Bull v Fulton [1942] HCA 13

Bull v Fulton [1942] HCA 13 - HCA 1942 case summary — Zoe

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The circumstances in which the ideas which the testatrix had about the shares and the transfer of the cottages arose were : - Her brother Henry died in 1926. Before that time the testatrix had no experience of business. She never even paid an account. Her brother managed her affairs and her only function was to sign what he put before her. She was seventy-six years of age when her brother died. In 1924 she signed the application form for the shares about which the trouble arose in 1929. It was signed to carry out a transaction arranged between her late brother and C. W. Sewell, who gave unconvincing evidence suggesting that the testa- trix, who was about at the time, knew what was arranged and could not have forgotten it. If she was aware of what she signed, there can be no doubt that in September 1929, when the first dividend was paid on the shares for which she nominally applied, she had completely forgotten about the transaction. She was then nearly eighty years of age. She did not receive the scrip for the shares from C. W. Sewell until 3rd December 1929, and was not shown the application bearing her signature until August 1933. The evidence shows her ignorance of the technique of a purchase of shares by one person in another's name. Besides, there is no doubt that for a considerable period after 1929 she got conflicting accounts of the way in which she became the owner of the 1,000 preference shares. She held 250 ordinary shares which her brother bought for her early in 1924, and had custody of 500 which he bought for himself and in which she had a life interest. She described the certificates for these 750 shares as the receipts, and she was naturally puzzled that she did not have a" receipt " for the additional shares. Having no recollection of the transaction, the testatrix was more anxious about how so much money came to be invested in this company

she had shares which had not been paying a dividend - than pleased at the receipt of this windfall. Elizabeth Graham's husband was its managing director, and the testatrix knew that the Sewells had applied to her late brother to lend £100 to the company, and that he obliged reluctantly, but said he would not put any more money

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The troubles about the shares and the transfer of the cottages were not the only serious matters that cropped up between the Sewells and the testatrix. She had lived with and had kept house for her two unmarried brothers Edward and Henry. She had lived alongside the home of her brother Joseph, the father of the two caveators, H. A. Bull and Alice Bull, down to the time her brother, Henry, was stricken with paralysis. Her nieces and nephews, the Sewells, had spent most of their school holidays with her and her bachelor brothers. She was attached to them as well as to Alice, Robert and H. A. Bull, the chil- dren of her brother, Joseph Bull. W. G. and C. W. Sewell became solicitors and partners under the firm name of Sewell & Sewell. When Henry moved to the city in 1925, the testatrix chose a house alongside her niece, Elizabeth Sewell, who had married Stuart Graham. Some time after Henry's death an arrangement was entered into whereby two rooms and later a garage were added to Graham's house. The testatrix paid one-third of the cost outright and the remaining two- thirds, a sum of over £200, was advanced to Elizabeth Graham as a loan without interest out of her share in the residuary estate of her uncle Henry. As the testatrix was the life tenant under his will, this arrangement involved a gift by the testatrix to Elizabeth of the interest on £200 during the life of the testatrix. In the result Eliza- beth Graham had this sum free of interest for fifteen years. She had also received from the testatrix, as a gift, the land upon which the house was built. The cost of the garage was £30. Unfortunately Elizabeth Graham found the arrangement inconvenient and made it plain to her aunt, that she, the testatrix, could no longer remain in the Graham household. The Sewells negotiated this very advan- tageous arrangement for their sister, Hlizabeth Graham. No sugges- tion was ever made to compensate the testatrix for her expenditure. The Sewells took an indemnity from the testatrix protecting them- selves as the executors of Henry's will in the matter of this loan without interest, but made no provision for securing to the testatrix

