King v Hudson

Banks v Goodfellow (1870) 5 QB 549 Boughton v Knight (1873) LR 3 P & D 64 Bull v Fulton (1942) 66 CLR 295 Du Maurier v Wechsler [2001] NSWSC 4 Perpetual Trustee v Baker [1999] NSWCA 244 Phillpot v Olney [2004] NSWSC 592 CASES CITED : Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 Public Trustee v Commins; Estate of Wray (NSWSC 19 June 1992 unreported) Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 ReEstate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Timbury v Coffey (1941) 66 CLR 277 Wechsler v Du Maurier [2002] NSWCA 13 Worth v Clasohm (1952) 86 CLR 439

TEXTS CITED : Australian Bar Gazette 1967 Vol 2 p 3

Peter James King (First Plaintiff) PARTIES : Jennifer Jane King (Second Plaintiff) Judith Hudson (Defendant)

COUNSEL : M Willmott SC (Plaintiffs) P O'Loughlin (Defendant)

SOLICITORS : Owen Hodges Lawyers (Plaintiffs) McLaughlin & Riordan (Defendant)

• 39 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

111441/06 PETER JAMES KING & ANOR V JUDITH ELIZABETH HUDSON IN THE ESTATE OF GARRY CHARLES KING JUDGMENT 1 In this matter, two of the siblings of the late Garry Charles King seek declarations and orders in relation to his estate. The deceased committed suicide on 30 October 2005. The deceased had signed and dated two documents, each entitled "Last Will and Testament Garry Charles King", the later on 15 October 2005 and the earlier on 24 June 2005. Neither document was witnessed. There is therefore an issue as to the formal validity of the respective documents. Ms Hudson is the deceased's widow. She has raised an issue as to the deceased's testamentary capacity in both June and October 2005. The executors seek probate of the 15 October 2005 document or, in the alternative, the 24 June 2005 document. 2 The alleged lack of testamentary capacity is particularised in the defence, broadly, as being the exhibition by the deceased of depression and anxiety symptoms; the expression by the deceased of suicidal intentions; the neglect by the deceased of his business affairs; and the harbouring by the deceased of serious delusions and erroneous beliefs. 3 I was informed at the commencement of the hearing that Ms Hudson no longer presses the claim made in her Amended Cross-Claim for an order in relation to an alleged 1993 will. 4 It is conceded by Senior Counsel appearing for the plaintiffs, Mr Willmott, that in the event that neither document is found to constitute the last will of the deceased then the deceased will have died intestate and Ms Hudson would be entitled to a grant of letters of administration (that being the alternative relief sought by Ms Hudson in her Amended Cross-Claim). 5 So that there is no confusion, I refer in this judgment to the late Mr Garry King as the deceased and to his brother (Mr Peter King) as Mr King. Issues 6 Two issues are raised in relation to each of the 15 October 2005 and 24 June 2005 documents:

(i) whether the document constitutes the testamentary intention of the deceased; and

