should a will be executed?
(1) A will is not valid unless—
(a)it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

(2) A statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.
(3) Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(4) Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity

As noted earlier, the Court has the power to dispense with requirements for execution or revocation of a will that does not meet the requirements of s 7 of the Act. I set out again the portions of s 9 that are relevant:

9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—

if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

In Fast v Rockman,[9] Habersberger J approved authorities to the effect that to admit an informal will to probate the Court must be satisfied that the following three criteria have been established:

·There must be a ‘document’;
·The document must express or record the testamentary intentions of the deceased; and
·The deceased must have intended the document to be his or her will.[10]

[9][2013] VSC 18.

[10]Ibid [46]. Cited with approval in Rowe v Storer [2013] VSC 385 [32] per McMillan J.

Habersberger J also observed that while the person seeking to propound an informal will must establish the requisite elements on the balance of probabilities, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[11] That principle is to the effect that reasonable satisfaction, i.e. satisfaction on the balance of probabilities, is a state of mind to be attained having regard to the nature and consequence of the facts to be proved. Applying that principle to the admission of an informal will to probate means, because of the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to her actual intentions, that the burden of proof should not be discharged by ‘inexact proofs, indefinite testimony, or indirect inferences’.[12]
[11](1938) 60 CLR 336.
[12]Ibid 362, per Dixon J.

Habersberger J also cited with approval the observations of Hollingworth J in the Estate of Peter Brock as follows:[13]

Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator’s true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament’s clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.
Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.
…
Whilst other cases can provide a guide to the types of situation in which s 9 can operate, each case ultimately depends on its own facts.[14]
[13][2007] VSC 435.
[14]Ibid [19], [20] and [23] per Hollingworth J.

Testamentary capacity

There is no presumption of testamentary capacity in the case of an informal will, unlike the presumption of capacity that applies in the case of a formal will. As noted earlier the burden of proving capacity would ordinarily lie on the plaintiff, as she seeks to prove the Will, although in practical terms it has been assumed by the defendant.

The question that arises in this case is whether the delusions that Janet had suffered in the past, and may have been suffering from at the time she made her informal will, deprived her of testamentary capacity. The impact of delusion in relation to testamentary capacity where the testator is otherwise able to manage his or her affairs was authoritatively considered in Banks v Goodfellow, a unanimous four bench decision of the English Queens Bench.[15] The court there concluded that a testator does not lose testamentary capacity by virtue of a partial unsoundness of mind unless that unsoundness disturbs the exercise of the faculties necessary to make a will or was capable of influencing the content of the will.
[15](1870) LR 5 QB 549.

The court there identified the necessary faculties to make a will where the testator suffers from a partial unsoundness of mind as being:

· the capacity to understand the nature of a will and its effect;

· the capacity to understand the extent of the property the subject of the will;

· the capacity to understand and appreciate the claims to which he or she ought to give effect; and

· that ‘no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’.[16]

[16]Ibid 565.

The High Court has approved the requirements for capacity as specified in Banks v Goodfellow in a number of cases, being at least Tipper v Moore and anor,[17] Bailey v Bailey,[18] and Bull v Fulton.[19] The facts in Tipper v Moore and Bull v Fulton are particularly relevant to this case, as both concerned a testatrix who was said to suffer from delusions, but in other respects to have the capacity to manage her affairs. The Court in Tipper v Moore held that ‘delusions are only material to the question of testamentary capacity if they are connected with the dispositions in the will’.[20] In that case, the Court held that the delusions in question were not connected with the dispositions in the will and upheld the grant of probate. In Bull v Fulton, the testatrix had previously included as beneficiaries nephews who acted as her solicitors. She excluded them after forming the view, which the Court held to be a delusion or due to failure of memory, that they had been guilty of deceit or forgery. The Court held by majority that that delusion was connected with the dispositions in the will in question, and set aside a grant of probate of the will. In reaching that conclusion, Williams J in the majority held in relation to the onus on the question of capacity that:

…where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it.[21]

[17](1911) 13 CLR 248.

[18](1924) 34 CLR 558, 566-7 per Knox CJ and Starke J.

[19](1942) 66 CLR 295.

[20]Ibid 250 per Griffiths CJ, 251-252 per Barton J.

[21]Ibid 343 per Williams J.