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Ata later stage Henry is left a life interest and, subject to such life interest, Alice Bull is left a block of land, the three Sewell women get the gift of a residence, there are the same legacies and the disposition of the residue. There is very little alteration in the next two wills, except that Elizabeth Fulton's name is removed, as she had died. Then Martha kept house for the two Fulton boys until she went to live with the testatrix. In the will of 19th April 1928 Alice Bull is not appointed as executrix. By that will Alice Bull is to bring into hotchpot the proceeds of the sale of the land which the testatrix had given to her. However, from her letter giving instructions for a new will dated 7th August 1928 to C. W. Sewell, whatever umbrage the testatrix took at Alice's selling of the land had disappeared. She wrote: "T also want to cut out that part about Alice's land. I gave her a gift of the land and she was quite right to sell it." It thus appears that not only H. A. Bull but his sister Alice received a substantial gift of land from the testatrix. In Sewell's letter of 15th August 1928 there is a reference to statements supposed to have been made by Alice Bull and H. A. Bull " with regard to the justice of Uncle Henry's will." The letter continues : - " As I told you then, I do not believe either of them would think or say such things and I thought in any event that it was very improper that anything they had to say should be repeated to you and I felt the communication of such things to you could have been made for no proper object." In her will of 16th August 1928 she included Lavinia Bull and Martha Bull with the three Bulls and the eight Sewells as residuary beneficiaries. She gave her reason for this in her letter of instructions. She wrote: "I have been thinking a great deal about my two nieces and I feel I ought to help them and they are the only ones who have to work for their living. Lavinia is the only one who did not get a legacy at any time now I wish to make her a present of £100 - one hundred pounds." Lavinia died gome time after this will was made.

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a home also, of course I have to provide for her while I live and if she survives me I have to provide for her when I die, so I being the last of my generation decided'to make my will, I went a good deal by your Uncle's will and have made you and Guy my executors. Mr. W. B. Thomson fixed it all up for me." A further letter to the Sewells which is dated 10th August 1932 shows her deep concern for Martha. In it she writes: "I was thinking of writing to you about my will, I am not at all satisfied with the provision I have made for Mattie she knows nothing about what I have done, but a little while ago she was talking about being left alone, & she said she would never live with any of her relations nor would she live alone, she would live at a Ladies Home and pay her board & be independant (sic), she is 64 years old & in all probility (sic) will out- live me, I would like to leave her independant (sic), I know her uncle Henry meant to do this & it is a mystry (sic) to me that he did not do so, I want you to advise me what to do as it is a great worry to me. I wish I was near you to talk over it, you know all the other nieces and nephews are remembered in his will & I cannot think why Mattie who neaded (sic) it most should be left out. I will send you a copy of my will. Mr. Thomson has the will please Ced write soon & ease my mind, should I make a new will & let my house go into my estate." C. W. Sewell replied to her on 11th August 1932 and gave it as his opinion that "it would not prove satisfactory to leave the house as you have to Mattie." He sug- gested an annuity. The testatrix apparently accepted his advice. His response was to draw a codicil revoking the devise to Martha of the house, the gift to her of a share in the residue, and providing for her an annuity of £50 per year. This codicil was signed on 16th September 1932 at W. G. Sewell's residence at Colac, where the testatrix had come for a holiday. At the same time she executed the transfer of the cottages to H. A. Bull. It is clear that she was familiar with will making and it is not to be assumed that because she remembered signing a will she would remember equally well the signing of a transfer. Naturally the testatrix was dissatisfied with this codicil. A fresh codicil was executed on 30th September 1932 giving Martha £52 per year instead of £50. The effect of these codicils was clearly to make Martha's position much worse, although the testatrix asked C. W. Sewell to improve it. In his cross-examina- tion C. W. Sewell admitted this. By the codicil Martha lost her life interest in the house 31 Albert Street, which according to his evidence would let at from thirty shillings to two pounds per week, and her one-sixth share of the residue. It is unfortunate that the draft of the codicil of 30th September 1932 is missing. C. W. Sewell

