Crowson, Re [2001] QSC 393 (22 October 2001)

[2] Mrs Crowson's husband died on 19 June 2001 in the Nambour Hospital aged fifty-eight years. He left substantial assets.

[3] At the hearing before me the applicant sought, and obtained, leave to amend her originating application. After discussions concerning the proposed course of the hearing, it proceeded as an application for two declarations: first, that the deceased `lacked capacity as at 31st May, 2000 to give instructions to Wight Shera, Solicitors, to file on his behalf an Application for final and/or interim orders in the Family Court of Australia pursuant to the Family Law Act 1975 with respect to the assets and financial resources of the [deceased] and of [the applicant]'; and secondly, that `the Will and Testament purportedly made by the [deceased] on or about 26 May, 2000 is invalid'. The applicant also seeks such `further or other order as to costs or otherwise including indemnity costs as the court deems meet'. (Exhibit 4 is a copy of the will in question.)

[4] In April 1999 the deceased was diagnosed as suffering from progressive supranuclear palsy, a degenerative and incurable illness. The condition of one afflicted by it slowly deteriorates. In about 1996 the deceased had begun to suffer from the symptoms of the disease.

[5] By mid-2000 the deceased was still usually able to communicate - with some difficulty - by ordinary speech, but on occasions was unable to. He then had, however, been equipped with a `light writer', which enabled him to type messages that could be heard when a computer-generated voice was activated. A videotape was made of the execution of the will of 26 May 2000, and the deceased can be seen and heard replying to questions both directly and with the aid of the light writer.

[6] There is evidence before me to the effect that at the relevant times the deceased had the requisite capacity.

[7] Dr David Robertson, general practitioner, saw the deceased on 26 April 2000, 2 May 2000, and 9 May 2000 at the Tricare Nursing Home, Mooloolaba when the deceased resided there. On 11 May 2000, Dr Robertson had a brief conversation with the respondent. The respondent asked Dr Robertson if he considered that the deceased was capable of making decisions about his finances and other matters for himself and of understanding and signing legal papers. Dr Robertson's response was that he believed the deceased had retained `his powers of reasoning and likewise could understand the nature of legal documents and was capable of making his own decisions'. The respondent then asked Dr Robertson to provide written confirmation of that opinion. Dr Robertson agreed to provide the respondent with a letter. The letter, which was dated 11 May 2000, was, formal parts omitted:

This patient suffers from progressive supra nuclear palsy. He has an associated almost complete inability to speak. He can communicate using a machine.

He would appear, for the most part, to have retained his ability to understand, and likewise has not lost his powers of reasoning and logic.

In giving oral evidence Dr Robertson qualified somewhat the opinion expressed in the letter. He said, when cross-examined on behalf of the applicant, that the deceased `could probably make reasoned judgments about his simple activities of daily living like, "Do you have pain?" ' Then, asked whether that would be `the cut-off point', Dr Robertson replied `I think so, yes'. He agreed that `certainly' questions of judgment about commercial matters, judgment about family matters, judgment about emotional matters, and judgment about testamentary matters were probably, `with hindsight', beyond the deceased. Asked in re-examination by the respondent about his letter of 11 May 2000, Dr Robertson said that it appeared `in the most part he retained his ability to understand. Well, maybe - I feel that although I said that on 11 May, I mean with a bit of hindsight, I probably overstated the case'. Later in re-examination Dr Robertson said, `As I said, I probably on 11 May last year in the letter overstated what his ability would be, but, by the same token, it's very difficult for anyone to know exactly what degree, if any, reasoning he had. I made the point that he certainly had some degree of reasoning, but to what extent, whether he would be able to understand complex documents, I don't - I'm sure he wouldn't, but he would be able to understand simple things, I feel that he may very well have been able to understand simpler things.' Asked whether he meant simple documents Dr Robertson replied, `Well, I think he might have even had the ability to understand simple straightforward documents, but I'm sure he couldn't - he didn't have the ability to understand anything complex.'

[8] It is important to note that Dr Robertson's mind was not directed to the question of the deceased's capacity until after the last of the three consultations, which, from his notes, appear to have been brief. Dr Keh Khor, general practitioner, was, on the other hand, asked to assess the deceased's capacity to execute an enduring power of attorney on the first of three consultations. Dr Khor saw the deceased on 18 May 2000, 29 May 2000, and 13 June 2000. He administered the Mini Mental State Examination to assess the deceased's cognitive ability. The deceased's score was 29 out of 30. On 18 May 2000 Dr Khor signed a certificate that the deceased had undergone a medical examination that day and had been found to be `mentally fit and able to conduct his own legal affairs'. The dates of the deceased's consultation with Dr Khor are of course of great moment because the days the subject of the applications for declarations are within the period covered by the consultations.

