Fitzgibbons v Fitzmaurice
[2014] NZHC 710
•8 April 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-1463 [2014] NZHC 710
UNDER the Wills Act 2007 and the Administration
Act 1969
IN THE MATTER
of the Estate of Garth Hilton Hughes
BETWEEN
HAROLD PAUL FITZGIBBONS AS EXECUTOR IN THE ESTATE OF GARTH HILTON HUGHES Applicant
AND
AILEEN YVONNE FITZMAURICE Interested Party
Hearing: 1 April 2014 Counsel:
K R Pascoe for Applicant
S W Hughes QC for Interested PartyJudgment:
8 April 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 8 April 2014 at 1.45 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Nicholsons, New Plymouth for Applicant
Quin Law, New Plymouth for Interested Party
FITZGIBBONS v FITZMAURICE [2014] NZHC 710 [8 April 2014]
Introduction
[1] The application before the Court has been brought by Mr Fitzgibbons as executor of the will of Mr Hughes, who died in New Plymouth on 6 March 2013. The issue for determination is whether a suicide note left by Mr Hughes constitutes a valid will or codicil pursuant to s 14 of the Wills Act 2007 (the Act).
[2] Section 14 of the Act provides that the Court may make an order declaring a document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
[3] In determining this, the Court may consider the document, evidence relevant to the signing and witnessing of the document, evidence relating to the deceased person’s testamentary intentions, and evidence of statements made by the deceased person.
[4] In terms of those criteria, the handwritten suicide note left by Mr Hughes was signed by him but not witnessed by any person and was unaccompanied by any prior statements by him evidencing any intention to revoke his existing will.
Background
[5] Mr Hughes was born in 1925 and Mrs Fitzmaurice, the interested party and his only sibling, was born in 1929.
[6] Mr Hughes enlisted in the New Zealand Navy on leaving school and later returned to work on the family farm until it was sold. He never married or had a family and his one great interest in life appears to have been building model boats. He was described as a very private and independent person who did not like to accept help, although in his later years and as his health deteriorated, he did accept help from his neighbours, Mr and Mrs Pierce.
[7] When Mrs Fitzmaurice left school, she trained as a nurse and became a Territorial officer holding a commission in the New Zealand Army. In 1958 she left for England, where she nursed on a casual basis while waiting to be inducted into the
British Army as a commissioned officer. In 1962 she married. She and her husband had two children, born in 1963 and 1964. In 1965 the family emigrated to Australia to live in Melbourne. Mrs Fitzmaurice’s husband died in 2002 and she lives in a retirement village in Melbourne. She was aged 84 at the time of her brother’s death.
[8] Mrs Fitzmaurice and her brother maintained semi-regular contact over the years, initially by letter and mainly at her instigation, and subsequently by telephone. In later years, she had a plan to visit New Zealand every second year to see her brother.
[9] The Pierces came to live next door to Mr Hughes in 2004. Mr Pierce described their relationship as “being on reasonably friendly terms talking as neighbours do on a regular basis”.
[10] With advancing age, it is clear that Mr Hughes’ health began to fail dramatically and that the world appeared to be closing in on him in a frightening manner.
[11] Mrs Pierce said that, up until late-December 2012, Mr Hughes had been able to mow his own lawns and required only very occasional assistance. By the end of January 2013 it had become obvious that this was no longer the case. He was consistently very unwell and required hospitalisation three times in a short period of time. It was obvious he needed far more help and ongoing support than he had or they could give him. She said:
5.My husband and I were concerned at this development as we travel quite frequently. Apart from ourselves Mr Hughes seemed to see very few people. When I had gently raised with him the possibility of some additional assistance he was quite firm in his resolve that he did not need external help such as meals on wheels. However he was only able to read or watch television for very short periods of time due to a problem with his eyesight and apart from our brief visits each day which he appreciated he was on his own and clearly feeling vulnerable. He no longer drove his car and had ceased his one social outing a week which had been on Friday afternoons to the New Plymouth Club.
6.When he was discharged from his first hospital stay in January we felt we had to check on him every day. He appeared to have lost all of his confidence about the overall state of his health, was worried,
isolated and under a lot of stress as he was fearful of another heart turn. In short, he seemed depressed and anxious.