(ii) whether the deceased had testamentary capacity at the time he signed the document. Summary 7 For the reasons set out below, I consider that each of the 15 October and 24 June 2005 documents constituted the testamentary intention of the deceased and that, although the deceased was suffering from severe depression leading up to and at the time of his death, the deceased had testamentary capacity as at both 15 October or 24 June 2005. I am of the view that the 15 October 2005 document should be admitted to probate. Background facts 8 In evidence was a diary written by the deceased over the period from 2001 to his death, together with copies of other handwritten notes of the deceased which were found by Ms Hudson with the deceased's business papers after his death. Ms Hudson gave evidence, as did two of the deceased's siblings (Mr Peter King and Mr David King) and two of the deceased's former colleagues at the University of New South Wales (Professor Peter Little, who delivered the eulogy at his funeral, and Mr Daniel Di Giusto), as to their dealings with the deceased particularly over the last few months of his life. There were also in evidence copies of medical notes made by Dr Geoffrey Hansen (the University Health Medical practitioner who had treated the deceased over the period from 1999 to his death and had diagnosed the deceased variously with depression and severe depression in the last few months before his death) and Dr Mary Jurek (a consultant psychiatrist to whom the deceased had been referred by Dr Hansen). Expert evidence was called by Ms Hudson from Dr Bruce Westmore, a forensic psychiatrist, as to his opinion of the deceased's capacity. 9 From that evidence the following emerges. 10 The deceased and Ms Hudson co-habited from 1979. They were married on 6 May 1984. They lived together for approximately 19 years. Ms Hudson has three children by a previous marriage who lived with her and the deceased during the period of their co-habitation. 11 The deceased and Ms Hudson separated on 5 November 1998. In August 2000 they agreed to a property settlement pursuant to which Ms Hudson received a sum of money in exchange for the deceased taking a transfer of her interest in the matrimonial home at Coogee and accepting responsibility for the mortgage over the property. (The deceased's diary notes reveal a concern on his part that, on his academic salary, he would not be in a position to pay out this mortgage for many years. Dr Hansen and Mr King confirmed that the deceased had expressed worries as to his financial position.) The couple did not divorce. Ms Hudson's evidence was that they had not been "bothered" to do so. Mr King's evidence was that the deceased thought that would amount to a concession of failure. The deceased's diary notes do, however, make reference from time to time to the possibility of divorce or the need to obtain a divorce; and one of the recurring themes in the diary is the deceased's desire to build a new social life and to find someone with whom to settle down and have children. 12 After their separation, the deceased and Ms Hudson continued to maintain an amicable relationship. They shared business interests which continued up to the deceased's death and which were the subject of some of the alleged delusions under which Ms Hudson contends the deceased was suffering. 13 Ms Hudson gave evidence as to the establishment in October 2000 of HydraGen Pty Limited ("HydraGen"), a company which she and the deceased incorporated as a vehicle for commercialising the gene technology that the deceased was developing in his laboratory at the University of New South Wales. (The deceased had referred to this company, in a 2004 application for promotion at UNSW, as a "start-up company seeking venture capital and partners to commercialise the research developments originating in [his] laboratory" (Exhibit 2). There was no evidence of any venture capital or other partner involved in HydraGen at the time of the deceased's death.) HydraGen had applied for, or held, various patents concerning the gene technology being developed by the deceased. HydraGen was jointly owned by the deceased and Ms Hudson (the deceased including a half share of HydraGen in his list of assets in both the 15 October and 24 June documents). 14 In June 2003, an Australian Research Council (ARC) Linkage Grant was awarded to the deceased with Metagen as the "industry partner". Metagen was a business that Ms Hudson had formed in March 2000 from which she operated as a bio-technology consultant. The deceased had no involvement in that business. Ms Hudson said that her obligations (presumably through Metagen as the industry partner) under the ARC Grant were to provide business advice (presumably to the deceased) and to make periodic payments to support the research project. Ms Hudson said that she had planned to make "her" payments in relation to the ARC Grant from income earned through HydraGen. 15 In April 2005, an invoice of about $19,000 from UNSW became due that Ms Hudson says Metagen could not pay. Ms Hudson says she could not see that any funds from HydraGen would be forthcoming in time for her to make more payments on the grant and that in May 2005 she told the deceased she would like to look into the prospect of discontinuing the grant. She said the deceased was worried about the impact this would have on his postgraduate student who was supported by the grant (a not irrational concern on the face of it) and that he had said that most of the work was complete. 16 The question as to the payment or deferral of payment of this invoice (and as to the consequences which might flow from either course) seems to have become prominent in the deceased's mind in the months leading up to his suicide. Ms Hudson said that after the discussion in May 2005 there were further discussions over the next several months as to her options in relation to the grant. She says she received several calls from the deceased in relation thereto. The prospect of deferring the payment (by agreement with the University) was discussed. Ms Hudson says that she agreed with the deceased that it would be a good idea to request a deferral of the payments for one year so that the project could continue, and that the deceased took steps to enquire about the possibility of a deferral and seemed anxious in pressing her to pursue this. Mr King also gave evidence of discussions with his brother about the grant and the payment due to UNSW (though according to him the deceased said it was Ms Hudson who was "panicking"). 17 Ms Hudson gave evidence that in June 2005 the deceased called her to tell her that he was considering suicide and that he had left her something in his will. (From that, I would infer that the conversation took place after 24 June 2005.) (Mr King referred to a conversation in about September in which the deceased said he had discussed suicide with Ms Hudson.) 18 Ms Hudson deposed to various conversations from June 2005 onwards in which the deceased expressed concerns that his neighbour and/or others at the University were doing things to him or were out to get him. Again, Mr King's evidence confirms that the deceased had expressed concerns of this kind. 19 During 2005, the deceased was anxious as to the security of his academic position. At the time of his death, the deceased held tenure as a senior lecturer in the Department of Biotechnology and Biomolecular Sciences at UNSW. In July 2005, he applied (the second time) for a promotion to the position of Associate Professor within the Department. Professor Little (the Head of School in that Department at the relevant time) gave evidence that the deceased had performed well in preparation for and during his interview for promotion. However, this application was unsuccessful. 20 There was evidence from Ms Hudson, supported by evidence from others at the University, that the deceased had concerns as to why he had been unsuccessful (believing it was because he was not "one of the boys") and that he was fearful of losing tenure (suggesting that others were "out to get him"). Those concerns were not necessarily without some rational basis. Dr Hansen gave evidence that retrenchment was a fear at the University at the time and that other academics who had presented to him at the University Health Services had expressed similar concerns. He observed that when postgraduate student numbers were down and research grants were decreasing, many academic staff were concerned about their positions and being retrenched. Professor Little gave evidence that while, in principle, the procedure for terminating the employment of a tenured academic was difficult, in his own case it had proved to be very simple (T 43). Accordingly, there may well have been a rational basis for this fear. 21 In August 2005, a question seems to have arisen as to whether the HydraGen patents (or applications) should be maintained. Ms Hudson says she had discussions with the deceased as to how he was going to meet the cost for extension or continued maintenance of the patents. This is consistent with the concern, expressed in the deceased's diary notes, as to financial matters. Mr Hudson says the deceased made a decision on or about 29 August 2005 to instruct a patent attorney to let the US application lapse. Ms Hudson says she then discovered that HydraGen did not own the patents at all. (This seems to be the basis for her view that the deceased had misunderstood the entity which held the benefit of the patents.) 22 As to the state of the deceased's health, there was evidence that from June 2005 (the month leading up to the deceased's application for promotion at the University) the deceased was suffering from depression. (The deceased had previously been treated by Dr Hansen for depression in April 1999 following the break up of his marriage to Ms Hudson and again in June 2000.) Throughout the deceased's diary notes there are numerous references to the state of his health, with descriptions of a variety of ailments. 23 The first indication in the deceased's diary notes that the deceased had in mind the possibility of suicide was a diary entry on 26 June 2005 in which the deceased noted: - Anxiety Disorder! Clearly! This is now so bloody obvious. … - All of my stuff would be handleable if I wasn't constantly racked by anxiety! - In the end I can just suicide if things get too tough. 24 A week earlier, on 17 June 2005, he had noted that he had "felt a curious awareness of death yesterday" and that this was not something he had not felt before. However, that note did not appear to be more than a musing or reflection by the deceased since it was followed (as many other more social comments were) with " hmmm" and the deceased's further comment was that he was "definitely depressed at work - home - social situation but … should be able to work it out". 25 The first indication from Dr Hansen's medical notes that the deceased was considering suicide is to be found in a note of a consultation on 9 August 2005. Dr Hansen's diagnosis on that date was one of severe depression. 26 According to Dr Hansen over the period June 2005 to October 2005 the deceased's mood, while consistently depressed, fluctuated. Dr Hansen's diagnoses of the deceased varied from depression to severe depression over the period, the determining factor apparently being the articulation or absence, as the case may be, of suicidal thoughts. (The deceased was diagnosed by Dr Hansen with severe depression on each of 9 August, 12 August, 14 October, 18 October and but with depression on 18 August, 12 September, 30 September and 24 October. Dr Hansen said that the difference between depression and severe depression was the suicidal ideation.) 27 Ms Hudson says that in September 2005 she had several long conversations with the deceased in which he discussed suicide. She said the deceased had become very forgetful and anxious about the business; was constantly worried about making the right decisions and kept changing his mind; and was convinced that he was going to lose his job and be homeless. 28 The issue about the ARC Grant, and the payment due to the UNSW, seems to have come to a head in October 2005. 29 Ms Hudson says that in early October 2005 the deceased called to tell her that he had changed his mind (about deferring the UNSW payment) and wanted to lend her the money immediately (so that it could be paid). She said that the deceased was very anxious because he believed he would never get another grant if she discontinued the linkage grant and his career would be over. She said that the deceased was also concerned he would be in trouble with ASIC for trading while insolvent (a concern which she says could only rationally have related to HydraGen since the deceased was not a director of Metagen). Ms Hudson said she told him it was Metagen which had the grant and would be discontinuing it, that she was the sole proprietor of Metagen and that she was making the decision based upon the financial state of her business. 30 Ms Hudson says the deceased gave her a cheque for $19,030 on 12 October 2005 and that he told her that he wanted the funds deposited first into the HydraGen account and then transferred to the Metagen account so that he could pay the University. Ms Hudson says she thought that that was not necessary because the deceased was lending the money to her and not investing it in HydraGen, but she said she did what the deceased asked. Ms Hudson deposited the cheque into the HydraGen account on 13 October 2005. On 21 October 2005, she transferred the money into the Metagen account. Ms Hudson says she had a conversation with the deceased on 28 October in which she asked if he was sure that he wanted her to make the payment. 31 The timing of these events is of relevance in that the deceased appears to have become anxious about the perceived delay in payment of the account. 32 Mr King gave evidence of a discussion he had had with the deceased about the deceased's involvement with Metagen, Ms Hudson and a UNSW grant. According to Mr King, the deceased said he had got himself into a bit of a problem with the business, that there was a debt of $60,000 to the University owed by Metagen, that it was in Ms Hudson's name and that Metagen had been used to apply for the grant. According to Mr King, the deceased said the business had no money and that he had guaranteed Ms Hudson he would cover the debt; he also said that there already had been an invoice for $20,000. This account seems to accord in substance with the reality of the situation - namely that there was a debt to UNSW of about $19,000 and that Metagen/Ms Hudson was liable for that debt. The deceased also expressed concerns that it might be said he had breached the rules as to funding his own research by reason of the involvement of Ms Hudson's company with the grant. 33 Mr King deposed to a conversation with the deceased on 15 October 2005 (when he attended the deceased's home and when the deceased gave him the 15 October document) in which the deceased spoke about his financial situation and said that he had reached a Family Court settlement with Ms Hudson. Mr King said the deceased had told him in October 2005 that it was "only work I'm worried about and getting money for the business thing with [Ms Hudson]". Mr King's evidence was that the deceased suggested that the payment had been "stalled" and that he was concerned that he might lose his job and did not want Ms Hudson to be left with the debt. Mr King spoke of two conversations with the deceased as to a concern expressed by the deceased (on 20 October and 22 October 2005) that Ms Hudson had not paid the money. 34 The deceased committed suicide on 30 October 2005. 35 It is against this background that the respective documents put forward for probate must be considered. Under the 24 June 2005 document, 10% of the deceased's estate was left to Ms Hudson and the balance of his estate was shared equally between the deceased's nieces and nephews. Under the 15 October 2005 document, Ms Hudson received no benefit at all and the estate was shared equally between the deceased's siblings and his nieces and nephews. No provision was made under either document for Ms Hudson's children (the deceased's step-children). Informality of 15 October and 24 June 2005 documents 36 Neither the 15 October document nor the 24 June document complied with the formal requirements for a valid will, since neither was witnessed. 37 As the deceased's death occurred before the commencement of the Succession Act on 1 March 2008, s 18A of the Wills Probate and Administration Act 1898 applies. 38 In Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 at [9], White J said: To be admitted to probate under s 18A, the document in question must purport to express the testamentary intention of the deceased and the deceased must have intended the document to constitute his will. The document must not only set out what the deceased wished or intended should happen to his property after his death, but he must have intended that the document should cause that to come about, that is, to operate as a will ( In the Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 455 per Mahoney JA). As Kirby P said to the same effect in that case (at 452), the deceased must intend the document to govern the disposition of his or her property after death. (See also Costa v Public Trustee of NSW [2008] NSWCA 223 per Hodgson JA at [26], and Basten JA at [108] and [110].) 39 Powell J in Public Trustee v Commins; Estate of Wray (NSWSC 19 June 1992 unreported) enumerated the issues which the court is called upon to consider or the purposes of s 18A as: 1. is there a document? 2. does that document purport to record the testamentary intentions of the relevant deceased? 3. is the evidence which has been tendered such as to satisfy the Court that, at the time of the document being brought into existence, or at some later time, the relevant deceased, by some act, or words, evinced her, or his, then intention that the document should, without more, constitute her, or his, will? 40 The 15 October and 24 June documents clearly satisfy the first issue identified by Powell J. 41 As to the second, each of the documents purports to record the testamentary intentions of the deceased. Each follows the same template. Both documents are headed "Last Will and Testament". They expressly appoint executors named as such (in each case, the plaintiffs), identify the beneficiaries by name, contain a list (said to be non-exhaustive) of the assets of the deceased and go on to make a disposition of the deceased's "estate". Significantly, each contains an express statement to the effect that "This will supercedes [sic] and replaces all earlier versions" and identifies the said earlier version(s) by date. (I note, however, that there is no evidence of the 25 October 1998 version to which each document refers.) 42 As to the third issue, that the deceased must have evinced an intention that this document constitute his will without any further act, the evidence was that both documents were placed in envelopes which were delivered with a degree of solemnity to Mr King. 43 Mr King, in his affidavit sworn 7 September 2007, said that when the deceased handed him the 15 October 2005 document it was in an envelope on which were written the words "Peter and Jenny [a reference to Mr King and to the deceased's sister and named co-executor] 15 October 2005" and the deceased said to him words to the effect "that will be my last will. It is what I want". It was placed by Mr King in his filing cabinet. When Mr King removed the envelope from the filing cabinet after the deceased's death and opened it, he found the 15 October 2005 document. It seems to me that there is no doubt that the deceased intended this document to have testamentary force. 44 The same conclusion may be drawn in relation to the 24 June document. Although on that occasion the deceased did not say when the envelope containing the document was handed to Mr King that it was his last will (or that it was in fact a will), this took place not long after a discussion in May 2005 in which the deceased had said words to the effect that he thought Mr King (who had children of his own) would have an easier task deciding to whom to leave his estate. That, and the similarity of the circumstances to those in which the deceased later handed to his brother the 15 October 2005 document (which he did describe as a will), leads me to the conclusion that as at 24 June 2005 the deceased intended the 24 June 2005 document to govern the disposition of his property on his death. 45 Following the deceased's death, Mr King opened that envelope and saw that it was dated 24 June 2005 and again bore the deceased's signature. Mr King gave evidence that he subsequently mislaid or lost the original 24 June document (obtaining the copy initially relied upon when the proceedings commenced from the deceased's computer). By the time of this hearing, Mr King had found the original 24 June document in a box of documents which he said belonged to the deceased. I have no reason to doubt Mr King's evidence in this regard. 46 Counsel for Ms Hudson, Mr O'Loughlin, concedes that the plaintiffs' case in relation to the testamentary nature of each of the documents is relatively strong but says that it should be borne in mind that the deceased has ignored altogether Ms Hudson's children as objects of his testamentary beneficence notwithstanding the fact that he was effectively their father for the 19 years of his co-habitation with Ms Hudson. 47 The fact that no reference was made in either document to the deceased's stepchildren does not in my view count against a conclusion that the deceased had the requisite testamentary intention. There is no requirement that a testator name those who he has considered but decided against including in his will, assuming the deceased had at that stage turned his mind to his stepchildren. Even if he had failed to consider them at all, this does not suggest that the deceased's intention at the time he delivered the signed document was not to make a statement of his testamentary intention. 48 Both the 15 October and the 24 June documents satisfy the test for a testamentary instrument for the purposes of s 18A. Testamentary capacity 49 The more difficult question in relation to the respective documents is whether the deceased had testamentary capacity at the relevant time. 50 The test for determining testamentary capacity is that set out by Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549 at 565: It is essential to the exercise of such a [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 disposes; 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 which, if the mind had been sound, would not have been made. 51 Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them.

Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other. 52 The caution with which the task of determining testamentary capacity must be approached was noted by Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290, his Honour saying that "[t]he 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". 53 Nevertheless, as White J said in Phillpot v Olney [2004] NSWSC 592 at [12]: If the Court is not affirmatively satisfied that [deceased] had such a capacity [testamentary capacity] it is bound to pronounce against the documents. 54 Similarly, in Bull v Fulton (1942) 66 CLR 295 at 343 it was said by Williams J that: Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it (Mortimer's Probate Law and Practice, 2nd ed. (1927), pp. 53-55; Sutton v. Sadler ; Landers v. Landers , at pp. 235, 236; Bailey v. Bailey ; Timbury v. Coffee ; Derrett v. Hall ). (footnotes omitted) 55 The fact that the deceased committed suicide does not of itself lead inexorably to the conclusion that the deceased lacked testamentary capacity at the time of the execution of either of the instruments although this is recognised as a factor of significance (Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707-708). 56 The matters on which Ms Hudson relies as casting doubt on the deceased's testamentary capacity were that the deceased had, from about June 2005, regularly foreshadowed suicide; the deceased (though a senior lecturer at the University of New South Wales) had developed a fear of public speaking; the deceased had, according to Ms Hudson, misunderstood the corporate identities and obligations relating to the continuation of the ARC Grant for the benefit of the deceased and Metagen; the deceased, again according to Ms Hudson, had misunderstood the necessity for continuing the gene technology patents for which applications had been made in the name of HydraGen and wrongly believed these patents had been assigned to himself and to Ms Hudson. 57 I do not understand it to be disputed that the evidence here is sufficient to raise such a doubt, having regard not simply to the deceased's suicide but to his depression and to the content of the diary entries leading up to his death. In Worth v Clasohm (1952) 86 CLR 439 at 453, the effect of doubt as to the question of testamentary capacity was discussed: A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. (my emphasis) 58 Mr Willmott accepts that the onus in this case lies on the executors to satisfy the court that the deceased had testamentary capacity. He posed five discrete points for consideration:

(i) Was the deceased able to understand the nature of the act of executing and publishing a will and the effect of the instrument?

(ii) Was the deceased able to call to mind the property it was in his power to dispose of in that will?

(iii) Was the deceased able to call to mind the persons who may have claims upon his testamentary bounty?

(iv) Was the deceased able to weigh the relative claims of those persons?

(v) Was the deceased's mind possessed of a delusion that influenced the disposition of his property which, if his mind had been free of that delusion, would not have been made?

