Flynn v Roccisano [2004] VSC 346

5. Disputes over a will are often accompanied by bitterness and sadness. The hearing of the application for revocation before me was not bitter, but it was sad. The sadness flowed from the apparent schadenfreude effect of the schizophrenia suffered by Joan Bishop. Sadly, she seemed to benefit over the lifetime of her daughter from inflicting the pain of rejection on her daughter. She did it in a way that was troubling enough in the years of her daughter's childhood and early marriage. She did it in spades from 1975 onwards. She did it in her will of 15 June 1988. She omitted her daughter. She made no later will.

8. At the hearing, evidence was given before me by Shirley Flynn, by her husband Geoffrey Flynn, by Mr Roccisano, and by Professor Daniel O'Connor. All four were credible witnesses. Shirley Flynn and Professor O'Connor were particularly impressive. There were also affidavits from Shirley Flynn and Professor O'Connor and two former neighbours of Joan Bishop, namely Ourania Kantzelis and Lance Merrett. I had the file of Mr Roccisano relating to the making of the will. I also had copies of documents extracted from hospital and medical files concerning Joan Bishop. Those copy documents had been obtained by Shirley's lawyers from the Department of Human Services under the Freedom of Information Act. I shall refer to them as the "FOI documents". There was a high level of consistency between information in the FOI documents and that provided by Shirley and the two neighbours.

11. It appears that Joan Bishop was born in England on 15 December 1928. Later in her life, she appears to have given different accounts, as to aspects of her childhood and as to the father of Shirley and other matters, to Shirley and to others seeking her history for medical reasons. For example, Shirley was born in England on 27 May 1948. If the two birth dates are correct, Joan Bishop was aged 19 when Shirley was born. Joan Bishop was later to tell others that she was 26 when her daughter was born. On any view, it does appear that Joan Bishop had a significantly disordered childhood. It is also clear that she treated Shirley not like a normal mother would, but at all times, and sometimes worse than at others, in a callous, dismissive fashion.

14. In about 1952, in England, Joan Bishop married Herbert Bishop. He was known as Bert, and I will so refer to him. Bert was an engineer. In about 1957, Bert was posted to Australia. Joan Bishop and Shirley followed Bert here some months later. Bert was to prove a loving step-father to Shirley. There were periods when Bert's closeness to Shirley varied. The periods of distancing appear to have been for a variety of reasons. One reason was Bert's loyalty to Joan Bishop. I am satisfied, for reasons that I will come to later, that another reason was Bert's disposition to collude with his wife for the sake of peace.

17. Shirley described how in many ways and at many times from early childhood, her mother rejected her. An example of how dismissive of Shirley as a small child that Joan Bishop was, is that, on the boat trip to Australia, Joan Bishop told Shirley not to tell anyone that she was the daughter of Joan Bishop. When Shirley was a teenager, Joan Bishop used to scream at Shirley as to how much she hated Shirley. During her teenage years, in the 1960's, Shirley found that her mother's attitude to others as to Shirley herself, worsened. Shirley had to learn to deal with all outsiders. Joan Bishop became withdrawn and anti-social. For a period of two years, she did not leave the house. The insidious effects of schizophrenia were becoming more manifest within the family. Joan Bishop was later to provide as part of her history that she had, in 1971, seen a Dr Chazan for auditory hallucinations.

20. Joan Bishop's physical health over the years seems not to have been too bad. Shirley recalled that, some years after arriving in Australia, her mother had attended Sir Edward Dunlop for treatment for thyroid problems. On 24 June 1988, only days after she made the contested will, she presented to a doctor in Moonee Ponds, Dr Pienkos, with symptoms suggesting thyroid hyper-activity. Dr Pienkos recommended investigation and treatment. Joan Bishop was not prepared to abide that recommendation.

23. In 1965, Shirley matriculated. She then commenced two years of teacher training. In 1967, at the age of 20, she took up her first teaching post. She moved out of the family home, which was then at 106 Dean Street, Moonee Ponds. That home was later to form the bulk of the estate of Joan Bishop. Shirley tried to maintain regular contact with her mother. Joan Bishop responded by telling Shirley that she did not want to see her. At about this time, Shirley was told by a friend that Joan Bishop had been admitted to a mental hospital. Shirley was not able to find out for what condition the admission had been made. In 1969, Joan Bishop came to Shirley's 21st birthday party celebration. She came only after being satisfied that it was a low key affair.