7.His second hospital stay began on the morning he knew we were leaving for a pre-planned three week holiday. …
8.I phoned and spoke to him several times as he had been flown to Waikato Hospital and as soon as he returned to New Plymouth I visited him. He asked me to phone Mrs Fitzmaurice, whom I had never met but whose number he had given me much earlier in case of any emergency to tell her what had been happening. A couple of days later he was discharged but he continued to feel dreadful and by the end of the week I had taken him back to A&E at his request and eventually he was readmitted.
[12] Mr Pierce’s evidence is similar. He said that in recent years he believes he and Mrs Pierce had more day to day contact with Mr Hughes than anyone else. During his three periods of hospitalisation in 2013, and before Mrs Fitzmaurice arrived about ten days before his death, Mr and Mrs Pierce were the only persons who visited him in hospital. During his last admission, they divided the visits between them, so that one or other of them was visiting on a daily basis.
[13] Both Mr and Mrs Pierce and Mrs Fitzmaurice attested to the fact that the relationship between Mr Hughes and Mrs Fitzmaurice, while fond, also had its moments. It appears that the siblings had always argued a good deal and that he regarded Mrs Fitzmaurice as “bossy”.
[14] Mr Pierce said of his knowledge of the relationship:
6.Several years ago [Mr Hughes] told me that his sister was coming to stay for a few days and when I responded that that would be nice for him his reply was that he wasn’t sure that it was because she was very bossy and that they argued. He blamed this on his view of their home life when they were young, he said his parents argued a great deal. He was some years older than his sister, and had left home to join the Navy just before his 18th birthday. When he returned his sister who had turned 17 had already left home to commence her nursing training and therefore they had effectively lived in different countries for most of their lives.
[15] It is clear, however, that, by the time of his third admission to hospital, Mr Hughes was feeling the need of his sister’s support. Of this, Mrs Pierce said:
9. Over his various hospital stays he had often talked about
Mrs Fitzmaurice, generally while I was keeping him company for
lengthy periods of time in A&E. He had always been very candid about their relationship. He was very proud of her ability, spoke of her nursing career with great respect and had an obvious affection for her children but his comments were always accompanied by his observation that she was inclined to be “bossy”. When pressed for further details it transpired that on her fairly regular visits to New Zealand, which he accepted were made for the purpose of maintaining good contact between the two, there was often some kind of difference of opinion before the end of the visits. His perception was that these appeared to start very easily, usually developed into a disagreement, often caused temporary rifts and finally after a bit of time/distance was re-established they would re-engage and carry on in their usual mode. Mrs Fitzmaurice generally needed to make the first move.
10.Although I had never met Mrs Fitzmaurice as we always seemed to be away when she visited I felt that it was still important to explain to him how easily siblings could fall out. Various things might be said and meant in good faith but because of the way in which they are expressed comments might not always be received in the manner intended. We agreed that the older brother/younger sister relationship combined with a younger sister who had a successful career when she had had to take charge and organise others could prove difficult for many males. They could easily be perceived as having a tendency towards what was viewed as bossiness and this could lead to problems. We laughed about it as I explained that my own brothers had a similar opinion of me!
11. Because of this background and following his request that I contact his sister we had several frank conversations about whether he wanted her to come over to New Zealand or not. Mrs Fitzmaurice was prepared to come but only on condition that it was his express wish – she did not want to travel to New Zealand unless Mr Hughes specifically requested that she do so.
12.It was obvious to me from my conversations with her that she was very aware that there was a strong possibility that the visit might not go totally smoothly but she understood that her brother really did need her help. He was frequently tearful by this stage, depressed and extremely worried about his future. He spoke about his concern that he would no longer be able to manage in his own home when he was discharged and he was therefore very keen for her to come. I passed this on to her and he confirmed it by phone in a conversation with her. It was on that basis that she made her decision to return to New Zealand.
13.I was with him at the hospital when he spoke to her again on the phone and she told him that she was coming. His face lit up, he was laughing and he was obviously incredibly relieved that she would arrive within the next day or so. His whole demeanour perked up markedly. He had absolute faith in her ability to manage everything necessary on his behalf.
[16] Mr Pierce said it was obvious both to he and Mrs Pierce, and also to Mr Hughes, that on being advised by the doctors caring for him at the hospital, that they could do no more for his failing heart, Mr Hughes would be unable to manage living on his own any longer. Of this, Mr Pierce said:
11. He was quite distressed about losing his independence but when I twice asked him how he felt about moving into a rest home his answer was to the effect that he didn’t have an option as he struggled to get to the toilet in the hospital and that was right next to his room. He was also upset about losing the use of his car which he really loved. He had bought his Toyota car new in 1984 and kept it in as new condition. The warrant of fitness expired during his last day in hospital and he got me to take it and get a new one, but his drivers licence had also expired and he was aware that he would not pass a test to renew it.