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thinks he drafted it himself. When the effect of the codicil became apparent to the testatrix she was profoundly disturbed. She wrote to C. W. Sewell on 26th November 1932: "I find I made a mistake in signing the codicil to my will without reading it over, I revoke that part of my will about my house & furniture being left to my nieces, but I do not agree to my niece Martha Bull being only the recepient (sic) of a paltry 52 pounds a year which would not pay her board & lodging & I do not intend her name being left out of my estate, I would rather leave out Bessie Graham as she has a home & husband to provide for her, Martha is the only one of all my nieces and nephews who has no home if she outlives me so her name must remain as it is in my will. . . . She is to get her share of my estate as is in my will, I also leave the contents of her bedroom which she occupies in 31 Albert St. to Martha Bull. Will you please get the Codicil made out in a few days & releive (sic) me of the worry it is causing me I want it to end. I feel it very much as I have no one in this world to consult with but you." To this letter C. W. Sewell replied on 29th November 1932 forwarding a fresh codicil and giving the unfortunate assurance that the codicil as then drawn would not affect Martha's interest under the will in the residue. On 30th November 1932 the testatrix replied with a letter plainly showing her annoyance. It concludes: "I hope we will be able to come to an amicable arrangement for it is taking a lot out of me." To this C. W. Sewell answered on 2nd December 1932 pointing out that it was her place to decide and his to follow her instructions, but instead of doing so he entered into a long explanation in which he said that provision for the annuity of three pounds per week, suggested by the testatrix, would exhaust all her estate and " leave nothing for anybody else." He continued : "under all the circumstances it would be best to follow your original idea of leaving Mattie a share in the residue." With the letter he returned the codicil forwarded on 29th November. In fact it deprived Martha of her share in the residue and of the life tenancy of 31 Albert Street. If the testatrix executed it, Martha would have been left only with the furniture and fifty-two pounds per year. The testatrix acknowledged receipt of this codicil but did not execute it. The only thing for the testatrix to do was to go to another solicitor. She consulted Mr. Thomson who drew a fresh will for her which she executed on 12th December 1932. There is no evidence of the contents of the wills of 12th December 1932 and 3rd February 1933.

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fact strongly confirms the findings of Martin J. It proves that she was not affected by any chronic delusion that they treated her dishonestly, or plotted dishonest things against her. Until the end she allowed them to retain under their control almost her entire fortune. They collected her income, which was her chief means of support, held principal moneys on her behalf for investment, and received on her account principal moneys repaid by mortgagors. It would be an endless task to go through the correspondence in detail. With but few exceptions all letters from her to the Sewells or from them to her conclude with the sentiment: '' Yours affectionately." There is nothing in the evidence explaining how this strong evidence of her trust and confidence in the Sewells is compatible with the sug- gestion that she had insane delusions that the Sewells were cheats and frauds. It cannot be explained by- the suggestion that she did not realize that her valuable interests were in the hands of the Sewells. That suggestion, if made, would be demonstrably false. She was intent upon her property and the collection of her income until the end ofher life. The retention of the Sewells as her solicitors to attend to all those matters involved the highest degree of trust in them. It is the strongest possible evidence that her false statements were not made under the baleful influence of an insane delusion that they had defrauded and tricked her. I refer to the last letters in the voluminous correspondence between her and the Sewells written not more than six months before the last will and codicil were made. These letters show that on 15th January 1941 C. W. Sewell wrote to her recommending that she should forego arrears of interest amounting to £61 due to her under a mortgage which was in Sewell's office. The grounds on which the recommendation was put were fair and creditable. The testatrix was told that it would occasion hardship to some mortgagors to enforce her remedy of ejectment, but the letter stated that the question was one to be decided by her. OC. W. Sewell's letter to her dated 30th January 1941 conveys to her the gratitude of the mortgagors for her generosity in forbearing to evict them, and it appears from the letter that she communicated her decision to C. W. Sewell by telegram and letter dated 16th January 1941. Neither was produced at the hearing of this case. It is clear that she promptly adopted his recommendation. The testatrix saw nothing sinister in the proposal that she should forego the arrears of interest.