26. In 1970, Shirley moved to a new teaching post at Warrnambool. She still tried to keep in touch with Joan Bishop and Bert, inviting them to come to Warrnambool. Joan Bishop's response was to take a further step towards limiting contact. She contacted the vicar who supervised a youth club with whom Shirley was working and made some unfounded claims as to Shirley.

29. In 1972, Shirley married at Warrnambool, Geoffrey Flynn. He is known as, and I will refer to him as, Geoff. She and Geoff have remained living in the Warrnambool area thereafter. They were to become the parents of six children. The first was born in January 1973, and the second in May 1974. Shirley continued to try to get Joan Bishop and Bert to visit her and her family. In about 1975, Joan Bishop wrote a letter to Shirley. That rare event led to Shirley visiting Joan Bishop and Bert at Moonee Ponds. Joan Bishop and Bert did make two visits to Warrnambool at about that time. Shirley recalled those visits with mixed reactions. Both were marred by Joan Bishop stating that Shirley was not paying her mother the attention that her mother merited. I make the comment that, at that stage, Joan Bishop seems to have been easily slighted by trifling matters, such as her receiving a card that did not fit expectations. Bert spoke to Shirley of his concern as to his wife's condition. The relative amelioration in the relationship between mother and daughter appears to have been at a time when Joan Bishop was receiving medication for her mental illness. On the other hand, Joan Bishop told Shirley that she knew how to fool her doctors as to the taking of medication.

32. In the following years, there were no further visits. Shirley and Geoff continued to raise their own children. She continued to write to her mother. She also tried to keep in touch by telephone. The letters were not replied to. When she made telephone calls, she received from her mother at best a curt, chilly response. At one point, Joan Bishop sent Shirley a package of photos of Shirley and other memorabilia, but with a note. In the note, she wrote that she did not want to see Shirley or the children again, and that Shirley should forget that her mother was her mother. Joan Bishop occasionally made abusive phone calls to her daughter. When in Melbourne, Geoff continued to make visits to 106 Dean Street, only to be told to go away. On a visit to Melbourne in 1988 for a wedding, Shirley called at the Moonee Ponds home, only to have her mother open the security peephole, and scream at her daughter to go away.

35. 1988 was the year that Joan Bishop made her will. It was prepared by the executor named in it, Mr Roccisano. Mr Roccisano is a suburban solicitor. On 9 June 1988, Bert and Joan Bishop attended at his office. They gave him instructions for mutual wills. They presented in a neat and tidy way. They provided their names and their address. They were clear in their instructions. The estate of the first to die was go to the survivor. The estate of the survivor was to be divided between 3 nominated charities. The provision of instructions only took about ten minutes. Mr Roccisano recalled that Joan Bishop talked more than Bert. Mr Roccisano saw nothing in their demeanour to indicate that either suffered from a mental illness. Given that they were clear in their instructions, Mr Roccisano asked no questions about assets or children or other relatives. On 10 June, Joan Bishop rang him to say that the property must be sold. On 15 June, they came in to execute the wills. On 20 June, Joan Bishop made a call to him to note that they wanted to be cremated at Springvale. Mr Roccisano had not seen Joan Bishop before 9 June. Nor had he been contacted by her again after 20 June 1988. His file revealed that after Bert died, State Trustees Limited contacted Mr Roccisano, and obtained from him the will that he had made for Bert.

38. What was Joan Bishop's mental state at that time? That brings me to the FOI documents. Those documents were closely studied by Professor O'Connor. I have also closely reviewed them. I make the comment that I have some reservations as to the reliability of some aspects of what appear to be matters voiced by Joan Bishop herself. It is not clear from the documents when Joan Bishop was first treated for mental illness. It is clear that she was admitted to the Royal Park Hospital on 24 August 1975, and that she remained there until 8 September 1975. On 24 August 1975, Dr Tuxen from the hospital recorded that he noted symptoms, which included: "thought disorder, auditory hallucinations and other features of catatonic schizophrenia". Dr Tuxen noted that he had been told by Bert that Joan Bishop had received psychiatric treatment in the past. Dr Cade noted on 29 August 1975 that Joan Bishop had exhibited bizarre posturing and confusion. Joan Bishop was readmitted on 11 September and remained then until 2 October 1975. On 30 October 1975, Dr Cade made a record of further earlier symptoms, including "disorientated" "thought insertion" and "numerous worries re marital situation and impotence in husband", and of a diagnosis of acute anxiety state and panic reaction.

