Consideration
15 There was ample evidence to support Windeyer J's finding that while the deceased held a false belief that Katie and her husband had cheated or deceived her, it was not a delusion.
16 First, as his Honour said, the false belief held by the deceased was explicable given the circumstances. There were many reasons for this and they included the fact that for around 5 years the extremely generous gifts to Katie (and to Mary) were accepted notwithstanding that Katie, and her husband in particular, knew that the gifts were escalating the deceased's indebtedness to Hexiva. Whether, or to what extent, Dr Wechsler tried to make the deceased aware of the situation, it is clear that she was not made aware of the full extent of the indebtedness until April 1994. It is plain that it rankled with the deceased that Katie (and Dr Wechsler) wanted to retain the gifts and give no credit to the indebtedness she had incurred to Hexiva. This lead to the deceased's analogy that 'Katie has two pockets'.
17 In my opinion, his Honour's conclusion that the deceased had testamentary capacity and was not suffering from any delusion is sustainable and completely understandable when regard is had to the evidence as a whole.
18 The two 1995 wills and the 1997 codicil do not, by their terms, create any suspicion. Indeed, to the contrary. The dispositions in the 1995 wills are rational and indicative that the deceased considered all of those persons who might have a claim on her testamentary bounty. Clause 6 (and cl 7 in the October 1995 will) provide a perfectly adequate and acceptable explanation (indeed one which is acknowledged to be truthful) for the extra provision made for Mary. Plainly, Mary had a greater claim on the deceased's bounty which she recognised.
19 His Honour was entitled to find that the deceased made the wills in the terms which she did for the reasons set out in the wills.
20 If, contrary to the trial judge's conclusion, the false beliefs held by the deceased about the appellant, and Dr Wechsler, had affected her testamentary capacity, one would have expected the appellant to have been wholly excluded as a beneficiary or left only a pittance.
21 What the evidence bears out is that Mrs Fiala had the capacity to reflect, to draw back and reason, and consider the consequences of her actions. The beliefs she held did not overwhelm her judgment when she made each of the 1995 wills and the codicil in 1997. She was still able to make reasonable and appropriate dispositions and to remain rational in her consideration and reflection on those who had a claim on her bounty.
22 However angry or upset she got with the appellant, and her husband, she was able to calm down and reflect. There are two very good examples of this. At one time she gave instructions to her solicitor to divide her residual estate in the proportions of 70/30 between Mary and Katie. However, the next day she withdrew those instructions after talking to Mary and reflecting. At another time, she gave instructions to cut Katie out completely and leave her 40% share to her children. However, the deceased was able to accept the advice of her solicitor and withdraw those instructions.
23 The evidence of the two solicitors, Dr Winters and Mr Hamilton, is also compelling. Dr Winters, in particular, was aware of the family problems. There is no reason not to accept their evidence that they had no ground to suspect that Mrs Fiala lacked testamentary capacity or to doubt the wisdom or fairness of her dispositions. Neither of them believed that the deceased's reasons for making an unequal disposition between Mary and Katie was other than disclosed. Indeed, the deceased was consistent in what she said to her solicitors about the reason for providing a greater benefit to Mary up to and including Mr Hamilton's visit to her in June 1997.
24 Moreover, it was the deceased who suggested the reason for the 60/40 split of residue. It did not come from the solicitors. Mrs Fiala also appreciated that at her age, and because of remarks that Katie had made to her, it was a good idea that she obtain a letter from Dr Atlas, her general practitioner. Again, this was an idea which emanated from the deceased and not from her solicitor or medical advisor.
25 Indeed, the medical evidence, while not determinative, deserves to be given due weight. In fact, it is all one way and confirms that the deceased had no condition which affected her testamentary capacity.
26 The evidence of Dr Jenneke, Mrs Fiala's psychiatrist between 1994 and 1996, is important. In his view, she suffered from depression and a panic condition, but no cognitive impairment. She did not suffer from any dementia or psychotic disorder. In short, she did not suffer any condition which would compromise her capacity to make a will. Further, in Dr Jenneke's opinion, she did not suffer from any delusion in the clinical sense.
27 There is no doubt, as Dr Jenneke said, that Mrs Fiala felt anger for Dr Wechsler and Katie. But his Honour was entitled to find that the false beliefs which he found that she held, were in many ways explicable. In the circumstances which unfolded in 1994, it is not surprising that the deceased was antagonistic towards Dr Wechsler and Katie. Her complaints were not, when one considers the circumstances, to be seen as irrational. What occurred with Mrs Fiala's incurring the large debt to Hexiva should not have been allowed to occur, or not to the extent that it did. The full picture should have been made very plain to the deceased well before April/May 1994. If it had been, the problem would have been very much less acute and Mrs Fiala's gifts to her daughters much less generous.