There is no dispute that the medical evidence in this case does throw a doubt on Janet’s competency to make the Will, and, accordingly, I am required to be ‘satisfied affirmatively’ that she did have testamentary capacity when she made it.

Discussion
Testamentary capacity

The plaintiff raised concerns in her affidavit of 28 July 2017 as to her mother’s testamentary capacity for two, or possibly three, expressed reasons. The first is that Janet included her grandchildren as beneficiaries in their own right although she had never met them or contacted them in other ways, or expressed a desire to be part of their lives. Alana’s evidence is that when her mother made the Will in 2010, she was aware that Alana had two small children but she had no recent photographs of them and had ‘expressed no real desire to know anything about them’.[22]
[22]Affidavit of Alana Willis sworn 28 July 2017 (Third affidavit of Alana Willis), [20].

The second reason arose because of Janet’s longstanding history of mental illness, and diagnosis of schizophrenia characterised by paranoia and hallucinations. This led to limited contact between Alana and her mother from Alana’s infancy. At times, Alana was also directly exposed to the symptoms of her mother’s mental illness. On making inquiries of Janet’s medical practitioners, Alana found references to her mother’s mental illness in her medical records, including references to possible delusional beliefs about persecution in 2010, the year in which the Will was made. She also received a written reply from Dr Cronin, her mother’s treating psychiatrist which aroused concern because he reported that there was a significant chance that Janet may not have had testamentary capacity as of 21 June 2010, the day on which the Will was signed and witnessed by Mr Panewka. Dr Cronin also reported that Janet had spoken of ‘children’ plotting against her, which led the plaintiff to be concerned that her mother may have confused her grandchildren with her only child, the plaintiff.

It may be that the plaintiff also was concerned about her mother’s testamentary capacity because at a time when she talked about dying, which from the context was in 2010, she had told the plaintiff that she would receive all her money and belongings.[23] The Will, by contrast, divides Janet’s estate into three.
[23]Ibid [21].

It was appropriate for the plaintiff to ask the Court to determine the question of capacity, and to appoint a representative for her children, given these concerns. In her written submissions before trial, counsel for the plaintiff submits that ‘the (medical) evidence has failed to definitely give rise to a finding that the deceased lacked the requisite testamentary capacity’.[24] This is not the test. The Court must be positively satisfied that Janet had testamentary capacity. Counsel for the defendant makes a submission that that test is satisfied. She submits that the evidence proves ‘on the balance of probabilities that…(t)he deceased had the requisite testamentary capacity to make the informal will’.[25] For the reasons I now set out, I agree.
[24]Plaintiff’s Submissions dated 9 March 2018, [63].
[25]Defendant’s Submissions dated 9 March 2018, [55].

Dr Cronin’s evidence

First, and critically, Dr Cronin’s evidence dispels the concerns that arose from his initial response to Alana’s solicitors. In that initial response Dr Cronin stated that Janet had consulted him on 13 occasions, nine of which occasions were in the period 11 January 2005 to 5 January 2006.[26] He saw her again on one occasion in 2008 (14 January 2008), two occasions in 2010 (30 September 2010 and 11 November 2010) and on 15 January 2014. Dr Cronin stated that because of this pattern he had no direct knowledge of her mental state as at 21 June 2010.
[26]Third affidavit of Alana Willis, Exhibit AW-12, being the letter dated 23 March 2017.

He stated that Janet suffered from ‘a chronic schizophrenic disorder’ and that she was ‘irregular in her attendance of psychiatrists and mental health clinics over the years’. He continued that Janet ‘acknowledged paranoid delusions intermittently’. In relation to the consultation most proximate to the date on which she signed the Will, he stated:

(w)hen I saw her on 30 September 2010 she mentioned her beliefs that people were getting into her house and poisoning her, that her ex-husband and children were plotting to get her out of her own home, and that she was not drinking tea or coffee in case it was poisoned.

He concluded ‘(i)n my opinion there is a significant chance that she did not have testamentary capacity as of 21 June 2010’.

In his evidence at trial, Dr Cronin testifies that the focus of Janet’s delusions was in relation to her ex-husband and his children. He says that Janet had never told him anything to suggest that Alana or her children were the subject of any delusions. Janet had mentioned her daughter and grandchildren to him only in passing, but he remembers that she had told him she had a daughter living in Perth and two grandchildren, and that she showed a ‘positive regard towards them’. [27]
[27]Transcript of Proceedings, Willis v McKenzie (Supreme Court, S PRB 2016 20730, Associate Justice Lansdowne, 5 March 2018) (Transcript) 9 [16]-[29].