41. Twice in 1989, Shirley sought help for her mother from the Royal Park Psychogeneric team. That the requests were made by Shirley is but one of many examples of a continuing concern shown by Shirley for her mother. That concern was clearly not reciprocated. Joan Bishop refused to speak with the clinicians who came to visit.

44. In 1991, Joan Bishop was admitted again to the Royal Park Hospital between 23 November 1991 and 29 December 1991. That was after she was noted to have failed to have acted promptly to call for attention to be given to Bert, when he suffered an injury at home. There was a considerable delay in his being attended to and taken to hospital. When Joan Bishop was later asked about her husband, she spoke of his being in the care of his doctors, and that she had nothing to say. As Professor O'Connor was later to aptly comment, that that was a curiously muted response. Professor O'Connor was to make other like comments. He noted as a clear example of Joan Bishop's concrete thinking, her responses when asked in 1991 if she had children. She said "No". When asked about Shirley, she said that as Shirley was a woman of 40, she was no longer a child. The comments of Professor O'Connor are based on matters recorded in reports of a Dr Sanci the psychiatric registrar of the Royal Park Hospital. Dr Sanci recorded that Joan Bishop was treated by Dr Chazan for auditory hallucinations in 1971, and between 1977 and 1986 by Dr Wijesinghe for schizophrenia. There was a tendency for Joan Bishop's condition to relapse when medication was reduced. She had taken herself off Largactil in May 1986 and refused to take further medication. Joan Bishop made it clear that she did not want follow up treatment.

47. Dr Sanci also recorded the circumstances of visits in 1991 by Joan Bishop to the Moonee Ponds Police Station once a week for 6 months asking to be "cleared". She said to the police that she was being directed on "World Business". She was not prepared to talk later with clinicians about the "World Business", but later still she told the Mental Health Review Board that the matter of "World Business" had seemed very real to her at the time. The police were informed that Joan Bishop had attacked an elderly lady in the street after Joan Bishop had lain down in the street and the elderly lady went to help her. Asked later about the incident, Joan Bishop said that "after you have laid down and got up, you can do what you want." From hospital staff, there were accounts of Joan Bishop talking to herself, to the walls and to the electricity meter box. During the time that Joan Bishop was in hospital, Shirley was noted to be in regular contact with the hospital staff.

50. After his hospitalisation, Bert did not go back to the Moonee Ponds home to live with Joan Bishop. After a time in a nursing home, he went to live with Shirley. He lived for the last 8 months of his life with her. He died in July 1993. Shortly before he died, Bert raised the topic of his will with Geoff, only to be told not to do anything about it. Bert was described by Shirley as a quiet unassuming, clever man whom she adored. Shirley saw him as being intensely loyal to Joan Bishop until almost the end of his life. Joan Bishop survived him by eight years. She continued to reject Shirley. Shirley and Geoff continued in their efforts to re-establish contact with Joan Bishop. She would not answer the door. She died alone at her home on 6 December 2001. Police who broke into the home found her body. The coroner was called in. Professor O'Connor summed up the last years of Joan Bishop's life in saying that she spent them in a state of profound mental turmoil and social isolation.

53. I referred earlier to my having considered affidavits from two neighbours of Joan Bishop, Ourania Kantzelis and Lance Merrett. Ourania Kantzelis lived at 102 Dean Street from about 1986. Lance Merrett lived at 104 Dean Street from about 1990. He did not meet Joan Bishop until after she made her will. Evidence of behaviour of Joan Bishop before and after June 1988, does have some bearing upon the state of Joan Bishop's schizophrenia as at the time of her giving instructions for her will. Mrs Kantzelis spoke of Joan Bishop having rejected angrily every attempt made by Mrs Kantzelis to communicate with Joan Bishop, and of Joan Bishop having otherwise behaved so as to make Mrs Kantzelis fearful of Joan Bishop. Joan Bishop regularly screamed out at the neighbours from her front yard, and made a lot of noise inside the house, so that measures had to be taken by Mrs Kantzelis and her husband to modify their living arrangements. Not all matters noted were unfavourable. Mrs Kantzelis spoke of Joan Bishop as being a striking woman, who was generally clean and properly dressed. Mr Merrett spoke, amongst other things, of how Joan Bishop responded to his greetings to her. On one occasion, she told him to go to hell. On another, she threatened to belt him. He spoke of her regular screaming at night, of her regularly raising her voice inside and outside her house, and of her strange utterances, and petitioning of God.