28 Two points in particular are made by the appellant about the evidence. One is the content of Mrs Fiala's 'notes', especially notes made proximate to the time of the making of the 1995 wills. These notes, in the deceased's hand, were not discovered until after she died. They were never forwarded by the deceased to Katie. His Honour said that they were, to a large extent, diatribes against Dr Wechsler. This is true although they also contain a considerable amount of venom and criticism directed towards Katie. In oral evidence Dr Jenneke thought that they were the product of a great deal of anger towards her daughter and son-in-law, but not delusion. It is significant that the notes were never sent by the deceased to Katie or Dr Wechsler. This fact is indicative that the deceased may have been attempting to get her bad feelings 'off her chest', somewhat like a personal diary. In any event, the whole of the evidence is indicative that at the time of the making of each of the wills in January and November 1995, and the 1997 codicil, the deceased was able to draw back from the anger she felt for Katie and her son-in-law.
29 The other point emphasised by the appellant is the fact that there was no discussion between Mr Hamilton and Mrs Fiala about the inclusion of cl 7 in the October 1995 will. There was, of course, discussion between the deceased and Dr Winters in relation to the January 1995 will (cl 6).
30 There was evidence that the deceased explained to Mr Hamilton the reasons why she wished to reward Mary with a greater share of her estate. For example, in June 1997. As I said earlier, if the deceased's feelings for Katie had been so severely poisoned by her falsely held beliefs by the end of 1994, it would have been unlikely that she would have made any provision for Katie. On the one occasion that she contemplated such a course she soon calmed down, took advice and reflected. As a result, she reverted to the 60/40 split of residue between the daughters, which she clearly saw as an appropriate way to recognise the contribution of Mary to her care.
31 The appellant further argues that Windeyer J misapplied the test for a delusion in Bull v Fulton (1942) 66 CLR 295 at 339, namely, whether the delusion was a fixed and incorrigible false belief which the testator could not be reasoned out of. The appellant complains that his Honour, having found that the deceased had a false belief, failed to go further and inquire as to whether it was fixed and incorrigible and one which she could not be reasoned out of.
32 Windeyer J did refer to Bull v Fulton and in discussing it said:
When discussing delusions in terms of testamentary capacity, it is generally accepted that delusion is a belief not capable of rational explanation or amenable to reason; or a fixed and incorrigible false belief which the victim could not be reasoned out of.
33 His Honour added that there was a clear difference between a mistaken view and a belief arising from a delusion. Windeyer J found that although Mrs Fiala held a false belief that Katie and Dr Wechsler cheated or deceived her or dealt with her improperly, there was no delusion. I accept that it is implicit in his Honour's reasoning that the test of delusion enunciated in Bull v Fulton was not satisfied. Mrs Fiala, although clearly upset and angry, and for understandable reasons, was able to accept that she was indebted in Hexiva. She was able to accept that she had to come to an arrangement to pay the debt. Indeed, she started to do this, paying in excess of $300,000 to Hexiva. The false belief that his Honour found that she held had elements of rationality within it. For example, that the true situation was not properly drawn to her attention until after she had gifted $1 million out of the partnerships to each of her daughters. Why would she not be entitled to be angry at the acceptance of such generous gifts by Katie when she knew, or must have known through her husband, that with every gift she took from her mother, the greater the indebtedness of her mother to their family company, Hexiva?
34 Nonetheless, Mrs Fiala was amenable to advice and compromise, which was agreed at a meeting which all of the relevant actors attended in December 1994.
35 The conduct of the deceased following this meeting contrasts with that of Dr Wechsler. In at least three respects he attempted to renege from the agreement until the stand taken by Dr Winters prevailed and he signed and accepted the agreed minutes.
36 There was, in my view, ample evidence to enable his Honour to conclude that the false belief which Mrs Fiala held was explicable and that it was not a delusion but in fact a mistaken view.
37 It is plain that it could not be said that the deceased was unable to properly reflect upon the claims of those entitled to be considered to share in her bounty. Nor can it be said that the false belief, assuming for a moment that it was a delusion, had any direct bearing on the disposition by the testator. The evidence did not establish that Mrs Fiala was suffering from a disorder of the mind which poisoned her affections and perverted her sense of right or prevented her from exercising her natural faculties.
38 In deciding whether a delusion, assuming its existence, was operative, regard is to be had to the contents of the will and the circumstances surrounding its execution, Boughton v Knight. Here neither the contents of the will(s), nor the surrounding circumstances of execution, suggest any direct operation or impediment upon testamentary capacity.
39 In Easter v Griffith (Unreported, Court of Appeal, 7 September 1995) Gleeson CJ noted that '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' (p 10).