Dr Cronin clarifies in his evidence at trial that his reference to ‘children’ in the portion quoted above from his letter of 23 March 2017 was a reference to the children of Janet’s ex-husband, not to Alana or Alana’s children.[28] In relation to Janet’s functioning on a day-to-day basis, Dr Cronin’s evidence is that:

She function (sic) reasonably well. She was able to look after herself and attend to activities of daily living and had no – no significant impairment in day-to-day life. [29]

[28]Ibid 10 [3]-[8].

[29]Ibid 10 [14]-[17].

Dr Cronin’s evidence is that he reached the conclusion stated in his letter of 23 March 2017 because he thought it likely that as at the date of the Will Janet was ‘holding paranoid delusions in relation to the ex-husband and his children’.[30] Significantly, his evidence is that apart from these delusional beliefs there was no reason to doubt her testamentary capacity, and it is likely she had that capacity. In particular, she could have held those delusional beliefs but still be thinking clearly about her own daughter and her daughter’s children.[31]
[30]Ibid 10 [22]-[24].
[31]Ibid 10 [25]-[30], 11 [19]-[22].

Medical records

The medical records in evidence show that Janet had a number of serious physical medical problems, in addition to her psychiatric condition.[32] They also show that she could be pro-active in seeking help these problems. For example, the occupational therapy records of Caulfield Community Health Service in evidence show that Janet had had previous contact with that service in 2008, but contacted them again (described as a ‘self referral’) in March 2010 to obtain further assistance.[33] It was as a result of that contact that she was assessed by an occupational therapist later in March and April 2010, who then obtained funding for the installation of a personal alarm for her at her home.[34] Mr Panewka attended on 21 June 2010 to install the key safe for that alarm, and explain its operation to her.
[32]Third affidavit of Alana Willis, Exhibit AW-10, and as produced by the plaintiff on discovery;
Court Book, 81-207.
[33]Ibid 96.
[34]Ibid 112.

Notwithstanding observations that can be made of this type, I approach the medical records with some caution, because they note that Janet changed general practitioners frequently, and suggest that she did not always attend appointments. For these reasons, it cannot necessarily be said, at least without explanation from her medical practitioners, that the records in evidence represent an exhaustive account of Janet’s health in the year she made the Will.

The medical records note medical interventions in Janet’s life prompted by indications of psychiatric disturbance in April, August and November of that year, 2010. Her appointments in that year with Dr Cronin were in September and November, although neither his evidence nor the medical records show when she or someone on her behalf sought those appointments. The records also record a number of occasions in late 2010 on which Janet told her then general practitioner things that about her ex-husband and his children, which on their face may have been delusional.

On 21 April 2010 a record completed by Ambulance Victoria shows that Janet had herself called an ambulance for breathing problems.[35] It seems she was admitted to the Alfred Hospital as a result for a few days.[36] The ambulance crew noted that she was unkempt with bizarre speech content. After examination and taking a history, the crew assessed her as having had a psychiatric episode. Janet told the ambulance crew that she had been sleeping better recently, ‘since the priest had performed the exorcism and got rid of the demon in her bedroom’. There is no further clarification in the records as to who the demon was, and in particular whether or not it was related to any person in Janet’s life, and why the exorcism (if one indeed had taken place) was sought.
[35]Ibid 114-115.
[36]Ibid 118-119.

By contrast to what appeared to the ambulance crew as a florid episode, Janet had also spoken on that day, 21 April 2010, to the occupational therapist at Caulfield Hospital. The therapist’s notes do not show any concern for Janet’s mental state. They record Janet saying that her ex-husband Ken had had a heart attack yesterday, and she had gone to hospital to be with him (by way of explanation as to why she was not at home for a scheduled appointment the day before).[37]
[37]Ibid 99.