56. I must refer, albeit briefly, to "the other" Joan Margaret Bishop. On 15 March 2002, a grant of probate of a will of Joan Margaret Bishop dated 11 April 1989 to State Trustees Limited was made in this court. Only later was the sort of check made that revealed that there were two women who had a link to State Trustees Limited and who had the name Joan Margaret Bishop. The Joan Margaret Bishop who made the will dated 11 April 1989 was found to be still alive. The grant was revoked by an order made in this court on 30 May 2002.

59. On 7 June 2002, a caveat was lodged in this court on behalf of Shirley. On 14 August 2002, Mr Roccisano lodged the necessary papers with the court seeking a grant of probate of the will of 15 June 1988. On 30 August 2002, a notice of withdrawal of the caveat was lodged on behalf of Shirley, with Mr Roccisano signing same as consenting. On 4 September 2002, a grant of probate was made to Mr Roccisano. On 21 August 2003, application was made to this court by Shirley for the revocation of the grant on the ground of want of testamentary capacity. Mr Phillips, who appeared for Mr Roccisano to oppose the application for revocation, pointed to the absence of explanation for the delay as a factor warranting my not acceding to the application. It is not a matter I find to be of any real significance. Mr Phillips appeared not to have been instructed as to the lodging of the caveat on 7 June 2002. Mr Roccisano gave no evidence bearing on the circumstances of the withdrawal of the caveat that he consented to. Judicial notice can be taken of the time usually taken to obtain material like the FOI documents. Questions were put to Shirley including as to an apparent decision to proceed by way of an application under Part IV of the Administration and Probate Act 1958. The answers only served to underline her understandable disposition to rely upon the advice of her lawyers as to how to proceed. Having to come to court appeared to be a bewildering but cathartic experience for Shirley. She appeared to still have trouble coming to terms with the lifelong rejection of her by her mother. She came to court because of the support shown to her by her husband and other family. At times, she was over-inclined to provide answers that were non-responsive. Nonetheless, the answers satisfied me that she was bringing the matter before the court in a responsible way that accorded with her family's wishes and the advice of her lawyers.

62. I would also record that I found nothing to criticise in Mr Roccisano. He carried out in a timely and efficient way what he perceived to be the reasonable instructions of his clients. They each wanted a simple will. He promptly provided it. At the appropriate time, as to Bert, he co-operated with the State Trustees Limited. At the appropriate time, as to Joan Bishop, he proceeded to seek a grant of probate.

65. I turn to the applicable legal principles. A review of the principles, as distinct from argument as to the proper application of them, took up little time before me. When the hearing started, I provided to counsel a table of the cases that I had considered. I now set out those cases, having added one further case that Mr Phillips drew to my attention.

(1870) LR 5 QB 549

(1897) 23 VLR 197

[1924] HCA 21; (1924) 34 CLR 558

[1941] HCA 22; (1941) 66 CLR 277

[1942] HCA 13; (1942) 66 CLR 295

[1943] SASR 304

[1972] VicRp 75; [1972] VR 646

(1988) 14 NSWLR 698

[1998] VSC 183

[1999] NSWCA 244.

[2002] NSWCA 13

[2003] VSC 81

[2004] VSC 211

70. An appropriate start is with the much-quoted statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549at 565:

"It is essential to the exercise of (testamentary) 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 and bring about a disposal of it which, if the mind had been sound, would not have been made."

74. That statement was quoted by each of Gleeson CJ and Kirby P on the hearing of the appeal in the case of _Re Estate of Griffith; Easter v Griffith (_Unreported, 7 June 1995, NSWCA). Griffith contains both a recent comprehensive statement of the principles to be applied by me and a detailed review of their application. Griffith is a little troubling to cite. Each judgment starts at page 1. That review resulted in different conclusions, in a quite similar case to the instant case of a will of a mother excluding her only child. The reference in Banks v Goodfellow to "insane delusions" prompted Gleeson CJ to say in Griffith (at Gleeson page 11):

"...psychiatric knowledge has developed a great deal since those early formulations of the relevant legal principles. There is a degree of artificiality in seeking to force all manifestations of "insanity" under the rubric of delusion... The attention paid to delusions is understandable, but the law must be sufficiently flexible to take account of developments in psychiatric understanding. The critical question...concerns mental capacity to comprehend and appreciate the claims upon one's bounty."