[9] The date of the consultation with Dr Alan Keen, psychologist, is similarly important. On 29 May 2000 Dr Keen conducted a neuropsychological examination of the deceased to assess his mental capacity to establish whether he was capable of making his own decisions, `particularly whether he could make a power of attorney and sign other legal documents'. Dr Keen provided a report dated 31 May 2000. Dr Keen based his assessment on his observations and interaction with the deceased over the course of the consultation, which took two and a half hours. According to Dr Keen the deceased did not show `significant deficit in his general cognitive capacity', while he did show `major deficit in his speech, spasticity in his facial muscles, severe movement problems, and spasticity and rigidity in other limbs'. The deceased, Dr Keen swore, was able to communicate through his `typewriter'. Dr Keen's assessment of his condition was that `from a standpoint of his intellectual capacity, memory, attention, concentration, comprehension, and general cognitive capacity at the time of [the] assessment, he was capable of making major decisions about his life, such as executing a power of attorney and signing legal documents'.

[10] Mr Robert Hamwood, barrister-at-law, was briefed by solicitors Wight Shera to appear on behalf of the deceased on an application before the Family Court of Australia at Brisbane on 14 June 2000 for orders in relation to financial matters including a lump sum maintenance payment for medical treatment and maintenance for care, and orders in relation to the disclosure of financial information and the appointment of trustees. Clearly enough, that was the application which is the subject of the first declaration sought by the applicant in this proceeding. After Mr Hamwood was briefed in the application before the Family Court, the applicant began this proceeding, which came before Byrne J. on 13 June 2000. It was mentioned at the call-over and, following agreement between Mr Hamwood and counsel for the applicant that directions should be made regarding the further conduct of the matter, it was stood down. After the matter had been stood down, Mr Hamwood went with his instructing solicitor Mr Mark Shera, the deceased, and the respondent to the Supreme Court cafeteria for `upwards of 20 minutes'. Concerned as counsel appearing for the deceased in proceedings which were based upon the deceased's assertion that he considered his marriage at an end and wished to apply for appropriate financial orders, Mr Hamwood wished to satisfy himself that the deceased was, despite his physical disabilities, `in control of his own thought processes and able to make decisions with respect to his own interests and convey those, albeit with some difficulty, to persons representing him'. In an affidavit filed on 28 February 2001 Mr Hamwood gave details of his observations of the deceased, and recorded his conclusion that following those observations he had no doubt about the deceased's capacity in the matters I have mentioned.

[11] Against the evidence to the effect that at the relevant times the deceased had the requisite capacity there is opinion evidence from three experts which, if accepted, could cast doubt on the correctness of the former evidence.

[12] Dr John Bradfield, neurophysician, first saw the deceased on 17 March 1999. Following that consultation the deceased was admitted as an inpatient under Dr Bradfield's care to the Department of Neurology, Royal Brisbane Hospital for further neurological assessment. Following that assessment Dr Bradfield diagnosed the deceased's condition as progressive supranuclear palsy. Dr Bradfield last saw the deceased in 1999 on 26 July. On 7 July 2000 he again saw the deceased for the purpose of a neurological report. In a report dated that day to the applicant's solicitors Dr Bradfield recorded his speaking to the applicant and then speaking to the deceased alone. Dr Bradfield recorded the deceased's having told him of events that had happened earlier in 2000. The doctor found on further questioning that the deceased was orientated in time and place and had slight insight into his disabilities, but that there was obvious impairment of cognitive function which Dr Bradfield said should be assessed fully by a neuropsychologist. Dr Bradfield then recorded the following opinions about the deceased's capacity, which are relevant to the issues before me:

I would be of the opinion that on 12 May it would be most likely that Mr Crowson had no capacity or insight to give an enduring Power of Attorney. I also very much doubt whether Mr Crowson has the capacity to make the decision to prosecute a matrimonial property settlement and to unwind the matrimonial property held jointly by Mrs Crowson and himself and the assets of the family company and family trust.

I do not consider he has the capacity to make business decisions about whether or not assets of the family company ought to be sold and at what price.

I do not consider he has the capacity to make rational decisions about health matters. I state this because I have spoken to him at length about his condition back in 1999 and also apparently Dr Neynens at Nambour has also had long talks to him about embryo transfers and how that procedure is experimental. Nonetheless, Mr Crowson still wants to proceed with this form of treatment. I believe he has a fixation on this treatment and would spend any amount of money to get a cure of his condition. As the condition impairs memory function I consider this memory dysfunction then clouds his rational thinking.