59 Those questions provide a useful approach in respect of the matters outlined by Cockburn CJ in Banks v Goodfellow and I consider the evidence in that manner.

(i) (ii) and (iii) - the deceased's understanding as to the nature and effect of a will; property available for disposition and claims on the deceased's testamentary bounty. 60 The first three points go to the deceased's ability to "remember" and understand matters relevant to the exercise of testamentary power. 61 Just as I had no difficulty concluding that each of the documents constituted the testamentary intention of the deceased, I have no difficulty answering the first question posed by Mr Willmott in the affirmative. The language in which each of the 15 October and 24 June 2005 documents was expressed indicates that the deceased understood that what he had clearly labelled as his last will and testament would be a document having dispositive effect on his death. As noted earlier, in each document he included what amounts to a revocation of earlier versions of his will. The discussions to which Mr King deposed (in which the deceased had indicated that it would be easier for his brother (who had children) to carry out the task of making a will) support the conclusion that the deceased understood the effect of a will. So, too, does the deceased's diary note in which he referred to a duty to struggle on for the sake of his family in the context of the legacy he would be able to leave them. 62 As to the deceased's ability to understand the property which was available for distribution, the deceased was clearly able to call to mind his assets, since he listed them with some specificity. There was no suggestion that the deceased had overstated (or understated) his assets in any material way. 63 It was submitted by Mr O'Loughlin that the deceased had not logically approached the disposition of his one-half share of HydraGen (it being difficult to divide a single share held in a company (particularly a private company of this kind) amongst ten beneficiaries). However, I do not consider this a factor which tends against a conclusion that the deceased was aware of what property was at his disposal. It is not necessary that a testator have a precise knowledge of his assets nor that he dispose of them in the most convenient way. The deceased may well have formed the view that this share in the company could be bought out by Ms Hudson or otherwise realised in such a fashion as to enable the beneficiaries to share in a tenth of the proceeds so realised. If not, they would be entitled to joint ownership of that half share. 64 As to the deceased's ability to call to mind those persons with a claim on his testamentary bounty and the relativity of their claims, in each document he correctly named his nieces and nephews; and in the 15 October 2005 document he also named his four siblings. 65 The only obvious error in his recitation of the beneficiaries was the deceased's reference to Ms Hudson as his "ex-wife", since it is not disputed that the couple were never divorced. It might be thought that this was odd, given that various of the deceased's diary entries in or about October 2005 indicated an awareness that he was not in fact divorced. However, it seems to me that this description of Ms Hudson (while not technically correct) may have been a shorthand way of the deceased indicating that, though not divorced, they had severed their marital ties and, as he had explained to Dr Hansen, were "economically separate". (The deceased had correctly referred to Ms Hudson as his "business partner".) 66 The fact that the deceased included an explanation in the 15 October 2005 document for the fact that he had made no provision for Ms Hudson shows in my opinion not only that he was capable of calling her to mind as a potential object of his testamentary bounty but also that he had made an assessment (whether that might be seen as harsh or otherwise in the circumstances) of any claim she might have on his testamentary bounty. 67 Mr O'Loughlin also notes that the deceased had failed to include, or to make any reference at all in these documents, to his three stepchildren. However, Mr King's account of his conversation with the deceased in about October 2005 suggests that (nearly seven years after his separation from Ms Hudson and five years after their property settlement) the deceased may no longer have regarded Ms Hudson's children as being his responsibility. Ms Hudson's own evidence suggests that, equally, the deceased did not consider his stepchildren to have any ongoing responsibility to look after himself, unlike their responsibility to Ms Hudson, their mother. In one of the conversations to which Ms Hudson deposed, she says the deceased said, "You are lucky. You have children to look after you if anything goes wrong" (indicating that he saw Ms Hudson's children as having no responsibility for his own future care or welfare). That does not seem to me to indicate an inability on the part of the deceased to weigh the claims of those who might potentially be the objects of his bounty; simply that he did not (rightly or wrongly as others might think) consider his stepchildren to be his continuing responsibility (or he their responsibility). Therefore, the omission of any mention in the will of the deceased's stepchildren does not of itself cause me to question the deceased's testamentary capacity. 68 I am satisfied that the deceased had the ability to remember or call to mind those whom he regarded as having a claim on his testamentary bounty. My conclusion in this regard is supported by the fact that Dr Hansen gave evidence that, in his conversations with the deceased between June and October 2005, the deceased seemed well aware of his assets and liabilities; had spoken about his mortgage and the extent of it; and had spoken of his relationship with Ms Hudson and her children.

(iv) and (v) - ability to reason/reflect and impact of alleged delusions 69 The remaining issues (as to the deceased's ability to reason and reflect) are linked in a practical sense in this case. The nub of the suggestion that the deceased was incapable of reflecting upon and weighing the relative claims of those to whom his testamentary bounty might extend was, broadly, that he was suffering from depression and harbouring certain delusions and that those delusions (or the depression from which he was suffering) poisoned his mind in a relevant sense or otherwise affected his thought processes or reasoning, so as to deprive him of testamentary capacity. · Intellectual capacity 70 Absent the concerns arising from the thoughts expressed in the deceased's diary notes, and in his conversations with Ms Hudson and others, it seems there would be no suggestion that the deceased did not have more than sufficient intellectual capacity to reason and reflect upon the claims of potential beneficiaries. 71 The deceased was described as a man of high intelligence. He seems to have been well regarded in a highly complex scientific field. Professor Little, who was at the relevant time the head of the department in which the deceased worked, was well placed to provide a considered view of the deceased's intellectual abilities in his academic field. Professor Little was firmly of the view, having observed the deceased's performance leading up to and in his promotion interview on 27 July 2005 and at a seminar on 9 September 2005, that leading up to his death there was no impairment of the deceased's ability to argue concisely and rationally. 72 Insofar as Professor Little based this assessment on the 2005 promotion application which had been prepared by the deceased (saying he did not think that a person of any "intellectual uncertainty" could have prepared the application which the deceased had prepared), there was a suggestion that the substance of the 2005 application would have been based on the earlier 2004 application (and hence would not have given an accurate impression of his mental state in mid 2005). That may well be the case. Even so, Professor Little was in a position to assess the deceased's oral performance both in the promotion interview, at which he said the deceased had answered numerous questions on his research, publications, teaching and service to the profession, and at the seminar, in which the deceased had posed what he regarded as a coherent, pertinent and intellectually challenging question. 73 Professor Little's view was confirmed by Dr Hansen who had treated the deceased over the relevant period and who did not believe the deceased's depression had affected his intellectual ability to reason. 74 I accept Dr Hansen's evidence (and that of Professor Little) that the deceased presented to the world an appearance of intelligence and rationality. Therefore, unless (and depending on the extent to which) the deceased's intellectual thought processes and ability to reason were adversely affected by the depression from which the deceased was undoubtedly suffering in the months leading up to his death, or by the operation on his mind of the alleged delusions, there would seem to be no doubt as to the deceased's testamentary capacity. 75 In this regard, I note at the outset that the fact that a person is suffering from a delusion does not of itself lead to the conclusion that he or she lacks testamentary capacity. The question is whether the particular delusion is one which affects the testator's thought processes in relation to the exercise of his or her testamentary dispositions. 76 In Bull v Fulton at 341-342, Williams J referred to the potential impact of delusions on testamentary capacity in the following way:

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 ). 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 v. Goodfellow ). … It is now recognized that the mere existence of a delusion does not deprive a testatrix of testamentary capacity. (footnotes omitted) 77 If there is a material delusion which has influenced a testator's testamentary dispositions then the will may be declared invalid as in Timbury v Coffey (1941) 66 CLR 277. Where a delusion does not influence testamentary disposition then the will be admitted. · Delusions 78 I have had the benefit of hearing expert evidence from Dr Westmore as to what are regarded in the psychiatric field as delusions and as to their impact on a person's thought processes. I found Dr Westmore to be an impressive witness. His answers (as indeed was his report) were balanced and thoughtful. He quite properly noted that the opinions expressed in his report were limited by the fact that he had not examined any person involved in the proceedings and that the task of providing a retrospective opinion about a person's mental state, in the absence of extensive and objective medical evidence, could be difficult. I place significant weight on his testimony, which I regarded as very helpful in approaching the task before me. 79 Dr Westmore explained in his report that: Delusions are false, unshakeable beliefs which are out of context of the person's social and cultural background. Beliefs of this type need to be tested to see if they are false and unshakeable. If they are not false and unshakeable, they may be "overvalued ideas" rather than delusional beliefs. If they are overvalued ideas, the patient is not psychotic. 80 In cross-examination, Dr Westmore accepted as a general statement that if it could not be shown that there had been no challenge to the patient in relation to a view one could not safely conclude that it was delusional. He went on (T 88.50-53) to say: If a belief system appears to have persisted over an extended period of time and it is obviously contrary to the patient's reality, then it is more likely to be delusional than an overvalued idea

nevertheless readily accepting that the best test would be to confront the patient (something not possible in this case for obvious reasons). 81 Dr Westmore expanded on the terminology he had used in his report: To get the terms correct, the word paranoid literally translated means delusional, so you will see in my report I have used the term persecuted as well because I like to separate paranoid which are delusional ideas, from non-delusional persecutory ideas. You can have ideas of persecution which may or may not be delusional. Some paranoid ideas, that is delusional ideas, are of a persecutory nature. So in this case this man had clear evidence of either paranoid or persecutory ideas. He had paranoid delusions and persecutory delusions and persecutory ideations. 82 The matters about which it is claimed the deceased was delusional (ie had paranoid as opposed to non-paranoid persecutory ideas), may be grouped into a number of categories:

(i) first, that one or more people (unconnected to the beneficiaries under either will) were conspiring against him, or excluding him from participation, or otherwise "out to get him" (such as the concerns expressed to Ms Hudson and to Mr King in relation to his property that his neighbour and a developer were pressuring him to sell his house and the concerns that his university colleagues had not listed his attendance at a conference cocktail function or that he had been passed over for promotion because he was not "one of the boys" or that one (or more) of his colleagues was out to get him);

(ii) secondly, and perhaps linked to various of his other concerns, that his livelihood/welfare were threatened (including his concern that he would lose tenure; that he would be unable to meet his debts and that he would end up homeless); and

(iii) thirdly, that Ms Hudson was or might be working against his interests in relation to the ARC grant or was otherwise "out to get him". In that regard I note that although the ARC grant and the renewal of the HydraGen patents or the ownership of the HydraGen may in some way have been linked in the deceased's mind, the deceased's notes and his discussions with Mr King do not suggest that he was confused as to the interaction between the various entities in connection with the grant or the patents. (One of the deceased's university colleagues, Mr Daniel Di Giusto, said that in August or September 2005 Mr Di Giusto the deceased had said to him, "[Ms Hudson] is doing something in relation to HydraGen to get at me"). 83 Of those, the only matters which would seem capable of having affected the deceased's thought processes with respect to his testamentary dispositions in either June or October 2005 are those falling with (iii) ie those concerning Ms Hudson and one or more of the ARC grant, HydraGen or the gene technology patents. I therefore confine my comments to the third type of delusion claimed to have been suffered by the deceased. 84 In determining whether the deceased was delusional in this regard, Dr Westmore's report emphasises the need to consider whether there was a rational basis for the deceased's concerns (and whether the evidence suggests that the deceased was fixed in these views). 85 While Dr Westmore considered that some of the October 2005 diary entries provided some "evidence of paranoid or persecutory thoughts in relation to [Ms Hudson]", he said: Again, the weight that needs to be placed on the entries, and the significance of those entries will depend on the reality of the situation. Is there, for example, evidence that the defendant was engaging in business practices which might reasonably cause the deceased to be concerned. If so, then his expressed "persecutory" thoughts in relation to the defendant may be reality based. If, on the other hand, there is no evidence to support that proposition or support the deceased's concerns regarding the defendant, then that might be evidence that his thought processes in relation to the defendant were distorted, either by his mood or by some other process such as a paranoid or delusional illness. 86 There seem to be a number of concerns which could potentially have affected the deceased's thought processes in relation to Ms Hudson.

(i) Gene technology patents 87 Whether or not the deceased's position in relation to the non-extension of the gene technology patents was rational is hard to say without knowing more about the background to the decision he was called upon to make or did make in relation to the US patents. It would seem that the deceased was generally anxious not only over the period in question but also at a much earlier stage as to financial matters (leading ultimately, to anxiety as to the prospect of becoming homeless). In that context, a decision not to extend the patents (and thus minimise expenditure) might well have had a rational basis (even though such a decision would presumably detract from the value of the deceased's interest in HydraGen if the gene technology did ultimately prove to be of value). Whatever the position in that regard, however, this does not seem, at least in isolation, relevant to any testamentary decision taken by the deceased. Although Ms Hudson obviously had an interest, through her half-ownership of HydraGen, in the outcome of the patents, there is no suggestion that any decision taken by the deceased in relation thereto was affected by his feelings towards Ms Hudson. Conversely, his testamentary dispositions seem unrelated to the fate or otherwise of the patents.

(ii) Insolvent trading 88 The deceased's concerns, as expressed to Ms Hudson, that he would not be able to be a company director (related to the insolvent trading concern) and that he would never be able to get another research grant seem to me likely to have related to different issues. I consider the question of the grant later in these reasons. The former concern would be rational if the deceased had a basis for thinking that HydraGen was or might become insolvent. There is little information on this point, other than it would seem that Ms Hudson did not anticipate receiving any funds through that company. If it was not trading, this concern might be seen to be without foundation. That said, again this concern does not seem to be linked (in the deceased's diary entries or in his discussions with Ms Hudson or Mr King) to Ms Hudson in any way.

(iii) Loss of tenure 89 As to the deceased's concern that he would be sacked from the University if it were suggested that he was funding his own research, this seems to relate to a perceived or potential conflict of interest arising out of Metagen being the industry partner for the ARC grant. Ms Hudson says the deceased was sure that he would be disgraced if the payments were deferred. Mr King's account of his brother's explanation of the situation suggests that the deceased was concerned that a connection would be made by the University between HydraGen, Metagen and his research. That may well explain the deceased's desire for the payment not to be deferred. Ms Hudson's response was that HydraGen was not involved in the grant and that the grant was to Metagen. However, if the deceased's real issue in this regard was as to a potential conflict of interest allegation, then Ms Hudson pointing out the disconnection between HydraGen and Metagen would not necessarily have allayed his concern. Given the association between Ms Hudson and both HydraGen and Metagen, a concern that the University might perceive a conflict is not so irrational on its face to warrant a conclusion that the deceased was delusional. 90 While Ms Hudson said that she had discussed with the deceased, at the time of making the grant application, the potential conflict of interest (given her involvement with Metagen) and the deceased had told her he would lodge a conflict of interest statement, there is no evidence as to whether or not he had done so. If he had not, there might well have been a rational basis for his concern that he would be disgraced or sacked or unable to obtain another research grant if, as a consequence of the deferral application, attention was focussed on the connection between Metagen and himself and the view was taken that he had improperly funded his own research. Therefore, it does not seem to me that this concern was obviously delusional.