There are multiple references to Janet’s statements about her ex-husband and some to her daughter in the occupational therapy notes. Some examples follow. At what seems to be the initial assessment on 17 March 2010, Janet stated that she had no contact with her daughter and that she was divorced from her second husband, but that they were ‘partners again’, that he is a multi-millionaire and purchased her house for her, and that he expects her to visit him in his nursing home at least three days a week. Janet said there was resentment from his children towards her because of her schizophrenia.[38] By contrast, only a week later on 24 March 2010 Janet told the therapist that she had had to change her telephone number because she didn’t want to be contacted by Ken anymore.[39] Janet told the therapist on 28 March 2010 to ring three times and she would answer the call on the third occasion only, because she wanted no contact from Ken.[40] On 6 April 2010 she told the therapist that she needed money for medication, Ken had given her $50 which she would use for that purpose, and that she had a new telephone number because Ken’s son had been calling her with abuse ‘as she is Catholic and they are Protestant’.[41]
[38]Ibid 101.
[39]Ibid 104.
[40]Ibid 107.
[41]Ibid 108.

The next occasion on which medical intervention is shown in the records as sought for a psychiatric condition is 24 August 2010. The record in evidence is a Psychiatry Intake Assessment. How this Assessment came about is not entirely clear, but it may have been as a result of a telephone call from a private psychiatrist, Dr Kaplan.[42] The record states that Dr Kaplan had diagnosed Janet with schizophrenia approximately 20 years ago (i.e. in 1990), that she had not seen him for 15 years but had recently re‑engaged with him, and was next to see him on 23 September 2010. There is no indication that Janet did so, or the relationship if any between Dr Kaplan and Dr Cronin, whom she did see on 30 September 2010.
[42]Ibid 124, page 3 of 10.

The Assessment records that Janet had presented to Dr Kaplan’s office with concerns that her former husband and his family were conspiring with her neighbours and plotting to kill her. Other portions of the Assessment state that Janet believed that her neighbours had been entering her home, ‘messing about’ with her medications, stealing her belongings and poisoning her food. Janet had contacted the police and real estate agent with these concerns. Janet also told the assessor that her ex-husband may have placed a bug inside her unit.

The assessor apparently interviewed Janet at her home on this occasion. The assessor records that Janet was not dishevelled in appearance, her home environment was ‘clean and well’, and Janet was easily engaged in conversation, and pleasant and co‑operative. The Assessment describes Janet’s beliefs about her neighbours and ex‑husband as delusional, but notes that Janet displayed adequate insight into her condition, believing that she has a psychotic illness and requires medication. The Assessment concludes that a recent reduction of Janet’s medication, after being stable for 20 years, ‘would most likely be the trigger for increasing psychotic symptoms’. The medical records in evidence do not show when the medication was reduced.

The CATT unsuccessfully attempted contact with Janet again the next day, 25 August 2010, and interviewed her again on 26 August 2010 at the surgery of her then general practitioner. She was assessed again in detail the following day, 27 August 2010, at her home. The assessor reports that she was pleasant and co-operative. At that interview, she denied having the beliefs that her life was at risk at the hands of her ex-husband, and indeed stated that she was close to him, seeing him two to three times a week. She said that they were thinking of getting married again but faced hostility from his children. She said she was estranged from her daughter whom she believed was ashamed of her due to her diagnosis of schizophrenia.[43] The assessor on 24 August 2010 had recorded that Janet had a daughter living in Perth and raising a family, but that Janet had no contact with her daughter because her daughter ‘does not understand schizophrenia’.[44] It may be then that the word ‘estranged’ did not emanate from Janet herself, but from the different assessor on the second occasion.
[43]Ibid 135.
[44]Ibid 122.

The next intervention shown in the medical records by reason of a psychiatric condition occurred on 26 November 2010. This was a follow up by the ACAT team as a result of a telephone call from the Magistrates’ Court after Janet attended seeking an intervention order against her ex-husband, and reportedly saying bizarre things, including that her ex-husband was poisoning her.[45] The ACAT team rang Janet’s then GP, Dr Richard Camm (whom she first saw on 10 November 2010). His records show that Janet told him on 19 November 2010 that her husband was putting oxycontin into her coffee, but that she is feeling much better off coffee.[46] Janet had also seen Dr Cronin shortly before these events, on 11 November 2010.
[45]Ibid 142.
[46]Ibid 73.