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Stuart Graham, who was an engineer, had formed a company called Graham Campbell Ferrum Co. Pty. Ltd. Uncle Henry had given considerable support to this company. In January 1924 he invested £500 on his own behalf and £250 on behalf of the testatrix in acquiring 500 and 250 ordinary shares of one pound each respec- tively in its capital. In October 1924 the company desired to raise further capital to expand its undertaking. It proposed to raise the required sum by the issue of eight per cent preference shares of one pound each. Cedric went to Bairnsdale and suggested to uncle Henry that he should take up some of these shares. If Cedric's recollection is right the testatrix was present at the conversa- tion. Uncle Henry agreed to apply for 1,000 shares in his sister's name. Cedric returned to Colac, and, on 15th October, wrote to uncle Henry, enclosing an application for 1,000 shares for signature by the testatrix, and suggesting payment, £250 on application and the. balance, £750, on 15th December. On 20th October, uncle Henry replied enclosing a cheque for £250, the balance to be paid on completion of certain litigation with one Salter, and also forward- ing the application which had been signed by the testatrix, the date for payment of the fifteen shillings per share having been altered from 15th December to 15th January. On 15th December the firm wrote to uncle Henry to say that they presumed that out of Salter's money they were to pay £750 to complete the payment of the balance owing on the shares. On 17th December uncle Henry replied telling them to do so. On 10th January 1925 uncle Henry wrote a long letter to Cedric saying that he was quite satisfied with the settlement of Salter's case and discussing family matters. It is apparent from this letter that he was then quite able to transact business, although it was written only five days before he had a stroke. On 14th August 1925 Cedric wrote to uncle Henry with respect to further moneys required by the company to finance a further extension of its plant, and asked him to reply by wire whether he would lend the company £100 at eight per cent interest. Uncle Henry caused the testatrix to send a wire agreeing to do so. This letter remained in the possession of the testatrix because, some time after December 1933, she added a footnote as follows : - '' the Sewells did not mention this paper when they told him Mr. Thomson

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of the Government Savings Bank at East Caulfield, where the testa- trix had her account, had made an inquiry on her behalf about her interests in the company. In July she told Bessie that the boys had bought some shares in Stuart's company, which she had no knowledge of, and neither she nor uncle Henry had authorized them to do so. In view of Baragwanath's inquiries and this conver- sation, Bessie spoke to Cedric, and he then wrote the letter of 29th July, giving the testatrix a complete account of the acquisition of the shares, and forwarding to Stuart the original letters so that he could show them to her "in order that her mind should be relieved of all misapprehension." Stuart gave the letters to Bessie, and she, early in August, showed and explained them to the testatrix, who appeared to be satisfied, and wrote a letter to Cedric on 3rd August in which she said she had read all the letters, Bessie and she had had a long talk over them, and Bessie had tried to explain to her what she did not understand. She suggested that the mistake had occurred because her brother had kept her in ignorance of her affairs during their lifetime, and said she did not mean to say that Cedric was not doing his best for her, for which she was very grateful, as he knew. Assuming that this letter genuinely represented the state of mind of the testatrix at the moment, it is evident that she quickly reverted to a condition of complete distrust of Cedric's account of the transaction, because, soon afterwards, she told Stuart Graham that the boys had taken up the 1,000 shares in his company without her authority and that of uncle Henry, and, when he showed her the application with her signature on it, would only say it looked like her signature and asked where was uncle Henry's signature. When he explained it was not necessary for uncle Henry to sign as it was an application for shares in her name, she said she had never seen it before. When she was leaving for Bairnsdale in December, Stuart Graham drove her to the train and on the way she said: "Stuart, the boys have definitely put money into your company without my authority," and maintained this attitude, although he pointed out to her that she had seen uncle Henry's letters and her signature on the application. Cummins, an account- ant who married a niece of the testatrix, and whom the testatrix consulted on business, also said that, commencing in the winter of 1933, she often told him she had signed nothing. When she made the will of 5th December she was staying with Alice at Bairnsdale, and told her she had never signed an application for the shares. There is other oral evidence to the same effect. So, in the period between May and December 1933, although Cedric had explained the whole transaction in July, she had been shown the original