12.He seemed very happy when his sister arrived and I was really impressed when I finally met her as she set about trying to do the best she could for his welfare.
13.He would have liked to go into Chalmers Rest Home as it was nearly next door to his house, but unfortunately there were no vacancies there. So his sister found a place that she thought he would like and she asked my wife and myself to go and have a look and see what we thought. The rest home in question was Port View. We went to have a look and found it to be a nice place with a good sized room with en suite that had views into the harbour off a deck outside the room. As an ex sailor he loved the sea and ships.
14.Later that afternoon I went to see him in the hospital and told him all about the room and the rest home and he seemed to me to be quite happy about it.
[17] However, it transpires Mr Hughes was not able to go straight from hospital into the resthome, which Mr Pierce felt would have been beneficial, because he had not been assessed by a social worker for eligibility for government assistance. Mrs Fitzmaurice had arrived some days before, and after her brother was discharged from hospital she took him to an appointment with Mr Fitzgibbons and afterward to visit the Port View Rest Home. Mr Pierce said when Mr Hughes came home from visiting the resthome, he had the impression that he was quite happy with the arrangement that had been made.
[18] Mrs Fitzmaurice’s evidence, however, was that by about 2.30 that afternoon she could see her brother was struggling and unhappy. As always seemed the case, that unhappiness invariably focused on her and took the form of resentment while at
the same time reflecting neediness. An answer was required by the Chalmers Rest Home by the following morning, as others were interested in taking the room. Mrs Fitzmaurice told her brother that if he decided to go to the rest home, she would extend her stay for another week to ensure he was completely settled but if he decided to stay at home she would go back to Australia as booked the following week. She told him there was nothing more she could do if he were to remain at home. It is clear that it was out of the question for Mr Hughes to remain in his home and Mrs Fitzmaurice’s ultimatum provoked an angry outburst from Mr Hughes in which he accused her of “bossing” him around. Mrs Fitzmaurice went out for the evening but returned about 7.00 pm. She had some minor conversation with Mr Hughes on her return but nothing of moment. She then went to bed and to sleep. In the middle of the night or early morning, she woke to go to the bathroom and heard a very loud engine noise. It was the engine of Mr Hughes’ car in the garage adjoining the house. Mrs Fitzmaurice called 111 and both ambulance and fire brigade attended and attempted to resuscitate Mr Hughes. However, their efforts were unsuccessful.
[19] The suicide note was subsequently found beside Mr Hughes in his car and delivered by police to Mr Fitzgibbons, his executor.
[20] The next day Mrs Fitzmaurice found a birthday card she had bought for Mr Hughes’ 88th birthday and in which she had written birthday wishes. Mr Hughes had obviously opened the card and put it on display. The card is annexed to her affidavit.
The application and the challenge to it
[21] Mr Fitzgibbons is the surviving executor named in Mr Hughes’ will dated 17
November 1999. The other named executor, Mr Chilcott, died in 2011.
[22] In his supporting affidavit, Mr Fitzgibbons records his opinion that the handwritten note left by Mr Hughes is a codicil to his will, as it meets the requirements of s 8 of the Act.
[23] Section 8 defines a will as a document that is made by a rational person disposing of property to which the person is entitled when he or she dies.
[24] Mrs Fitzmaurice has challenged Mr Fitzgibbons’ opinion that Mr Hughes was of sound mind when he wrote the note and took his life. The submission on her behalf is that the note was “in fact a cry of despair from a man who was suffering from anxiety, depression and likely dementia” and the Court cannot be satisfied “... that the document expresses the deceased person’s testamentary intentions” and is in compliance with s 14(2) of the Act.
[25] A challenge having been raised, and there being evidence available to the Court raising doubts about Mr Hughes’ testamentary capacity, the onus is on Mr Fitzgibbons, as the executor seeking probate of Mr Hughes’ will, to satisfy the Court that Mr Hughes did have testamentary capacity.1
[26] Mr Fitzgibbons was represented at the hearing by Ms Pascoe, who made brief submissions and essentially adopted a neutral stance.