Dr Camm’s records show that Janet consulted him again on 30 November 2010, 3 December 2010 and 13 December 2010. On 30 November 2010, she reported that her ex-husband’s partner had been coming into her house and items had gone missing, although no-one was now entering after she changed the locks. She said that her next appointment with Dr Cronin was to be on 16 December 2010. The notes of Janet’s consultation with Dr Camm on 3 December 2010 do not record anything relating to her mental condition. On 13 December 2010 she told Dr Camm that no further people are coming to the house, she is no longer being followed and has no worries currently.[47] From Dr Cronin’s evidence, it appears that Janet did not attend an appointment with him on 16 December 2010.
[47]Ibid 72.

Further consultations with Dr Camm and other doctors at that practice continue until 18 January 2011, at which point the records from that practice cease. The only further entry suggestive of psychiatric disturbance in these consultations is on 29 December 2010 when Janet is recorded as saying that her ex-husband is ‘giving me hell’ and that she believes he is getting into the house and putting something into her food to make her feel tired. She is reported as saying that these problems resolved after getting her locks changed, and that she cannot afford to see a psychiatrist.[48]
[48]Ibid 71.

Consistent with Dr Cronin’s evidence, there is no indication in the medical records that Janet held any delusional belief in respect of her daughter, merely that she had limited contact with her due to her own mental illness. The plaintiff herself recounts only one episode when her mother expressed paranoid thoughts about her, and that was in 1998.[49] Indeed, the plaintiff deposes that her mother trusted her enough to tell her when she was unsure about others, and that in 2010 they were on speaking terms.[50]
[49]Third affidavit of Alana Willis, [17].
[50]Ibid [18], [20].

Conclusions from medical evidence

Given that there were external interventions for signs of psychiatric disturbance in the year in which Janet signed the Will, both before and after that signing, I infer that on the balance of probabilities that disturbance was also present at the time Janet signed the Will. The question then becomes whether that disturbance affected Janet’s capacity to determine to whom her estate should be left on her death.

Dr Cronin’s oral evidence is the best evidence on this issue. He had treated Janet over a number of years, and although most of those consultations were in 2005-2006 he saw her again in September and November of 2010, and so can give direct personal professional observations of her condition in 2010 as it compared to, or was consistent with, her earlier condition. I find based on his evidence that Janet’s delusions centred on her ex-husband (from whom she was divorced in 2005, the year she started seeing Dr Cronin) and his children, and that she did not hold any delusional beliefs in relation to her daughter or her daughter’s children. When she spoke of her daughter and her daughter’s children it was with positive regard.

This is consistent with what the medical records show. The occupational therapy records suggest that Ken remained a central figure in Janet’s mind notwithstanding their divorce, and, if her accounts were true, was also still a central figure in her life. What Janet is recorded as telling the occupational therapist suggests that Janet did not always perceive Ken as malign to her, and indeed was sometimes favourably disposed towards him. The records of the external psychiatric interventions and comments made by Janet to her general practitioner (and to Dr Cronin) show, however, that on occasion she believed he and his children wished to harm her, or were adverse to her. On those occasions, those agencies regarded the beliefs and Janet’s actions arising from them as delusional, which is consistent with Dr Cronin’s evidence.

The medical records also suggest that Janet could be pro-active about seeking help, was compliant with medication, and had insight into her condition. This is consistent with Dr Cronin’s evidence that apart from her delusional beliefs about her ex-husband and his family, she was competent in day to day life. Further, that notwithstanding those delusional beliefs she would have been able to think clearly about her daughter and her daughter’s children.

The facts in this case are thus distinguishable from those in Bull v Fulton. In that case, the delusional beliefs led directly to the exclusion from the testatrix’s will of persons whom she had previously wished to benefit, and by virtue of their relationship to her had a good claim on her estate. Here, the delusional beliefs in question did not relate to the person who would otherwise have had a claim on Janet’s estate – her only child- and cause that person to be excluded. The Will in fact makes provision for that child, and to the extent that others are included, they are Janet’s grandchildren. The absence of contact between Janet and her grandchildren means that they would in all probability have had no legal claim on her estate had she not included them in the Will, but this does not make their inclusion any indication of lack of capacity. On the contrary, it is not at all unusual for a grandparent to make provision for grandchildren in his or her will.

To the extent that Janet included her grandchildren as beneficiaries she correspondingly reduced the entitlement of her daughter, Alana. However, in the absence of any delusional or paranoid thought about Alana at this time, I am satisfied that this allocation by Janet of her estate was not brought about by any unsoundness of her mind.

