(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.