78. I have taken the following extracts from what was said by each of Gleeson CJ and Kirby P in Griffith as summarising the approach that I should adopt. First Gleeson CJ, (between Gleeson pages 7-13):

"The authorities have used the term "inofficious" ... to refer to a will "in which natural affection and the claims of near relationship have been disregarded" ... The case confronted the trial judge with the difficulty of distinguishing between a "harsh, unreasonable judgment of character" which is not, on that account alone, inconsistent with a sound disposing mind, and a "morbid aberration" which so affects a testatrix's judgment of a person with a natural claim on her bounty as to warrant the conclusion that she lacked the capacity to make a valid will ...Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted... This formulation of the onus of proof, well established by authority ... invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily... difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind...Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid...great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion."

82. Then, Kirby P, in these passages (between Kirby pages 3-6):

"...in our society, the law recognises and upholds freedom of testamentary disposition... the basic principle of testamentary freedom remains...It is reflected in the expectation of testators that, ordinarily their wills will be observed unless the law, for very good reason, provides otherwise....The freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one's own property. As one can be in one's lifetime, so, by law, a testator can be at death...A duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding. Sanity is presumed until the contrary is shown...In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will...Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."

86. Mr Phillips submitted to me that there was no convincing evidence of lack of testamentary capacity. He particularly referred me to the authorities from which it is clear that a person may suffer from mental illness and yet still possess a sufficient understanding and capacity to make a valid will. Mr Phillips put to me arguments directed to the character of "the animosity between Joan Bishop and Shirley". Points he made included: that it was a long standing animosity; that it started at a time when the mental illness was not manifest; and, that it continued during the period when Joan Bishop was on medication. Mr Phillips put to me that a distinction should be drawn between Joan Bishop isolating herself from Shirley, as against saying that Shirley did not exist. I accept the distinction but I see both as different forms of rejection. I consider it to be of major significance that the animosity was not mutual. Indeed Shirley was extremely persistent in trying to overcome the animosity. The rejection was ameliorated when Joan Bishop was on medication.

89. Mr Phillips put to me arguments as to timing. He focused on the absence of direct evidence of Joan Bishop's mental state as at June 1988, or that she was psychotic at the time, or that she suffered from any delusion linked to Shirley. The closest medical contact in time was when Joan Bishop saw Dr Pienkos on 24 June 1988, yet Dr Pienkos made no note of psychotic problems. Mr Phillips also stressed before me the evidence as to the relative normality of Joan Bishop. He pointed to the evidence to the effect: that she was capable of acting in a normal way; that she was able to live in and operate in, the community almost all of the time; that she spent only 10 weeks in institutions in over 30 years; that the will was validly executed and rational on its face; that there was nothing in the conduct or demeanour of Joan Bishop before Mr Roccisano when the will was made to suggest that her mental state was other than normal. Further, he put to me, that schizophrenia generally does not, and specifically in the case of Joan Bishop could not, be seen to result in a marked decline in intellectual or cognitive ability. Further, Bert's will was in the same form as that of Joan Bishop, and it is not suggested that Bert lacked testamentary capacity.

92. I was satisfied that in the evidence of Professor O'Connor, taken with the other evidence, there were to be found more than adequate responses to the allied arguments as to timing and relative normality. In short, Joan Bishop did have a capacity to act relatively normally for short periods. But her severe chronic schizophrenia affected her capacity to bring to the making of her will a sound disposing mind, and it occasioned her making an inofficious will.

95. Professor O'Connor has been for some 14 years, the Professor of Old Age Psychiatry at Monash University and Director of the Kingston Centre Aged Persons' Mental Health Service in Cheltenham. He has had considerable research and clinical experience in the assessment, diagnosis and treatment of mental disorders in older people. Professor O'Connor noted, as I did, the high level of internal consistency as to the information within the medical records, and between that information and the accounts given of Joan Bishop's behaviour by each of Shirley and the two neighbours.

98. Professor O'Connor stated his opinions to the following effect. Joan Bishop suffered from serious, chronic schizophrenia for over 25 years. She had no insight into her condition. The condition was manifest in various other symptoms, including social withdrawal, fearfulness and paranoia. She became increasingly suspicious, hostile and abusive to Shirley, along with neighbours and clinical health professionals. There was ample evidence of disordered thinking, concrete thinking and inappropriate behaviour. The hostility remitted to some degree at times when she agreed to take medication. She had consistently refused medication that was capable of relieving some symptoms of the condition. From the time in 1986 that Joan Bishop refused to take medication, she became more disturbed. The schizophrenia impaired her judgment. The condition contributed substantially to her disregard for Shirley's well-being. With that impaired judgment, Joan Bishop failed to recognise that Shirley existed and had a claim on her estate.

