88 In his expert report written for the purpose of these proceedings (Annexure "C" to his affidavit sworn 2 July 2006), Dr David Bell observed that, what appears from his review of the evidence was that "all agree that [Mr Klemenis] had chronic schizophrenia" (Report, paragraph 2). Dr Bell stated that the delusional productions of chronic schizophrenia distort the beliefs of the sufferer rendering "the testator incapable of arriving at a balanced judgement about the call that his children have upon his bounty," thereby removing "an essential plank on which testamentary capacity depends".
89 Dr Bell noted that, according to the affidavits of Mr Clemens, Ms Chan and Dr Phillips, Mr Klemenis was confused about the length of time during which he had not had contact with either of his children. In addition, Dr Bell noted that Mr Klemenis stated in his Will that his children had rejected him as a father and that his children considered that he was no longer their father. While Dr Bell observed that such confusion might be explained by the loss of memory the result of mild dementia, he opined that such confusion was "more likely … explained by his delusional belief" (Report, paragraph 3).
90 Dr Bell noted that what appears from the affidavits of Mr Clemens and Ms Chan is that Mr Klemenis had rejected his children despite the overtures made to him by each of his children over the years to repair the gap between them (Report, paragraph 4). Dr Bell opined that Mr Klemenis' confusion reflects the "delusional paranoid beliefs, which he had in his mind" (Report, paragraph 4). Dr Bell continued, explaining that "[i]n psychiatric terms, he had projected into their minds a construction which had originated in his and had maintained that projection in the face of good reason to deny its validity" (Report, paragraph 4).
91 "Projection maintains the force of a delusion in the face of evidence to the contrary" (Report, paragraph 4). The result of such projection is that "it serves to maintain false beliefs" (Report, paragraph 5). In relation thereto, Dr Bell observed that Mr Klemenis had strong racial prejudices which "could be taken to explain his rejection of his daughter after she married an Asian" (Report, paragraph 6). However, he stated that "his inherited prejudices have no relevance to the false beliefs expressed in his will about his son" (Report, paragraph 6). This statement, Dr Bell explained, is based on the "general thrust of the facts" as asserted in the affidavits of Mr Clemens and Ms Chan and Dr Bell's assessment that those affidavits reflect "the truth of the matter" (Report, paragraph 6).
92 The fact that Mr Klemenis was suffering from schizophrenia, had delusions and was assessed by the Guardianship Tribunal as incapable of managing his own affairs, Dr Bell stated "do not in themselves necessarily remove testamentary capacity" (Report, paragraph 8). The decision of the Guardianship Tribunal, according to Dr Bell, has "only an inferential relevance of relatively weak force" and only then such relevance would be limited. The squalor in which Mr Klemenis was living provided "an indication of how severe Mr Klemenis' schizophrenic illness had become and indirectly the force that the delusions exercised on his mind" (Report, paragraph 8).
93 Dr Bell stated that the fact that Mr Klemenis was not of sound mind, memory or understanding at the time of making his Will are facts relevant to the question of testamentary capacity. Having regard to the fact that the deceased was not of sound mind or memory, Dr Bell opined that Mr Klemenis lacked testamentary capacity.
94 In his affidavit of 8 December 2005, Mr Clemens describes two occasions when Mr Klemenis appeared to go into a "coma". One of these incidents occurred in 1998 at James Fletcher Hospital and the second in John Hunter Hospital. Dr Bell observed that the "state of sitting immobile and staring straight ahead seen in a person who has chronic schizophrenia was probably catatonic" (Report, paragraph 11). Dr Bell explained that a catatonic state does not result from a coma but instead "appears to be a freezing of the body while the mind becomes totally occupied with psychotic thoughts" (Report, paragraph 11). Dr Bell opined that such incidents, particularly when considered alongside the squalor into which Mr Klemenis sank, are an indication of the "mental illness having great severity" (Report, paragraph 11).
95 Dr Bell also observed that towards the end of his life, Mr Klemenis developed "delusions" about Ms Byrnes (Report, paragraph 19). One particular delusion he highlighted was that of Mr Klemenis' stated belief that the married man who boarded with Ms Byrnes on weekdays was having a sexual relationship with her. Mr Klemenis became convinced that she was doomed to hell and he wanted to move in with her in order to protect her. Mr Klemenis developed the habit of telephoning Ms Byrnes frequently and eventually telephoned her place of work to relay his beliefs as to her alleged immorality. There reached a point where Ms Byrnes became concerned for her safety, although she did not indicate the nature of those concerns.
96 In relation to the death of Mrs Klemenis, Dr Bell observed that Mr Klemenis "clearly did not have a grief reaction" (Report, paragraph 21). Dr Bell noted that in 1964 Mr Klemenis had been prescribed medication to which he had "responded well". However, in 1987, a report in relation to the previous 12 months noted Mr Klemenis' decline in memory and his "mild paranoia" about governments. Dr Bell observed that at this time, Mr Klemenis was not taking any medication. The clinical notes in the following decades do not refer to any further decline in Mr Klemenis' power of memory (Report, paragraph 22).