The meeting with Mr Fitzgibbons on 5 March 2013
[27] On 28 February 2013 Mr Fitzgibbons received a message asking him to contact Mrs Fitzmaurice, which he did on 1 March 2013. An appointment was made for Mrs Fitzmaurice to bring Mr Hughes in to discuss his affairs with Mr Fitzgibbons, as the remaining executor in Mr Hughes’ will and his attorney under an enduring power of attorney (property). The meeting took place in Mr Fitzgibbons’ office on 5 March, the day or the day before Mr Hughes’ death (it being uncertain as to whether death occurred before or after midnight).
[28] Mr Fitzgibbons had never met Mr Hughes prior to the meeting and had not acted as his legal advisor before that date. His evidence about the meeting, the background to it, his impressions of Mr Hughes and his opinion about the validity of
the suicide note as a statement of testamentary intention is set out below:
1 Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
5.I telephoned Mrs Fitzmaurice [on] 1 March 2013. Mrs Fitzmaurice advised me that her brother aged 88 had been hospitalised, that he was frail but mentally sound, and that while he would have preferred to return to his own home, it seemed to her that he would probably require nursing-home care. Mrs Fitzmaurice advised me that she lived in Australia and was 84 years old, and that there was no other family. It was agreed that Mrs Fitzmaurice and Mr Hughes would call on me on Tuesday 5 March 2013. In the meantime I was to speak to a hospital social worker about Mr Hughes’ situation.
6.I spoke to the social worker on Monday 4 March and was told that Mr Hughes had been assessed as not requiring resthome care, and accordingly would not qualify for subsidy even if the value of his assets fell below the standard threshold level.
7. I met with Mr Hughes and Mrs Fitzmaurice as planned on Tuesday
5 March 2013 at 12.30 pm. I was told that Mr Hughes had accepted the need for resthome care due to his health and that he and his sister had visited and inspected several homes. It had been decided that day that he would go to Portview Resthome. Mr Hughes was aware that he would have to pay his own way, and there was discussion on setting up automatic payments and about his need to sell his car, his belongings and the contents of his home, and the home itself. Mrs Fitzmaurice undertook to do as much as she could to assist her brother in those matters before her return to Australia, and indicated that she might be able to stay another week. I produced Mr Hughes’ current Will and its contents were discussed openly, and I produced the Enduring Power of Attorney in my favour. Mrs Fitzmaurice confirmed that there was no other family, and that it was unlikely she would be able to return to New Zealand given her own age and state of health. Mr Hughes confirmed that he was happy for me to assume responsibility for his financial affairs and to report to Mrs Fitzmaurice on a 6 monthly basis. Mr Hughes was to go to Portview in the current week.
8. The duration of our meeting was 50-60 minutes.
9.My impression of Mr Hughes from that meeting was that he was a quiet man, physically frail but mentally alert, that he seemed quite dispassionate about the impending changes but understood and accepted the need for them, that he appreciated the present support from his sister, understood that it could not continue to be provided as an ongoing basis, and that he was resigned to the changes which were to occur. I had no reason at all to doubt his mental capacity or his understanding of his situation and the purpose of our meeting.
10.On 6 March 2013 I was informed by Mrs Fitzmaurice of Mr Hughes’ death. On 7 March I was informed by the Police that a note had been left by Mr Hughes addressed to me. That note is the document dated March 5 referred to in paragraph 2 above which I consider to be a Codicil to the Will of 17 November 1999.
11. It will be seen that the note is addressed to me personally. The envelope in which the note was found is attached and marked “C”. I believe it is addressed to me as Mr Hughes executor, and the
reference to “my previous agreement” from which Mr Hughes’ sister is to be “completely taken out” to be a reference to Mr Hughes’ Will, given Mr Hughes’ review of the Will on the day on which the note was written, I understand the direction that “all my assets are to (be) given to the Salvation Army” to be an amended disposing provision, substituting the Salvation Army for Mr Hughes’ sister (and in the event of her prior death, for her children). I have no doubt that Mr Hughes had a full understanding from the earlier discussions of the extent of his assets and of the moral claims of potential beneficiaries. I have no reason to assume that Mr Hughes’ mental state had altered and therefore assume that he continued to be of sound mind and understanding.
The suicide note
[29] The note left by Mr Hughes reads as follows:
March 5
Dear Paul
Sorry to mess you up since seeing you. I and my sister have had a serious disagreement and I want her to be completely taken out of any previous agreement.
Of course I won’t be going to any rest home now and all my assets are to
[be] given to the Salvation Army. Yours
GH (Pat) Hughes
[30] It is not in issue that the “Paul” to whom the letter was addressed is
Mr Fitzgibbons and that the note was intended for him.