As mentioned above, in addition to seeing Dr Leong I consider it would be beneficial if an assessment from a neuropsycologist could be obtained to accurately ascertain Mr Crowson's present mental state.

Finally in conclusion, I would be in agreement with the opinion of Dr Neynens, consultant geriatrician, report dated 8 June 2000.

Dr Bradfield's final statement concerns a report of Dr Emiel Neynens.

[13] Dr Neynens recorded his having administered the Mini Mental State Examination in August 1999 when he first saw the deceased, whose score was then 22 out of 30. The deceased was an inpatient under Dr Neynens's care at the Nambour Hospital following presentation with aspiration pneumonia and the effects of falls. Dr Neynens expressed the opinion that, given the generally slow cognitive decline seen in progressive supranuclear palsy, a formal evaluation of the deceased's cognitive function, and in particular his testamentary capacity, by a `psychiatrist/geriatrician/neurologist' would be desirable. Dr Neynens expressed the opinion that if the deceased were to be found to be incompetent then, it would be highly likely that he was incompetent on 12 May 2000. Dr Neynens went on to say that he did not believe that Dr Khor's certificate dated 18 May 2000 should carry any weight unless he could fully substantiate it.

[14] Dr Michael Leong, director of psychogeriatrics at the Princess Alexandra Hospital, examined the deceased on 20 July 2000 from 2 p.m. to 3.45 p.m. Dr Leong found that the deceased scored 22 out of 30 on the Mini Mental State Examination, but 26 out of 30 if the score on spelling the word `WORLD' backwards were used. Dr Leong's conclusion was that the deceased did not have the capacity to give an enduring power of attorney on 12 May 2000, and that he would not have had the capacity to do so after at least 21 January 2000 when he suffered a head injury and was admitted to hospital. Dr Leong also expressed the view that the deceased did not have, and would not have had, the capacity to make decisions `to prosecute a matrimonial property settlement and to unwind the matrimonial property and family companies and trusts' and did not have the capacity to make business decisions about whether or not assets of the family company ought to be sold and at what price.

[15] In a report dated 11 February 2001 Dr Leong noted that Dr Keen in his report of 31 May 2000 did not specify `what specific neuropsychological tests or instruments he used to examine Mr Crowson's neuropsychological functioning and he did not quantified [sic] the results of such testing to substantiate his conclusions that Mr Crowson is totally capable of making conscious decisions about his life - - - - and that he can manage his personal affairs, finance, appointments & sign legal documents'. Dr Leong said that Dr Keen's report, in his opinion, was a most unusual neuropsychology report, as compared with the comprehensive report of Mr Louis Salzman dated 28 July 2000 - to which I shall refer further - which specified all the tests used, described how the tests were administered, and gave the results `in percentile compared with standardised age related norms'. In Dr Leong's opinion Dr Keen's report and conclusion could not be given much credence compared with Mr Salzman's report.

[16] Mr Louis Salzman, counselling and clinical neuropsychologist, assessed the deceased on 27 July 2000. He administered a number of tests: the Peabody Picture Vocabulary test, the Standard Progressive Matrices test, the Warrington Recognition Memory test, and the Wisconsin Card Sorting test. Mr Salzman's conclusions, recorded in his report dated 28 July 2000 to the applicant's solicitors, were as follows:

Mr Crowson has suffered a very significant loss of intellect since he was last assessed by Mr King in February 1999 and his intelligence has dropped from the average range to the borderline mentally retarded to mentally retarded range.

Based on his overall assessment, Mr Crowson would be extremely vulnerable to the influence of others. Because of his inability to remember, his poor ability to analyse material and his borderline mentally retarded to mentally retarded level of intellect he would be inclined to respond to others by complying with their wishes in order to terminate a situation in which he was frustrated or lacking understanding. In other words when he becomes confused he will give any answer, either right or wrong in order to terminate the situation in which he is involved.

It is possible on careful examination and interview to elicit from him information based on his underlying feelings and desires. For example he indicated that he did not want to terminate his marriage by answering no to the question, "Do you want to end your marriage." He indicated that he wanted his wife to manage his affairs by responding yes to the question "Do you want your wife to manage your affairs." However, because he becomes very easily confused any enquiry into his underling [sic] feelings has to be kept brief so that he does not become confused and frustrated in response to the questions he is being asked.

Based on his presentation and test performance, I am of the opinion that he would not have had testamentary capacity nor would he have had the ability to understand the implications or effects of his behaviour or the capacity to make a well considered decision to prosecute a property settlement or to give an Enduring Power of Attorney on 12 May 2000.