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transfer of the title and one relating to the deed of gift as she wished to have it fixed up before Christmas. On 27th November Cedric replied, pointing out that the transfer papers were signed when she was at Colac in September 1932, and saying he had written to Henry asking him to write and tell her he had received the title from the firm several months ago. Cedric wrote to Henry enclosing a copy of his aunt's letter, and stating that, as the transfer was fixed up in September, he wanted Henry to write and tell her he had signed the papers then and he had received the title deeds some months ago. Henry drove her to Thomson the day she made the will, told her this, and reminded her he had written and thanked her for the property but she was quite unconvinced. Henry gave her his copy of Cedric's letter, and she made a note "no date" above the word September as though this was a suspicious circumstance. It is clear that the testatrix distrusted Cedric's letter ab initio and immediately acquired the firm belief, from which she never subse- quently departed, that she had never signed the documents or been in Colac on 16th September. She told Alice in December she had never signed the transfer to Henry. The letter of 23rd November provides definite evidence that the testatrix's memory was failing. When she had made some earlier gifts she had been careful to explain in writing that they were made of her own free will, so that it is feasible she may have believed that to complete a gift a similar document was always required ; but, even if this were so, she should have remembered that she had executed some documents at Colac relating to the transfer. Moreover, as she was thoroughly conversant with her affairs, and, before the transfer to Henry, the rents of the cottages had been paid by the agent who collected them direct to her, it seems clear that, if she had retained her pristine alertness and believed she still owned the cottages, she would have soon realized either the tenants were not paying or the agents were not accounting for the rents and taken some energetic step to put things right.

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one-half per cent and to increased taxation, but the testatrix, placing an unfair construction on what Cedric had written in 1926, commenced to tell people that the boys had promised she would have £10 a week for the rest of her life and her dissatisfaction soon grew into the suspicion that the falling off in her income was not due altogether to the above causes but also to defalcations of uncle Henry's assets. She told Alice she could not understand where the money was going, and she told Cummins before she went to Bairnsdale, and Alice and Henry after she arrived, she was going to make a new will and cut the Sewells right out, they had already obtained all they were going to get from her. But the best evidence of her growing feeling of distrust of the Sewells is her own letter to Thomson of 12th December, in which she makes a clear charge that they were taking advantage of her ignorance of business after she had been left unprotected by her brother's death and she had foolishly agreed to nearly all they did and said. In a footnote she even exhumed the complaint about her removal from the Grahams' home after her expenditure on the additions and said: '"' Too late I found out my mistake in being too trusting." She had already avenged herself upon Bessie by the will of May, so it must have been to exact retribution from the boys that she omitted them from the will of December. If her attitude was that her nephews were honest but had taken too much upon themselves by doing things and signing documents on behalf of uncle Henry and herself without proper authority and had failed to invest his and her assets advantageously her action would have been harsh and unreasonable, because the shares in the company had turned out trumps and were paying preference and ordinary dividends of fifteen per cent and over, and she was satisfied that Henry should have the vacant land, even if a mistake had been made in carrying out her intentions, which is unlikely, seeing that the description in the codicil of May 1932 was exactly the same as that in the transfer. But her statements showed she was actuated by more than annoyance at the way they had conducted her business. It is clear that she had formed the opinion she could not trust them. She considered they were implicated in what she regarded as the dishonest way she had been treated at the Grahams' home. She was satisfied they had taken advantage of uncle Henry's illness

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The year 1934 provided abundant evidence that she was placing this sinister construction upon her nephews' actions. When Guy learnt that Thomson was acting for her in December, he seized the opportunity to write a letter on 7th December 1933, giving Thomson full details of the transactions relating to the 1,000 shares, the transfer to Henry, the assets and income they were managing on her behalf, and forwarded to him uncle Henry's original letters. Naturally Thomson expressed himself as completely satisfied that she had been dealt with fairly and honourably throughout and so informed the testatrix, stating specifically he had seen the original letters. At this time she did not know Guy had suggested in his letter of 7th December that the explanation of her strange conduct was that her memory was failing, so her renewed activities early in the year were not, as Mr. Hudson suggested, the result of wounded pride that such a charge should have been made against her. She only saw a copy of this letter at the end of May. Prior to this she had been seeking particulars from Henry of the assets comprised in his uncle's estate to establish that some of them had disappeared. When she thought she had evidence that £3,000 was missing, she wrote to Thomson to supply her with a copy, which he did with the consent of Guy and Cedric. There is no doubt she then took offence at Guy's suggestion and became more embittered against them than before ; but Cedric had made a similar statement in his letter of 29th July and she had managed to discuss this letter with Bessie and had purported to be satisfied. Her attitude in 1934 rather indicates that she considered the attack upon her memory was part of an insidious campaign by her nephews to mislead Thomson and others into the belief that the documents were genuine when she knew that they were not. On 23rd June 1934, she wrote to Henry that "as this affair is all settled up, and you have got the property as I intended alright, no more need be said about it but I still say as I think I told you before, I was in Colac for nearly a fortnight and I never saw the title or deed of gift and never signed my name to the papers but someone must have signed my name so you are right,