(iv) Ms Hudson/ ARC Grant 91 The most troubling question is whether the deceased was suffering from a delusion that Ms Hudson was "out to get him" or working against him, which affected his thought processes when making the 15 October 2005 will. Indeed Mr O'Loughlin submitted that the relevant delusion affecting the October will was that Ms Hudson had betrayed, or was about to betray, him. (While it was submitted that the deceased lacked capacity to make the June 2005 will, Mr O'Loughlin conceded that no submissions could be made about any particular delusions in relation to that will.) 92 In considering this question, I note that it has been held that mistaken belief is not a delusion (Du Maurier v Wechsler [2001] NSWSC 4 at [40]). In the Court of Appeal (Wechsler v Du Maurier [2002] NSWCA 13) Stein JA noted that, in deciding whether a delusion was operative, regard was to be had to the contents of the will and the circumstances surrounding its execution, citing Boughton v Knight (1873) LR 3 P & D 64. Stein JA further noted that "the evidence did not establish that [the testatrix] was suffering from a disorder of the mind which poisoned her affections and perverted her sense of right or prevented her from natural faculties." Stein JA referred to the observation of Gleeson CJ in Easter v Griffiths 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". The example there given contrasted a testatrix who exhibited "florid symptoms of psychotic disturbance" with one who presented to the world (as did the deceased in this case) an appearance of intelligence and rationality; it being said to be easier in the former case to come to the view that there was a delusion affecting testamentary capacity. 93 Was the deceased's concern about Ms Hudson objectively explicable (even if incorrect)? 94 Other than the very general comment made to Mr Di Giusto (which is contradicted by the positive comments which Dr Hansen says the deceased made about Ms Hudson in about September or October 2005, namely that she "has been supportive of me while I have suffered from depression" and by Ms Hudson's evidence that the deceased was amicable towards her), the evidence relied upon in respect of the deceased's concerns about Ms Hudson emerges largely from the deceased's diary entries and other handwritten notes in October 2005. 95 In particular, annexed to Ms Hudson's affidavit are three pages of notes in the deceased's handwriting which seem to weigh the options available to the deceased as to various matters and, in particular, raise issues as to what Ms Hudson might or might not do in relation to the grant payment. Dr Westmore made particular reference to these notes. 96 On page 1 of those notes two options seem to be listed: "1. Reverse now. Take lumps @ work: fired - fired now or fired later?" and "2. Pay. Any interest rate rise will finish me: mortgagee sale highly undesirable. Cannot divorce? Maybe just …..?" underneath which appear the separately boxed words "House" and "Divorce". 97 A third option is then listed, which is to bring in a boarder. This note therefore seems to relate to the deceased's financial position and includes reference to divorce and what (financial) repercussions that may have. On its face it may well have been written without reference to the ARC grant situation (and perhaps much earlier than that, given that it was under the property settlement in 2000 that the deceased took on the mortgage over the matrimonial home). 98 Page 2 of these notes (and it is not clear whether these pages form part of the one note or a series of notes) does seem to be linked to the situation in relation to the grant payment: "How to avoid self-destructing? 1. more money! 2. hold Metagen payment? How to survive. 1. Need Judy on-side "UNSW vs GCK. $20k"

Underneath this are three boxed entries: "Stop it" with arrows suggesting that the alternatives were "lose job" or "stay one more year" "Pay it" (with the same arrowed alternatives) and "Need to be divorced". 99 The third page of these notes is the most clearly referable to the grant and the prospect of cancellation or continuation of the grant. There are two columns, the first headed "Industry Partner [presumably Metagen] Defaults" and the second headed "Partner Pays". The note appears to canvass the consequences of default versus payment. The consequences on default include the cancellation of the grant and the effect this would have on his postgraduate students and the note suggests that in that event the deceased saw his job prospects as slim. The consequences on payment were said to be the continuation of the grant; "students OK"; and "GCK retains job? For 1 year, maybe" but "GCK $19k down". In the middle of the page are the boxed words: Double Cross No Pay to either

with a downward arrow to Grant cancelled AND GCK [the deceased] down $19k

We could be in the double-cross now . Remember the slowness of the original transfers …

Underneath on the left hand side is the comment "We were already in double-cross mode → force a resolution"; in the middle the word "Control".

On the right hand side in the middle of the page are the circled words: "▪ Says she hasn't written the cheque yet" and "$19k more due in late 2006"

At the bottom appear the words "The Oct. 25 deadline is odd. Why not end of year?" 100 From this, it would seem relatively clear that at least the third page of those notes was written some time after 12 October 2005 (when the deceased gave Ms Hudson money to make the grant payment) but before 25 October (that being the deadline referred to at the bottom) and that what the deceased was contemplating was the possibility that, having paid the sum of about $19,000 to Ms Hudson on 12 October 2005, this amount might not be on-paid by Ms Hudson (or Metagen) to UNSW. 101 The deceased appears to have been assessing his options either way. The reference to the "slowness of the original transfers" might perhaps refer to the delay in transferring the money from the HydraGen account to the Metagen account. If so, then assuming the deceased knew when the transfer was made to the Metagen account, the note must have been after 21 October 2005 - most likely around the time of the conversations with Mr King in which the deceased referred to the money being stalled though before the later conversation on 28 October 2005 in which Ms Hudson asked the deceased if he was "sure" he wanted her to make the payments. (Ironically, it appears that after the deceased's death the grant payment was not made though the moneys were largely used in relation to the HydraGen patents.) However, it is not clear when the note was in fact written. 102 Dr Westmore was of the opinion that some persecutory themes were evident in that note but considered that weight would have to be given to those depending on the reality of the situation. On the face of the document (assuming that it related to the payment of $19,000 to Ms Hudson) he nevertheless considered that there was nothing which showed any delusions relating to Ms Hudson (T 93.6). (He qualified this by saying the fact that the deceased did not expressly directly paranoid thoughts towards her would not exclude him having had them, though it might mean that they were not present (T 33.35).) That said, Dr Westmore was not in a position to attribute a significance to "Double Cross", whereas the evidence suggests to me that the deceased was considering the possibility that Ms Hudson at least had it within her power to "double cross" him 103 If this note does relate to the ARC grant payment (and logically it must), then given the concerns the deceased apparently had as to the potential consequences of non-payment (to his existing grant and his opportunity to obtain future grants or future job prospects, as well as to his postgraduate student) this might logically explain the persecutory references to Ms Hudson in the following diary notes:

· 25 October 2005: "my world hermetically sealed by UNSW and by Judy and family" "Judy could easily be the main antagonist. Almost certainly. But could also be involving others. Who to trust?" "Judy has the will and ability to destroy me, or no?" "Barely functional month now - and a suitable performance is going to be a huge effort". · 27 October 2005: "I can't abandon Judy to debt collection/recovery - oscillating between trust and paranoia, this is too dreadful. Should trust those closest, not doctor or neighbour or work colleagues, this is so bloody obvious, No? So what is true and what is false?" "But what if Judy is betraying me? If she is I'm done anyway". 104 Was there a rational basis for a concern or suspicion that Ms Hudson might "betray" the deceased by not making the on-payment? It was suggested by Mr Willmott that the delay in making the payment to UNSW from 12 October 2005 (coupled with silence from Ms Hudson in that period) might provide not unreasonable grounds for that suspicion. Thus it was submitted by Mr Willmott that the comments in relation to HydraGen were persecutory ideations but not delusional. 105 Dr Westmore accepted in cross-examination that a depressed man feeling he had lost $19,000 and possibly had lost his job would certainly be vulnerable and that if he had handed over $19,000 and had not heard from his ex-wife for some time this might result in the expression in the 25 October note "Judy can easily be the main antagonist", but said that his main concern about that entry was the next sentence - "Almost certainly" - which he saw as a statement of finality, as if the deceased had decided that in a definite way, with perhaps not sufficient evidence to do so. The following sentence "But could also be involving others. Who to trust? There are so many unknowns some are true, speculation or assumption" did not, Dr Westmore thought, help in dispelling any finding of delusion, because it read to him as if the deceased considered not only was his ex-wife involved, but probably others as well. Dr Westmore stated, "So we are moving from simply I have given this to ex-wife and she has just disappeared. But it is more than that: almost certainly she has betrayed me and there are probably others involved. So I think it moves it up I think rather than down". 106 Moreover, in further examination in chief Ms Hudson gave evidence (adduced, as I understand it, to show that it was not the case that there was silence from her from 12 October onwards) as to her telephone accounts, which showed telephone calls variously to the deceased's home telephone number, mobile number and laboratory number, of varying lengths, on each of 12, 17, 18 and 27 October 2005 (Exhibit 3). 107 It seems to me that irrespective of whether (as Ms Hudson proffered) there was a reasonable explanation for the delay in the cheque clearing before being on-paid to UNSW, and even accepting that the deceased was in communication with Ms Hudson over the period from 12 October (when he gave her the cheque) to 28 October (when she asked if he was sure he wanted her to pay it), the deceased's notations as to the possibility (and consequences) of her not paying the Metagen invoice are not so irrational as to be devoid of any rational basis. 108 Nor do those concerns appear to be fixed (in the sense of an unshakeable conviction). The deceased's conversations with Mr King in late October (or at least up until 23 October) suggest that the deceased was still canvassing in his own mind the possibilities in this regard and able to take into account another viewpoint on this issue (something which accords with the way the deceased analysed other matters in his diary - such as his friendship with other women he met in his dancing classes). 109 By the time of the 25 October note it seems clear that the deceased had become more fixed in this suspicions of Ms Hudson and at that stage he might be said to be harbouring a delusion about her. However, it is by no means clear that this was the case back on 15 October when he made a will which, on its terms, was quite rational. 110 It is submitted by Mr Willmott that there is a reasoned statement as to why the deceased had decided to exclude Ms Hudson which was founded in fact and is rational on any objective analysis of the distribution. In particular, it was said that because the deceased had given Ms Hudson a cheque for about $19,000 two days before the will, this should destroy any argument that the last will was affected or poisoned by any delusions towards the defendant. I think there is some force in that submission. If the deceased was fixed in his view that Ms Hudson might be intending to betray him at that stage it seems unlikely that he would have handed her the means by which he thought she could do so. It seems more likely that, having taken care (in his own mind) of the pressing debt owed by Ms Hudson, the deceased approached the task of assessing the testamentary claims of his family (including Ms Hudson) on the basis that there was a clean slate in respect of the Metagen debt. (In that regard I bear in mind that there can be no suggestion that a $19,000 payment would equate to a tenth share in the estate such that it could be said this was in lieu of a bequest. However, I do not understand this to be the thrust of Mr Willmott's submission on this point.) 111 Dr Westmore's review of the materials with which he had been provided indicated to him that there had been some morbid thoughts of a self-harming type but, broadly, Dr Westmore was of the view that there was nothing obviously bizarre or inappropriate in the distribution of assets recorded in either of the testamentary documents nor was there anything in those documents which would suggest to him that the deceased did not have testamentary capacity; he could not identify anything (other than morbid thoughts of a self-harming type) in the observations contained in Mr King's affidavit of 22 August 2008 to suggest that the deceased did not have testamentary capacity; he said there was nothing in the medical records of Dr Hansen which suggested or indicated that the deceased was psychotic (although he noted that patients who were depressed may have disturbances in their perceptions of reality particularly if their thought content is predominantly one of hopelessness and despair and that this might affect their decision making process and capacities); he could not identify any entries in Dr Jurek's notes to suggest that the deceased was psychotic (although he was notably anxious and depressed and had suicidal thoughts); and nothing in the clinical notes of either Dr Hansen or Dr Jurek was read by Dr Westmore as indicating a lack of testamentary capacity. 112 Accordingly, I do not consider that the evidence establishes that as at 15 October (or, earlier, as at June 2005) the deceased was suffering from a delusion affecting his testamentary capacity. 113 This brings me back to the question of the impact, on the deceased's thought processes, of the depression from which he was suffering. · Depression 114 Dr Hansen's opinion was that the extent of the deceased's depression would have made the deceased extremely negative such that he could not see any way out of his depression and his self-worth was at a very low point. Dr Hansen did not consider that this would have affected his ability to reason. Dr Westmore, however, drew a clear distinction between intellectual capacity and abnormal thinking. 115 Dr Westmore said (at T 96.26): You see, the issue is his depression and its impact on his thought content. There is the issue raised by Dr. Hansen about his intellectual ability. I know [Ms Hudson] raised concerns about his ability to remember things, and so on. My reading of these documents showed no real evidence of intellectual impairment. It is really about his thought content and whether that was affected by his depression and his subsequent decisions, to make rational judgment as to who he intended to leave what to, if at all. So it is not really his capacity to understand what he owns and how much it was valued at or his ability to make these decisions on financial issues, but really it is his thought content and how that might have been affected by his mood.

116 While Dr Westmore had some concerns about particular comments in the affidavits and some persecutory themes were evident in various of the notes, broadly speaking the conclusion of Dr Westmore appeared to be dependent on the making of the assumptions he was asked to make. Dr Westmore understood those assumptions to be that "the deceased developed depressed mood, he developed paranoid and probably delusion thoughts, and morbid concerns about his health. He developed irrational thinking and he became forgetful, something which can occur in depressed patients". 117 Dr Westmore said that if he assumed that the details contained in the document entitled "Assumptions" are correct (and I interpose to note that at least one was not supported by the evidence as admitted in the case - assumption 46) and if the deceased was so depressed that he had developed paranoid and/or delusional thoughts in relation to Ms Hudson, then his capacity to consider her and his obligations to her in a reasonable and rational way, are likely to have been affected by his disturbed mental state. 118 I accept Dr Westmore's evidence that the presence of depression can affect a person's judgment and that in turn may affect a person's testamentary capacity. However, Dr Westmore also noted that if the distribution of assets was apparently done on a rational and logical basis, then the impact of any delusional belief that the deceased might have had towards that particular person, is more difficult to ascertain. 119 In this regard, I note that Dr Westmore's opinion, in summary, was that: I am not in the position to indicate whether [the deceased's] distribution of assets in either of the disputed documents was reasonable or rational although there is nothing in the documents themselves that would [indicate] that he was acting on delusional belief or affected in an adverse way by his depression. If, however, the distribution of assets if found to be bizarre, inappropriate or generally inconsistent with his overall circumstance and situation, the obviously his mental state disturbances of depression and possibly paranoid ideation are likely to have played a role in that. [I interpose to note that nothing in the distribution of his assets seemed to me to be bizarre, inappropriate or inconsistent with the overall situation]. There does appear to be some objective evidence to suggest that the deceased was developing at best persecutory ideation and possibly psychotic ideation towards the end of his life. It is not possible from the documents I have reviewed to indicate precisely when those ideas commenced but they were certainly being expressed in the months and weeks leading up to his death.