Applicable law
[31] Ms Hughes provided a helpful analysis of apposite precedents relating to testamentary capacity, referring first to the classic statement of Cockburn CJ in Banks v Goodfellow on the elements of testamentary capacity:2
It is essential to the exercise of such a power that a testator shall understand the nature of the Act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property
2 Banks v Goodfellow (1870) LR 5QB 549 at 565.
and bring about a disposal of it which, if the mind had been sound, would not have been made.
[32] That core statement of Cockburn CJ has been repeatedly cited with approval in decisions of the New Zealand courts considering such issues.
[33] In Stewart v Meads, Hammond J was required to determine whether an elderly woman who had made a number of wills, the last of which purported to exclude her closest relative, previously the recipient of the majority of her estate, was deluded, not in mental health terms, but in her ability to make a rational and balanced decision about the disposition of her estate.3 The following passages from
Hammond J’s judgment are on point:4
… I think it is important to distinguish between two things. There is a difference between the ability of a person of advanced years to cope with settled and confined domestic matters relating to their everyday needs, and the ability, on the other hand, to deal with the pressures and complexities which entered Mrs Rhodes life in relation to her estate and business affairs.
And further at paragraph [31]:
In the first place, it is plain on the affidavit evidence that by the critical date Mrs Rhodes’ relationships with people had become increasingly volatile and erratic. Although it is plain that historically she was a woman who knew her own mind, in the period under consideration she suddenly took a quite irrational dislike to Mr Stewart’s wife Hillary (a friend of many years standing); she abruptly turned on Mr Meads and his family (who had steadfastly supported her over the years) … In short, she became querulous. She tended to cut people off; she was becoming somewhat mistrustful; and she could not objectively determine who her friends and supporters were. … Mrs Rhodes was greatly concerned to try and stay in her own home. But as so often happens, small or misperceived things came to assume major or misperceived proportions.
[34] In terms of what constituted deluded behaviour in Mrs Rhodes’ case,
Hammond J described the situation thus in paragraph [39]:
A “delusion” here is really a term of art. It is not insanity in mental health terms, rather it refers to things which pervert a testator or testatrix’s ability to appropriately weigh claims that are naturally pressing. Sometimes this is to be found in fixed or irrational beliefs that the testatrix will not depart from.
3 Stewart v Meads HC Wellington; CP25/02, 7 March 2002.
4 At [16].
Mr Hughes’ mental health prior to his death
[35] Against Mr Fitzgibbons’ impression of Mr Hughes’ lucidity and rationality, gleaned through a 50 to 60 minute interview, is evidence of a different nature from both Mr and Mrs Pierce and from Mrs Fitzmaurice.
[36] Mrs Fitzmaurice described her brother’s condition as having deteriorated markedly since she had last seen him. She said it was immediately clear that her brother was unable to continue living in his own home unsupported. He was unable to make a decision and his willingness to countenance the possibility of having to leave his home vacillated wildly in the days leading up to his death.
[37] The noticeable difference in her brother and his personality was described by
Mrs Fitzmaurice as follows:
In Pat’s case, his naturally reserved personality was a perfect forum for his deteriorating condition. It would be very easy on meeting him for a first time to form the view that he was just a reserved careful person of few words. What I saw in this last visit was a man dramatically diminished from what he had been previously – he had always been cranky and ready to snap at you but now he seemed depressed, defeated, confused and anxious. He was indecisive, unable to make a decision and yet at the same time portraying himself to external caregivers as being able to make such decisions.
[38] Mrs Pierce, who had known Mr Hughes for ten years, described the change in him thus:
In conclusion it is my opinion, that the steady deterioration of Mr Hughes over the months prior to his death was marked. He had gone from a quietly confident man living a solitary life to a very unwell, anxious and extremely depressed man fearful of the future. His final act was to lash out at the person trying hardest to help him – I think a truer view of his opinion of Mrs Fitzmaurice was when we discussed how grateful he was for her care and total engagement in finding the best care she could for him. I believe that the note he left reflected one of the many tiffs he felt they had over the years but was taken to another level by the unhappy state of his mind resulting in his death.