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you will see the Sewells are saying I am suffering from want of memory which I quite deny." On 6th August she went to the Land Titles Office with Martha and inspected her signature. Its genuineness is apparent, but she remained unconvinced. She made the following note on Cedric's letter to her of 27th November 1933: " Mattie and I went to the titles office and saw the transfer papers for the first time, my name was there but not signed by me, I was not in Colac on the 16th September and I never signed the transfer papers or saw the papers in Colac or anywhere else, until I saw them in the transfer office.' August was a busy month, because in addition to her private entries she wrote to Stuart about the shares and to Henry about them and the transfer. In a letter to Stuart of 15th August 1934, after referrmg to Guy's letter to Thomson of 7th December in which he stated they had sent the original letters to Stuart which he had shown to her, she said he had never shown her the letters at any time. It is clear she was not quibbling on the fact that Bessie and not Stuart had shown her the letters, because, in a copy of her letter which she sent to Henry with a letter to him dated 26th August 1934, she said: "I was never shown them by you" (i.e. Stuart) "or by anyone else." In her letter to Henry she told him not to return any of the papers she was heartily sick of them all but she did not believe in Guy and Cedric telling Thomson what was not true and she would not ask his adwice any more as he believed all they said. The enclosed documents, in addition to the copy letter already mentioned, gave an account of an interview with Stewart in which she said: " he did not bring the papers relating to the thousand shares instead he brought an application of a thousand shares signed in my name but not written by me. I asked him where my brother's signature was, he said it was not needed, he asked me if I had ever seen the application before, I at once said no I never did, he said that was all he could do, he did not produce the letters Sewells said he had. Of course I decided he had not got them and they were not in existence. He went away and I have heard no more about them, I feel I have got the better of them and now I do not want to hear any more about them so long as I get the dividend." She also wrote that she had "been to the Titles Office on 6th August and had seen the title of transfer for the first time, the signature supposed to be my own was witnessed by Cedric though Guy said the Clerk of Courts in Colac was the witness, the date of the deed was 16th September 1932. I was not in Colac on that date and on that date or any other I never saw the Clerk of Courts."

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After the transactions had been explained to her and Thomson by her nephews, and she and he had seen all the original documents and she had been advised by Thomson that everything was correct, there could be (in a true and not a Gilbertian sense) " no manner of doubt no probable possible shadow of doubt no possible doubt whatever" in the mind of any rational person that the firm had acted properly in all respects in relation to Uncle Henry's and her affairs, but she was unable to believe the evidence of her own eyes or accept the advice of her solicitor and still persisted in her charges. She thought she had proved her nephews were deceitful finally and conclusively, and so could bury the whole matter as she had got the better of them. But she was unable to do so. Her morbid fancies would not be repressed. She repeated all the charges to Cedric when they met at Christmas 1934, by which time her suspicions had so poisoned her affections that she showed strong personal antipathy towards him, and subsequently neglected to reply to his letter of 21st January 1935, by which he tried once more to vindicate his firm in her eyes, told her he was forwarding the original letters to an address in Melbourne, where she could inspect them, and sent an authority addressed to the Collector of Imposts authoriz- ing her to inspect the declaration. She does not appear to have inspected the letters, but, as the authority was produced by the Collector of Imposts and she referred to the visit to him in her letter to Thomson of 5th April 1935, she obviously inspected the declara- tion. Nevertheless in this letter she still adhered to her false belief of what had taken place with respect to the transfer stating that she had seen her signatures on the transfer and on the declaration one witnessed by Cedric Sewell and the other by the Clerk of Courts in Colac a man she had never seen and did not even know his name so that he " could not have witnessed my name for 2 was not written by me & the date of their signature I was not in Colac & my memory is quite clear although I can assure you my memory is quite clear and not as my nephew insinuated. Now as things have turned out I am writing in self-defence as if my name can be so success- fully copied in this case it can be done again." Thomson's polite reply refusing to comment was a plain indication he considered fur- ther discussion of her preposterous charges was useless. At the end of 1938 or early in 1939, on the recommendation of her friend the bank manager, she commissioned a handwriting expert named Crofts to inspect her signature to the transfer, which he did; and, although he told her it was certainly hers, he could not shake her