I conclude that the fourth element of the requirements of testamentary capacity as determined by Banks v Goodfellow, that the partial unsoundness of mind has not brought about a disposition that would not otherwise have been made, is here satisfied.

Form and content of the Will

The first three elements of testamentary capacity as identified in Banks v Goodfellow are capacity to understand the nature of a will and its effect; capacity to understand the extent of the property the subject of the will; and capacity to understand and appreciate the claims to which the testatrix should give effect. I consider that they are demonstrated by the acquisition and utilisation by Janet of a will-kit to make the Will, and by its form and content. In particular, I accept the submission of the defendant that the gifts to Alana and her children, being ‘the only natural objects’ of Janet’s bounty, shows that the ‘will is rational on its face and stands as evidence that (Janet) was able to weigh up the natural claims against her estate’.[51]
[51]Defendant’s Submissions [29].

In relation to the persons Janet expressly excluded from the Will, it is now agreed by counsel for the plaintiff and the defendant that the first person named as excluded in the Will is ‘Ken’, not ‘Len’. This supports a conclusion that the Will evidences clear thinking because there is not the duplication that would otherwise arise if Janet had sought to exclude her brother Len twice - both in this line, and in the final paragraph of the bequest portion of the Will, where she excludes her brothers and sister.

The question does arise, however, as to whether this list of excluded persons is the result of, or was influenced by, Janet’s delusional beliefs about her ex-husband and his children. This questions arises because I find on the basis of the surname ‘Steel’ at the end of that list of excluded persons, that ‘Ken’ means Janet’s ex-husband, and the other persons listed before the surname ‘Steel’ are his children. Given Janet’s delusional beliefs that, at least on occasion, Ken and his children were acting against her interests, it is entirely possible that this influenced her exclusion of them from the Will. However, as noted above, the application of the test from Banks v Goodfellow in Bull v Fulton, was to exclusions that are in breach of an otherwise good claim. Janet was divorced from Ken and his children were not hers. There is nothing to suggest that he or they had any claim on her estate in any event. For this reason, even if delusional beliefs about persecution by Ken and his children played a role in their exclusion from the Will, I do not consider that this detracts from the conclusion I have otherwise drawn that Janet had testamentary capacity in respect of the Will.

In any event, Janet expressly excluded other persons from benefit in the Will, being her brothers and sister, State Trustees, and other relatives and friends ‘other than my daughter and grandchildren’. Viewed in this light, it is possible that the exclusion of Ken and his children could have been merely one aspect of Janet’s desire to ensure that only her daughter and grandchildren would benefit. That desire is conventional and consistent with rationality.

Other aspects of the form and content of the Will also support a conclusion that Janet had testamentary capacity at the time she signed it. I accept the defendant’s submission that as Janet’s estate was simple, being her home and some cash in the bank,[52] the level of capacity required to make her will was not as high as that in the case of complex assets. The choice of Janet’s brother, Len Parker, as executor is conventional, as is the choice of direct descendants as beneficiaries. Each portion of the pro forma is completed in clear handwriting, including the words in the signature panel, and spare space is ruled out. I discuss other aspects of the Will that support both testamentary capacity and the requirements for admission of an informal will to probate under that section of these reasons.
[52]Defendant’s Submissions [34].

Evidence of witness

The witness to the Will was Mr Matthew Panewka, who attended Janet’s home that day after making an appointment with her by telephone to install a key safe for her government funded medical alarm, and explain the operation of the alarm. The purpose of the key safe is to hold spare keys for the home, so that an ambulance crew can enter if the homeowner is unable to let them in. Mr Panewka said that he would usually take 25 minutes to an hour, depending on the client, to explain the operation of the alarm.

He testified that it was a usual part of the explanation process for the alarm to require the client to ‘tell back’ what he or she needs to do, and that clients, including Janet, were required to sign a consent form for the installation of the key safe and to show they were happy with the alarm. Mr Panewka could not recall anything about Janet’s appearance or demeanour on the day he attended her apartment, but agreed that if there had been anything about her demeanour or appearance that caused him concern he would have called his manager. As he did not need to do so, he agreed that it was fair to say he had no such concerns.[53] He said that if a client was unable to repeat to him what he or she needed to do, or appeared unable to focus or engage, then that is something that would have prompted a reassessment, but that was not required in Janet’s case.[54]
[53]Transcript 16 [3]-[23].
[54]Ibid 17 [20]-[27].