120 Dr Westmore was very concerned about the nature of the diary entries prior to the deceased's death, which he said were "consistent with a catastrophic mood characterised by feelings of helplessness, hopelessness and despair". The handwritten diary entries which Dr Westmore saw as disturbing were all entries post-dating the 15 October 2005 document being entries on 16 October 2005, 19 October 2005, 21 October 2005, an undated page entry which included reference to 2. Divorce papers; 3. Black Dog; 4. Geoff Hansen" and "What is correct and what is psychiatric illness - how do I tell?" and particularly the entries on 25 and 27 October 2005 (which I have extracted above) and the last entry of 28 October 2005 (which he said was very disturbing), where there was reference to a centre for newly homeless men a note that crisis accommodation was in extremely short supply and a suggestion that his sister-in-law had planted an old will in his files "be rational man - gaol and bashing and rapes and death at some point" and in which he notes his plans for suicide in some detail. 121 However, Dr Westmore agreed that there was nothing in the diary entries of 16, 17, 19 or 20 October which pointed to the fact that the deceased had any delusion in relation to Ms Hudson. (He thought there was some suggestion at the bottom of the entry on 16 October that the deceased might have started to have persecutory thoughts or might be persecuted at that point (insofar as the deceased wrote to say nothing to anyone outside the family). He thought there was a suggestion of some paranoia but nothing specifically that could relate to the Ms Hudson and he did not know what it meant.) It was the "really disturbed last few entries" (from 23 October onwards) which suggested to Dr Westmore that he may have been psychotic and in that context he went on the say (at T 96) "it raises questions about his thought processes prior to that time because psychosis does not come on overnight it is a gradual process. What we have to suggest is that he was not thinking correctly was this ongoing suicidal ideation". 122 Dr Westmore said that he could not say from the documents he had been shown that it was more probable than not that the October will was affected. He thought that by 25 October 2005 the deceased was clearly persecuted: He is clearly persecuted. I have chosen that word carefully. He is clearly persecuted at this point. Whether he has paranoid, that is psychotic, is less clear. I can't test it from this. It suggests to me that it is one interpretation. But another is, that in a persecuted mind or paranoid mind, people believe that there are conspiracies coming from everywhere. It might be a suggestion that there is no end to it, that everybody is a suspect. I think that points to the differentiation that I was trying to make before, that a person has the ability to list and organise aspects of their lives, as he has done below the line, but at the same time have an obvious disturbed thought process. You can have the two together.

123 I raised with Dr Westmore whether it would be difficult to tell when the disturbance in thought patterns or any psychosis had started to affect the thoughts of the deceased. His response was: It would be your Honour. We call it the prodromal phase. It means the illness is developing but is not evidence and is usually reflected in increasingly disorganised behaviour, sometimes bizarre behaviour, increase in morbid thoughts and then at some stage the psychotic symptoms are identified and the prodromal phase. It is recognised in the onset of psychosis.

124 I note that in Re Hodges; Shorter v Hodges, Powell J (although rejecting, on the medical evidence before him the proposition for which I understand Dr Westmore contends and which I would accept, that cognitive changes occurring in depression ought to be regarded as within the concept of a disorder of the mind and, as such, capable of depriving a person of testamentary capacity) said that he would not have found that such "cognitive changes" had in fact deprived the deceased of testamentary capacity on the basis that "it remains a matter of complete speculation whether the Deceased's will represented 'a genuine prioritising' of his estate or was but a part of a bizarre 'scenario' such as was suggested by the Defendant." The fact that the terms of the will might there have been regarded as unjust to the defendant was immaterial, given his Honour's view that the deceased had testamentary capacity and deliberately, albeit while under emotional stress, chose to make his will in the way which he did. Here, the 15 October will in my view is more likely to represent a deliberate decision to prioritise the claims on the deceased's estate albeit at a time when the deceased was depressed. 125 At the time of the making of the 15 October 2005 will it would seem almost unarguable, as I understand it from Dr Westmore's evidence, that the process of development of psychosis had already begun. There was increasing suicidal ideation and from somewhere between 12 and 25 October the deceased's diary entries show that he was reflecting upon the possibility that Ms Hudson was seeking to double cross or betray him, with or without the involvement of others. However, as at 15 October he was weighing up all possibilities. It was not until around 23/25 October that he appears to have become more fixed in his view that Ms Hudson was acting against his interests (and on one view the delay in making the ARC grant payment may have provided a rational basis for that view). Conclusion 126 I do not consider that the evidence establishes that as at 15 October 2005 the deceased held a delusional belief as to Ms Hudson from which he could not be moved by logical argument and evidence to the contrary (to use the words of Giles JA and Brownie AJA in Perpetual Trustee v Baker [1999] NSWCA 244 at [9]). 127 The will of 15 October is rational on its face and there is nothing in that will which evidences a delusion. The deceased's concerns about Ms Hudson do not seem to have been unshakeable (insofar as the deceased himself seemed in his diary notes to be testing the validity of those beliefs from time to time and the options then available to him) nor were they without any possible rational basis. (He may have been mistaken about his suspicion that Ms Hudson might have been intending to withhold payment of the $19,000 UNSW invoice but that suspicion does not seem to me to be delusional.) 128 It is significant, I think, that, but for the final entries in the deceased's diary which were described by Dr Westmore as disturbing, Dr Westmore would not have been concerned as to the deceased's testamentary capacity. As I understand Dr Westmore's evidence, what he is saying is that the material suggests that by 27/28 October the deceased was psychotic and that this psychosis was unlikely to have come on overnight and there would have been a gradual process towards development of that psychosis. Nevertheless, even though Dr Westmore considered that the psychosis would have been developing for some time before it was manifest, it is by no means clear that the psychosis, as it was developing, was one which had or was likely to have affected the deceased's thought processes in exercising his powers of testamentary disposition viz-a-viz Ms Hudson on 15 October 2005. In September/October 2005 the deceased was expressing positive sentiments about Ms Hudson. While he was clearly suspicious later in October that Ms Hudson might be out to "get him", around the time that he made the will he seems to have been sufficiently rational to consider that there was also the possibility that she was not so acting. 129 On balance, while there is room for doubt as to the deceased's testamentary capacity as at 15 October 2005, I am not of the view that it is so substantial a doubt as to preclude belief that the deceased was of sound mind, memory and understanding at the time of execution of the will. 130 Having regard to the caution with which I must approach this task, and the fact that the deceased was weighing in his mind for some time the possibility not just that Ms Hudson was betraying him but also that she might well not be doing so, it seems to me that any residual doubt as to the deceased's capacity to evaluate rationally the claims on his testamentary bounty as at 15 October (arising from the fact that by later that month the deceased thought it almost certain that Ms Hudson was acting against him) is not substantial enough (in light of his undoubted intellectual capacity, the logical explanation found in the terms of the 15 October document and the more balanced thought processes exhibited by the deceased at that earlier stage) to preclude the belief that the deceased possessed testamentary capacity at the time he made the 15 October 2005 will. I am satisfied that it is more probable than not that the deceased had testamentary capacity as at 15 October 2005. 131 Had I been of the contrary view, then I would have had no hesitation in finding that there was testamentary capacity as at June 2005 and would have admitted that will to probate. Dr Westmore accepted that there was nothing in the diary entries from January 2001 to 30 June 2005, which would show that the deceased did not have capacity to make the June will. Dr Westmore thought that the 26 June entry was consistent with the deceased being depressed. He said: "When people look at reasons for suicide, one of the - there are many different reasons, there are about five or six - one of them is to escape and that is, he was playing the last card or is realising he has got a last card". The tenor of the 17 June 2005 entry suggests the deceased was optimistic that he would work through his problems. There is nothing to suggest at that stage that the depression had affected the deceased's ability to reason or reflect on matters such as his will. Orders 132 Accordingly, I make the following orders:

1. A declaration that, pursuant to s 18A of the Wills Probate & Administration Act 1898 the document dated 15 October 2005 constitutes the will of the deceased.

2. An order, subject to due compliance with the rules of court, probate in solemn form of the said will dated 15 October 2005 signed by the deceased on or about 15 October 2005 be granted to the plaintiffs.

3. An order that the matter be remitted to the Registrar in Probate to complete the grant. 133 Counsel have asked for an opportunity to address me on the question of costs and accordingly I will hear submissions in relation to costs. **********

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