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faculties. If therefore she made a mistake in her recollection she would prefer to deny the truth rather than to admit a failure of memory or, as Hamlet said of the players, "" After death you were better have a bad epitaph than their ill report while you live." But is it fair to form such an estimate of her character ? No doubt she was obstinate in her beliefs, but she appears to have had an upright mind and in many instances showed herself capable of generous actions. She would not, in my opinion, have been so dishonest or ungenerous as to persist in charges against the firm which she knew to be untrue once their gravity had been pointed out, or so ignorant as to believe that she could persuade experienced persons like Thomson or Cummins to accept such palpable lies. Moreover she made several inquiries in the correspondence which tacitly admitted her memory had flaws, but, when the firm refreshed her recollection and she then remembered what had occurred, she accepted an explanation. For instance, in 1929 one of her mort- gagors, Mrs. Maddox, had repaid a loan of £600 which had been transferred to her in 1927. She had executed a transfer in 1927 and a discharge in November 1929, but on 18th April 1935 she wrote asking if Mrs. Maddox's money was invested yet and when Cedric reminded her of the facts she was satisfied. It is safer to assume that her character was such that when she could not recollect an event after her memory had been refreshed her faith in its infal- libility was sufficient to then cause her honestly to believe it had not taken place. When the 1,000 shares were acquired in the company she was seventy-four years old. Advancing age generally takes toll of some physical or mental attribute, however tough a person's constitution may be, and it has been recognized so often that it affects the faculty of memory that a will made by a person of advanced age is always carefully scrutinized by the court (Kinleside v. Harrison (1) ). Her inability to recollect the transaction was definite evidence of senile decay of this faculty, and her oblivion with respect to the events relating to the transfer shows how this decay had become acute by 1933. She was unable to believe she had forgotten such a recent event, and the resulting conviction that her signature had been forged increased the rising tide of doubt with respect to the share transaction; and this, coupled with her suspicion that some of her income had disappeared, overwhelmed her reason and caused a flood of irrational distrust and hatred against Guy and Cedric for which there was no possible justification. If she had simply believed they did not need help she might have removed them from the list of beneficiaries, but their removal as executors (1) (1818) 2 Phill. Ecc. 449, at p. 462 [161 E.R. 1196, at p. 1200]

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shows she distrusted them. As Thomson, an experienced observer, said in his letter of 12th December 1933, she was by then " un- doubtedly suffering from loss of memory and that being so when she is confronted with certain facts her mind is a blank with regard to them and she disputes their accuracy. I had evidence of this when discussing matters with her here." If her memory was so defective that she had become incapable of retaining a recollection of the events relating to the acquisition of the shares or the execution of the transfer, so that it had become impossible to displace the illusory beliefs on these matters which had taken possession of her mind, and they were affecting her ability to assess her nephews' claims upon her bounty in a just manner she would not, on this ground, have had "that sound memory which in testamentary matters is essential to a disposing mind and understanding " (Re Belliss ; Polson v. Parrott (1) ). But having regard to her pertin- acious adherence to her delusive ideas with respect to her nephews in opposition to such plain evidence of their falsity, the better conclusion is that by December 1933 her mind had become the victim of insane delusions with respect to the matters alleged in the particu- lars. Her rapid recession from her recognition that the letters were genuine in August 1933 shows the strength of the obsession to the contrary which had by then possessed her mind. The events of 1934, 1935, and the subsequent years demonstrated the further growth of misconceptions which were already well rooted by the end of 1933, and reflected back on earlier acts if they might other- wise have been regarded as equivocal (Wheeler v. Alderson (2) ). No specialist in mental diseases was called, but the Court can rely on its practical knowledge derived from its own experience ; and there are many definitions of an insane delusion in decided cases, several of which are collected in Mortimer's Probate Law and Practice, 2nd ed. (1927), p. 50. It must be remembered, however, that some state- ments in the older judgments are based on current medical knowledge and that more is known about mental diseases now than then. A modern medical definition appears in Halsbury's Laws of England, 2nd ed., vol. 21, p. 273: "A belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings." In Derrett v. Hall (3) where eminent Sydney mental specialists gave evidence, it was defined as a fixed and incorrigible false belief which the victim could not be reasoned out of. (1) (1929) 141 L.T. 245. (3) Unreported. High Court, 4th