97 Dr Bell opined that Dr Edmeades' reference in clinical notes to Mr Klemenis' declining memory, a decline to which no subsequent reference is made in any of the material reviewed by Dr Bell for the purpose of his report, would indicate "what could have been chronic schizophrenia over these years, but do not reveal any definitely diagnostic feature" (Report, paragraph 25). Dr Bell continued, suggesting that "schizophrenia could explain the apparent impairment of memory which did not advance over a period of 20 years" (Report, paragraph 25).
98 In relation to Mr Klemenis' meeting on 14 April 1994 with a member of the Hunter Area Psychogeriatric team, Dr Bell noted that in 1994 Mr Klemenis "recognised well that his daughter had not broken off with him, but rather he had cut her and her children off" (Report, paragraph 27). Dr Bell opined that, "a failing memory does not explain the falsities" (Report, paragraph 27).
99 Dr Bell observed that all those practitioners responsible for treating Mr Klemenis agreed that he was suffering from chronic schizophrenia and, in Dr Bell's opinion, he was suffering from "late onset schizophrenia" (Report, paragraph 30). Dr Bell explained that late onset schizophrenia "differs from that which begins earlier in life by being far less florid and far less damaging to the capacity for rational thought and personality. As a result, it can be very difficult to recognise. Typically these cases are not frankly psychotic even if they advance their delusions openly. Mr Klemenis would appear to have characteristics of this late-onset type of schizophrenia. It would appear to have progressed further in terms of his delusional beliefs about his children by the time that he made out his will of October 1997" (Report, paragraph 30).
100 Having regard to Mr Klemenis' increasingly harassing behaviour towards Ms Byrnes and his own diagnosis of late onset schizophrenia, Dr Bell observed that "even in old age the individual can be a significant menace", and opined that Mr Klemenis "would appear to have had this progression" (Report, paragraph 33).
101 In composing his report, Dr Bell had regard to the findings of Ms Cody, a psychologist attached to the James Fletcher Hospital, contained in her report dated 15 December 1998 to the Guardianship Tribunal. In that report Ms Cody concluded that Mr Klemenis could not make informed arrangements about his financial affairs and future living arrangements.
102 In his report, Dr Bell stated that "different factors bear upon the separate issues that concern the matter of guardianship as distinct from testamentary capacity", although they may coincide (Report, paragraph 36). Dr Bell opined that those factors do coincide in the case of Mr Klemenis (Report, paragraph 36). Dr Bell explained that "the delusional ideas produced by the schizophrenic process affect both through much the same mechanism, his beliefs. The ideas that rendered him unable to plan his affairs have also distorted his thinking about the call that his children have on his bounty" (Report, paragraph 36).
103 Similarly, in reports to the Guardianship Tribunal, both Dr Raymond and Dr Prasad arrived at the conclusion that Mr Klemenis was incapable of making decisions in his own best interest (Report, paragraph 38). Dr Bell notes that Dr Prasad reported a similar decision to the Tribunal in February 1999 (Report, paragraph 38).
104 In relation to the hospitalisation of Mr Klemenis on two occasions in 1999 and Mr Klemenis' omitting certain details of his hospitalisation when reviewed by Dr Ticehurst in February 2000, Dr Bell opined that "Mr Klemenis may have had some type of progressive dementing condition, but on balance the evidence indicated that it was so minor as to be an insignificant factor in governing his behaviour and judgments" (Report, paragraph 40). Dr Bell elaborated, stating that given Mr Klemenis' capacity to recall events, even with omissions, "the initial impression of memory impairment had not been correct, particularly as he gave a reasonably coherent history" (Report, paragraph 40).
105 Having regard to Mr Klemenis' performance in a Mini Mental State examination (a score of 26/30), a strong indication that he did not have dementia, Dr Bell opined that Mr Klemenis "did not have a significant dementia, but rather was incapacitated by the effect of his chronic schizophrenia" (Report, paragraph 42).
106 Dr Bell stated that he could not agree with Dr Phillips' conclusion that Mr Klemenis decided to disinherit his children on reasonable grounds rather than as a result of insane delusions for the reason that Dr Phillips seems not to have had all the affidavit material before him concerning the history of the efforts made by Mr Klemenis' children to maintain a relationship with their father (Report, paragraph 46). Dr Bell explained that he would better understand Dr Phillips' conclusion were Dr Phillips to give reasons why he disregarded aspects of the affidavit evidence.
107 In the final analysis, Dr Bell opined that Mr Klemenis did not have testamentary capacity when he made his will on 28 October 1997 by reason of his long-held insane delusions in the context of his paranoid schizophrenia (Report, paragraph 48). Dr Bell stated that Mr Klemenis cut his children off as a result of his delusional beliefs and, similarly, he resisted the many attempts made by each of his children to restore the filial relationship. Dr Bell noted that in light of the affidavit evidence relating to the efforts made by both Mr Clemens and Ms Chan, Mr Klemenis' purported Will contains statements that appear to be false (Report, paragraph 48).
108 On the assumption that the affidavits of Mr Clemens and Ms Chan reflect the truth of the matter, Dr Bell opined that the false statements in the purported Will were the result of the late Mr Klemenis' delusional beliefs (Report, paragraph 49). Dr Bell concluded that on the basis of the available material, the deceased lacked testamentary capacity by reason of his insane delusions which "rendered him incapable of arriving at a sound assessment of who had justifiable claim on his bounty" (Report, paragraph 49).