[39] Mr Pierce’s evidence about Mr Hughes’ deterioration and his seemingly
aberrational act in penning the suicide note was as follows:
I was really shocked when I learned of the letter he wrote to his lawyer just before he died because it was not an action I would have expected from the
man I thought I knew and can only think that he was under great stress and not of sound mind when it was written. Thinking about Pat I believe, that in the months leading up to his death, the independence he had so valued had become heavily eroded and by this stage it was clear, that he simply could not continue to live at home as he had. He seemed to vacillate between a decision to enter a rest home and strenuous resistance to it. To me, he seemed overwhelmed by the circumstances he was in and not at all the careful, quiet and independent man he had been prior to 2013. I can only think that he wrote this note when he was under great stress and not of sound mind, and I believe that it was written in the heat of the moment and had he lived until the next morning he would have almost certainly have torn it up.
The Coroner’s finding
[40] The Coroner in her finding recorded of Mr Hughes’ mental health prior to his
death as follows:
(7) … he was seen by the Mental Health of Older Persons Service who felt he had anxiety secondary to his physical illness, and that this would improve as his physical health improved. He was commenced on Citalopram for his anxiety while in hospital, and a follow up in the community was arranged …
(17) What is clear that after a long life of living independently Mr Hughes faced a rapid and debilitating deterioration in his health, which must have been frustrating and frightening for him. It is equally clear that whether he liked it or not his living circumstances needed to change. That seems probable that these matters simply overwhelmed him, despite the caring and support of his sister …
Discussion
[41] It is, of course, perfectly possible for a person to make an intemperate, spiteful or rash decision and at the same time be of perfectly sound mind. The fact that such a decision is rash does not mean it was not intentional, even if the intention proves to be of fleeting duration. That is not the question in Mr Hughes’ case, however. The question is whether his seemingly intemperate and rash decision was simply that; or was the product of an unsound mind?
[42] Mr Fitzgibbons’ evidence about his impression of Mr Hughes, his lucidity and rationality of thought is not to be doubted. It has, however, to be evaluated in the context of a formal meeting in a lawyers’ office of less than an hour’s duration. Mr Fitzgibbons did not know Mr Hughes previously and had not acted for him before. He had not observed Mr Hughes in the hospital setting or on any occasion
when he was exhibiting indecisiveness, anxiety or confusion. Both Mr and Mrs Pierce had observed such behaviours in Mr Hughes and increasingly so in the period just prior to his death. So had Mrs Fitzmaurice when she arrived in New Zealand to provide her brother with assistance. All three persons were extremely concerned about Mr Hughes and about his mental as well as his physical health. Each of those persons had the yardstick of comparative experience of Mr Hughes over a lengthy period and thus were aware of a distinct deterioration in him.
[43] It cannot be known exactly what Mr Hughes was thinking or feeling at the time he wrote the note and took his life. All that can be known is that he was a physically and mentally frail man who was confused and frightened about his future and the momentous nature of the decision required of him. That he felt desperate is evidenced by his act. The letter, perhaps written in an irrational and spiteful moment, as a lashing out against the person closest to him and who had done so much to try to help him, may well have been torn up in the morning, had he survived the night. Again, it simply cannot now be known whether lucidity and rationality would have returned by the morning. However, it seems clear on the evidence that the private, independent and self-contained man described by Mr and Mrs Pierce as his neighbours of ten years, would not have done what Mr Hughes did that night, had his mental health not suffered as his physical health failed, leading to depression, anxiety and (likely) paranoia.
[44] Applying the statement of Cockburn CJ in Banks v Goodfellow, and the approach of Hammond J in Stewart v Meads, to the facts in this case, I am satisfied that Mr Hughes’ ability to think rationally at the time he wrote the note and took his life was so impaired by his deteriorating mental and physical health that he was not of sound mind at the time and not able to express his testamentary intentions in terms of s 14(2) of the Act. I am further satisfied that the terms of Mr Hughes’ will, made in 1999, when he was clearly of sound mind (and confirmed during the formal meeting with Mr Fitzgibbons shortly before he took his life) expresses Mr Hughes’ true testamentary intentions. The will was made at a time when Mr Hughes was unquestionably sound in mind and body; was not confused or anxious or on medication; and was made in terms entirely appropriate to his family situation.
Conclusion
[45] The evidence does not establish that Mr Hughes had testamentary capacity when he wrote the suicide note and does not therefore satisfy the requirements of s 14(2) of the Act, as expressing Mr Hughes’ testamentary intentions.
Result
[46] The application is dismissed.
[47] Mr Hughes’ will of 17 November 1999 will be admitted to probate.
Goddard J
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