Mr Panewka could not recall much of his encounter with Janet, other than that the key safe to her flat was wall mounted, and that towards the end of his visit she asked him to witness a document, saying that she had no one else to do that for her. He did not know it was a will. He identified his name and signature on the Will, and could recall being present sitting down in the dining-kitchen area when Janet signed the Will.

On the basis of Mr Panewka’s evidence I find that Janet did not exhibit any obvious signs of mental disturbance or distress on the day she signed the Will. I do not, however, consider that his evidence goes any further on the question of testamentary capacity. This is because the medical records show that Janet was often able to converse at her home and appear rational and engaged, despite suffering from paranoid thoughts at the same time.

Other indications of competency

There are other indications that Janet was able to look after her own affairs, including financial affairs, without the assistance of an administrator or guardian. These indications include that Janet lived alone, and there is nothing in the reports of the psychiatric interviews conducted in her home in August 2010 to suggest that her home showed signs she was not coping with daily life- indeed, to the contrary it was described as being ‘clean and well’. Despite her longstanding schizophrenia, Janet was divorced from her second husband Ken Steel (noted on the decree absolute as Kenneth Stanley Steele) five years before making the Will, in February 2005, without the need for a litigation guardian.[55] Further, in June 2015, five years after making the Will, she was apparently able to purchase the property she owned at the date of her death without the need for an attorney or administrator, as the transfer is signed by her alone.[56]
[55]Second affidavit of Alana Willis, Exhibit AW-9.
[56]Ibid, Part of Exhibit AW-5.

Conclusion on testamentary capacity

Having regard to all the evidence, I find that Janet suffered from schizophrenia characterised by paranoid beliefs that from 2005 were in relation to her ex-husband and his children, but that aside from those beliefs she was otherwise of sound mind, able to manage her affairs and make financial decisions.

I consider that all the elements of the test for testamentary capacity where there is partial unsoundness of mind, as posed in Banks v Goodfellow, are satisfied. In particular, I find that Janet’s delusional beliefs about her ex-husband and his children have not resulted in her making a disposition that would not otherwise have been made. I also find that by contrast with Bull v Fulton, those beliefs have not resulted in the exclusion of a person with an otherwise good claim.

On the basis of all the matters discussed above, I find that Janet that testamentary capacity when she executed the Will.

Informal will

The parties agree that the Will satisfies the requirements of s 9 for admission to probate. I accept that joint submission. Indeed in all respects, except for the presence of only one witness, the Will would on its face meet the formal requirements for a valid will. It is in writing, there is no doubt that is signed by Janet the testatrix, and from its content shows that she intended it to be her will. These same matters, and my conclusion above in relation to competency, establish on the balance of probabilities to the Briginshaw standard that the requirements of s 9 are met. The Will is a document and its content shows that it embodies Janet’s testamentary intentions and that she intended it to be her will. I reach those conclusions having regard to the following:

· The document used is a pro forma, which contains multiple references to it being used to make a will. In particular, the document is headed ‘This is the last Will and Testament’; the directions on the reverse are headed ‘Directions for Making a Will’; the backsheet begins ‘The Will of…’; the operative part begins with the printed words ‘I revoke all former wills and codicils made by me’; the section for the appointment of an executor contains printed words that refer to the payment of funeral and testamentary expenses and the death of the testator; the printed words ‘I GIVE devise and bequeath unto’ appear before the section that Janet has completed in relation to her beneficiaries; the signature panel refers to ‘the abovenamed Testator’ signing for her ‘last Will’.

· The document is completed in Janet’s own handwriting;

· She has clearly identified her appointed executor; and as her brother he falls within the class of persons often so appointed;

· The objects of her intentions i.e. her beneficiaries are clearly specified. The beneficiaries are the only direct descendants of the testatrix and she has also specified persons who are not to benefit;

· Janet has used the technical word ‘estate’ to describe her property;

· She went to the trouble of having her signature witnessed; and

· The fact that the plaintiff found the document among her mother’s personal possessions suggests that she regarded it as significant enough to retain.[57]

[57]Second affidavit of Alana Willis, [4].

Conclusion and orders

I will make orders for the admission of the Will to probate. I ask the parties to draw those orders, including appropriate orders for their costs.

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Briginshaw v Briginshaw [1938] HCA 34

[2018] VSC 325

18 June 2018