Mr Crowson is easily confused and because of his confusion he is vulnerable to the influence of others and therefore he could be lead to make decisions which he would not otherwise freely make on his own.

Mr Crowson does not have the capacity to make the decisions necessary to prosecute a matrimonial property settlement and to unwind the matrimonial property held jointly by Mrs Crowson and himself, or to unwind the assets and liabilities of the family companies and family trusts.

He does not have the capacity to make business decisions about whether or not the assets of the family company ought to be sold and at what price.

He does not have the capacity to make rational decisions about health matters such as whether or not he ought to undertake the cell growth treatment spoken at Monash University, or to travel and expend the monies in connection therewith.

The reference to the assessment in February 1999 is to an assessment of general intellectual capability by Mr Graham King, psychologist, recorded in a report dated 1 March 1999. Mr King used the Wechsler Adult Intelligence Scale - Revised test for assessing general cognitive capability. The results placed the deceased within the average band of cognitive capability and indicated relative strength in the verbal area, where he was placed at the sixty-ninth percentile.

[17] In a report dated 7 February 2001 to the applicant's solicitors, Mr Salzman said that he was `of the opinion that unless formal tests are administered to evaluate a person's executive functions then it is not possible to determine whether or not a person, who is unable to communicate verbally, has retained their powers of reasoning and whether or not they are able to understand legal documents'. Referring to Dr Neynens's report of 8 June 2000 and Mr King's assessment, Mr Salzman wrote:

I noted that Dr Neynens administered the Mini Mental State Examination when he first saw Mr Crowson in August 1999 and at that time he reported that the results of this test were consistent with early dementia. Dr Neynens reported that Mr Crowson had difficulty with his short term memory, he was unable to remember three items after a short delay, he was unable to place the hands correctly on a clock to indicate a time of "twenty minutes to four", and on a test of concentration he scored two out of five. Dr Neynens, treated Mr Crowson as an in-patient for approximately six weeks in early 2000. Based on Dr Neynens assessment of Mr Crowson, prior to the start of litigation, a diagnosis of dementia was made.

Based on widely accepted tests of cognitive abilities Mr Crowson demonstrated in late 1999, early 2000, and in mid 2000, that he did not have testamentary capacity.

I noted that Mr Crowson was assessed by Mr Graham King, psychologist in February 1999. Based on Dr Neynens' assessment and my assessment in July 2000 it would appear that Mr Crowson's cognitive abilities deteriorated very rapidly between the time Mr King assessed Mr Crowson and when I assessed him in July 2000. Therefore it would be reasonable to assume that in May 2000, Mr Crowson's cognitive abilities were significantly impaired to the point where he would not have had testamentary capacity.

In a further report dated 26 February 2001 to the applicant's solicitors, Mr Salzman referred to the assessments of Drs Khor and Keen. Referring to Dr Khor's assessment Mr Salzman said:

It is important to note that the Mini Mental State is a rough screening tool used to help determine whether or not a person has dementia and it is more sensitive to the second stage of dementia than it is to the first stage. It is not a neuropsychological test. It's main use is to determine whether or not a person's cognitive deficits are severe enough to conclude that they have dementia, however, a reasonable score on this test does not in anyway exclude the possibility that a person has significant cognitive deficits or that the person is dementing.

Referring to Dr Keen's assessment, Mr Salzman noted that Dr Keen had said that his assessment was performed purely on his observations and interaction with the deceased over the course of a two and a half hour consultation. That suggested that Dr Keen had administered no neuropsychological tests whatsoever, Mr Salzman commented. Referring to Dr Keen's statement that the deceased did not show significant deficit in his general cognitive capacity, Mr Salzman said that that statement obviously `can not be supported by psychological tests and is based only on an interview, a method which has been shown to be totally unreliable with respect to the analysis of a person's level of cognitive functioning'.

[18] Giving due weight to the opinions of Drs Bradfield and Leong and Mr Salzman, I nonetheless conclude that the deceased had the requisite capacity on the relevant days in May 2000. The cumulative effect of the evidence of the three independent witnesses who were able to observe him then (Drs Khor and Keen and Mr Hamwood) together with the evidence provided by the videotape leads me to that conclusion. I should add that I do not entirely discount Dr Robertson's initial assessment despite his later concessions. It may be accepted that there were flaws in the methods adopted by Drs Khor and Keen, but in my view there is no doubt that they are skilled and experienced observers. Mr Hamwood impressed me as a careful and reliable observer not given to rash judgment. It must be borne in mind that the deceased's condition was progressive, and it does not follow that his condition as observed by Mr Salzman in late July 2000 was the same as his condition two months earlier. Accordingly, I shall refuse the applicant the declarations she seeks.