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Mr. Hudson contended that, even if the testatrix subsequently became the victim of insane delusions, she still had testamentary capacity in December 1933, so that, as she decided to alter her will at a stage when she was still capable of estimating her nephews' claims upon her bounty, their omission from the subsequent wills should be attributed to an adherence to her previous decision and not to the influence of subsequent delusions. As it appears to me that the delusions and failure of memory did exist in December 1933, this contention becomes immaterial, but, as it was argued strenuously, I shall deal with it shortly. If the delusions only commenced subsequently to 1933, but their existence was established prior to the will of 1940, this would be one of the circumstances on which the respondent could rely to show their existence had not influenced the mind of the testatrix. Supposing she had taken her business away from the firm at the end of 1933, and there had been a complete severance of the relations previously existing between them, it would have carried great weight and might have been decisive. But where there is evidence sufficient to prove that a testator is suffering from an insane delusion which exists at the date of the will and relates to a matter calculated to have an influence upon his judgment in weighing the merits of those who have claims upon his bounty, the onus is on the person who propounds the will to establish affirmatively that it was made by a competent testator. A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants (Burdett v. Thompson (1) ). Such a capacity does not exist where the testator is suffering from a disorder of the mind which " shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties" (Banks yv. Good- fellow (2) ). In Swewright v. Sivewright (3) Viscount Haldane made some remarks which suggest that the onus of proving that a will is the product of an insane delusion is on the opponent. As Lord Watson in Hope v. Campbell (4) appears to have taken the same view it may be that in the case of a trust disposition which is made by deed the law of Scotland is different from the law of England on this point, but I agree with the learned author of Mortimer's Probate

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Law and Practice, 2nd ed. (1927), p. 55, that Lord Haldane's remarks were made in a case where his Lordship had already decided that the belief in question was not an insane delusion and that he could not have intended to assert as a general proposition that where insane delusions are proved to exist the burden of proving that they affected the disposition of property is on those who attack the will. The point discussed in Jenkins v. Morris (1) to which his Lordship referred was whether a person who had an insane delusion had the capacity to contract. In Waring v. Waring (2) the Privy Council had held, presumably relying on medical views current at the time, that the mind was one and indivisible, so that if a person suffered from an insane delusion upon any subject however remote from the matters he would have to consider in making his will he lacked testamentary capacity. In Jenkins v. Morris (1) Hall V.C. in the Court below and the Court of Appeal on appeal disagreed with this view, which had not been followed in Banks v. Goodfellow (3). [tis now recognized that the mere existence of a delusion does not deprive a testatrix of testamentary capacity. As Langton J. pointed out in Inthe Estate of Bohrmann (4): " Paranoia . . . is that form of delusional insanity which is entirely consonant with a clear unclouded intelli- gence on subjects which are unconnected with the delusion." But Hall V.C. (5) and Baggallay LJ. (6) both expressed the opinion that where there is evidence of a delusion the onus is on the party pro- pounding the will to establish that it did not affect the disposition. In Waring v. Waring (7) it was stated that the onus probandi is on those setting up any act done or instrument executed after the malady has been established. In Banks v. Goodfellow (8) the Court said: "We readily concede that where a delusion has had, as in the case of Dew v. Clark (9), or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity." Lord Atkinson in his speech in Sivewright's Case (10), after agreeing that there was no disorder in the mind of the testator poisoning his affection for his wife, left unanswered the question where the onus of proof lay. He said: " Hven if the delusion under which the testator undoubtedly suffered was of a character calculated to affect his testamentary dispositions to his wife's prejudice, of which I have some doubt, there is not only an entire absence of

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Judgment (169 paragraphs)