101. He elaborated on certain matters during cross-examination. Between 1975 and her death in 2001, Joan Bishop had been hospitalised for ten weeks as an involuntary patient. He saw as significant that she had still managed to avoid a detailed psychological assessment. He explained why an early discharge could not be interpreted as indicating that there was not an ongoing problem. In that regard, I would note that a matter affecting length of hospitalisation is dangerousness. A person suffering with schizophrenia, who does not represent a threat of self-harm or harm to others, is more readily allowed and encouraged to live in the community. There were only two references in the evidence before me to events suggesting physical aggression on the part of Joan Bishop. Professor O'Connor acknowledged that Dr Pienkos had noted no symptoms of psychosis. He spoke of the capacity of patients with schizophrenia to give the appearance at times of being relatively normal. That could apply to Joan Bishop's meeting with each of Dr Pienkos and Mr Roccisano. Professor O'Connor considered it significant, as an indication of the effect of the underlying condition, that Joan Bishop had refused the investigation and treatment that had been recommended by Dr Pienkos, only days after the will was made.

104. Professor O'Connor expanded on the question of Joan Bishop's capacity to appear relatively normal, to dress appropriately, to keep a neat house, to wash, clean and cook for herself. He said that her schizophrenia would not prevent her functioning in a crude sense, and conducting basic activities adequately. He said that allowance must nonetheless be made for the other indications of emotional torment, the social withdrawal, the paranoia, the auditory hallucinations. He accepted that she had the capacity to make a variety of decisions, and that the will was not irrational on its face. There were indications that Joan Bishop was capable at times of being articulate and clever.

107. Professor O'Connor agreed that arranging to have mutual wills drawn was not an unnatural process. His reading of the circumstances of the making of the mutual wills, when taken with other evidence as to Joan Bishop and with his long experience with older, mentally impaired patients suggested strongly to him that Bert could be seen to have colluded with Joan Bishop on that occasions as on others. It was in Bert's own interest to support her in various matters, and that included in seeking no, or only the minimum of, outside help.

110. The will made by Joan Bishop is on its face rational, particularly as to its mutuality. Nothing in the evidence provides any clue as to why the three charities, Austcare, the Lort Smith Hospital for Sick Animals and the Salvation Army should have been nominated. The naming of three worthy charities could be seen as a contrived attempt to appear rational. The striking aspect of the will is that it excludes an only daughter, a loving daughter who had remained attentive to her mother, a daughter who ordinarily and naturally had a claim on "the bounty of the testator".

113. It seems to me that this is a more powerful case for revocation than any addressed in the authorities to which I have referred. For a start, there was no doubt about the nature and severity and length of Joan Bishop's psychiatric condition. Further, there was not a total, and not a mutual, breakdown in the relationship. Shirley did more than was reasonable to try to build a loving relationship with her mother. Further, I could see no basis in any of the evidence before me for concluding that Shirley had acted at any time in a way that warranted any justifiable mark of disapproval. Further, there was no other beneficiary to whom Joan Bishop owed any moral or other obligation. Sadly, Joan Bishop's paranoia led to her leaving a totally solitary life, a life without any relationship at all, after Bert had to go to hospital.

116. The act of disinheritance represented a judgment that was so much more than unfair. That judgment was obviously the product of mental disorder. That judgment was so extreme as to be delusional. That mental disorder made it impossible for Joan bishop to judge her daughter rationally. I am well satisfied that Joan Bishop, because of that mental disorder, was unable to consider and give effect to the claims upon her bounty of her only child. She did not have a sound disposing mind. Her will was inofficious. The grant of probate must be revoked.

119. I would have in mind to make orders, according to the following minutes:

1 The grant of probate made on 4 September 2002 of the will of Joan Margaret Bishop who died on 6th December 2001 is revoked. 2 Subject to the requirements of the Registrar of Probates being satisfied, a grant of Letters of Administration of the intestate estate of Joan Margaret Bishop be made to Shirley Anne Flynn of 398 Grassmere Road, Grassmere, Victoria. 3 The costs of Vincent Mario Roccisano in obtaining the grant of probate, in administering the estate pursuant to the grant, and of these proceedings be paid out of the estate.