Analysis
340 The will and codicils were rational on their face, and were apparently duly executed and attested. The plaintiffs thereby established a prima facie case of competency.
341 The defendants plainly adduced evidence raising doubt as to the competency. The relevant evidence emerged partly in cross-examination of the plaintiffs and of witnesses both lay and medical whom they called; partly from the lay and medical evidence which they, the defendants, adduced; and partly from consideration of testamentary documents in the light of the other evidence.
342 On the whole of the evidence the plaintiffs failed to establish that the testatrix possessed testamentary capacity when the will and codicils were both prepared and executed. In my opinion they clearly failed to do so.
343 The plaintiffs made out, I consider, the first pre-requisite of competency. The evidence was not clear-cut, but I consider that they made out the second pre-requisite. They did not make out at least the second aspect of the third pre-requisite. They did not make out the fourth pre-requisite.
344 In explaining my conclusions I will focus principally on the areas in which the plaintiffs failed to make out their case. I will not repeat, in details, the many findings I have made in outlining and discussing the evidence. That is not to say, and I do not say, that some of them have not assisted the conclusions I have reached.
345 Nor will I repeat all of the conclusions I have already expressed about the truthfulness, reliability and usefulness of the evidence of individual witnesses.
346 My conclusion depends upon evidence of Mrs Tuppen's mental condition and behaviour over a period of years, commencing in 1991. Whilst the date of execution of the documents was in each instance a critical point in time, it would make no sense to conclude that, if Mrs Tuppen lacked testamentary capacity over a number of years, she suddenly regained that capacity on three discrete occasions years apart.
347 A necessary part of my conclusions is a finding that, at least from mid 1991, the testatrix suffered from dementia, probably of the Alzheimer's type, at a clinical level. In the end, neither side contended to the contrary. The real argument was as to the severity of the condition; and whether it impaired insight, judgment and decision-making skills - it being common ground on the evidence that a person suffering from dementia is not necessarily deprived of those abilities.
348 When assessed by Drs Wood and Tofler in late 1991 Mrs Tuppen exhibited, though labels do not reveal the detail of the matter, a "mild to moderate dementia", or "significant" dementia. Dr Wood noted particular deficits in new verbal learning, and in judgment and decision-making skills. Dr Tofler noted memory loss both short and long term, deficiencies in attention and concentration, and impairment of abstract thinking. Those were not the entirety of the problems observed by the two specialists.
349 Dr Pick, the long time general practitioner, was of opinion that, by late 1991, his patient was exhibiting senile dementia such that her memory and perception of things affecting her life and situation had substantially failed. She had little or no realisation of her forgetfulness, confusion and defective memory, and lacked insight into their meaning. It was his opinion that she had impaired judgment.
350 Coming forward to the period August to September 1992 Dr Wood's evidence shows that the patient had suffered a delirium complicating her dementia. The delirium was observed in mid August. It resolved. There were attendances on Dr Wood on 7, 9 and 30 September. On the first two of those occasions the doctor saw evidence of paranoid sets. But by 30 September, as reported on 7 October, "the rather paranoid flavour to many of her conversation themes (had) ceased".
351 The doctor noted with surprise, as "a bit unusual", the circumstance reported on 30 September that Mrs Tuppen executed a new will. The doctor was not passing verdict on Mrs Tuppen's testamentary capacity at the time. But I think it likely that he then turned his mind to a possible problem.
352 Dr Wood re-examined his patient on 8 February 1993. His diagnosis was unchanged. The dementia was certainly progressing, but not very rapidly. Verbal and non-verbal learning ability, as in November 1991, was virtually non-existent. Ability to think abstractly had declined. Mrs Tuppen's ability to make judgments and understand what was going on around her was very impaired. Dr Wood commented that she was extremely susceptible to suggestions and was really unable to formulate her own opinions.
353 I have said earlier, and I repeat, that I found the evidence of Dr Wood, and of doctors Tofler and Pick, to be objective and reliable. It was also well-informed, and helpful to my task, notwithstanding that those doctors did not undertake a discrete function of assessing Mrs Tuppen's testamentary capacity.
354 The course of dementia, the evidence shows, is one of deterioration, though it is often quite slow in the case of elderly sufferers. In Mrs Tuppen's case the evidence of Dr Wood, which I accept, shows that between November 1991 and February 1993 there was some progression. It is not readily conceivable that her mental state was any better at the times the codicils were executed than it was when the will now propounded was executed. I say that because I conclude, on the evidence, that Mrs Tuppen's dementia was not complicated by any delirium at the time of execution of the will; that is, her deficits were not then increased by a concurrent illness.
355 My acceptance of the evidence of Doctors Wood, Tofler and Pick provides a starting point for consideration whether the dementia deprived Mrs Tuppen of testamentary capacity. Whilst Drs Wood and Tofler, not having discretely examined Mrs Tuppen in order to assess testamentary capacity, were understandably reluctant to express firm opinions upon that matter, their evidence, I consider, tells pretty strongly against the presence, at relevant times, of the third and fourth pre-requisites of competency. So also does the evidence of Dr Pick - who, as I said earlier, had the advantage of long connection with his patient.
356 Pausing for a moment, it is I think of some significance when considering the overall impact of the medical evidence that Drs Pick and Wood, called by the defendants, are doctors who had close connection with Mrs Tuppen; whereas, Dr Bennie apart, the plaintiffs called doctors who either interviewed Mrs Tuppen only at times when she executed the critical documents, or did not interview her at all - that is, in the case of Professor Chiu. Moreover, as I have pointed out, there were contradictory features to the evidence of Dr Bennie, and for other reasons his evidence did not positively assist the plaintiffs; the evidence of Drs McIntosh and Murphy was for different reasons compromised; and the evidence of Professor Chiu depended in significant part upon the reliability of the reports of Drs McIntosh and Murphy.
357 Consideration of the lay evidence takes place against the background of my conclusion that the testatrix suffered at relevant times from a dementia with characteristics identified by Drs Wood, Tofler and Pick. The lay evidence, obviously, did not speak with one voice.
358 Senior counsel for the plaintiffs much relied upon the lay evidence which he called - of the plaintiffs, the carers, Mrs Dorum, Mr Lukaitis, Mr Zilinskas and Ms Gardiner. He submitted that it was his clients who had called witnesses involved in day to day, or at least regular, contact with Mrs Tuppen in the years between 1991 and 1996. He contrasted that with the lay evidence of and called by the defendants - which for the most part did not travel beyond the end of 1991. He pointed out, also, that the evidence of some of the witnesses called by the plaintiffs was subjected to no cross-examination, or else very little. This was so in the cases of Mrs Murphy, Mrs Greenhalgh, Mrs Dorum and Mr Scott. His further submission was that the evidence of the plaintiffs, and of the lay witnesses they called, supported a conclusion that Mrs Tuppen had testamentary capacity at relevant times.
359 I deal first with the evidence of Mrs Murphy, Mrs Greenhalgh, Mrs Dorum and Mr Scott.
360 The evidence of the particular witnesses contained these threads: Mrs Tuppen was a conversationalist. Mainly she spoke of times past. There, her memory appeared sound. She had impairment of short-term memory. But it was not blanket impairment. She was opposed to Robert Tuppen. He wanted her money. She feared him. He was taking her back to the court. His aim was to get her out of her home and into a nursing home. She liked Alison Inchley. But Mrs Inchley could not be trusted any longer. She would relay information to her brother. Mrs Tuppen spoke well of Digby Norris. She appeared to understand financial information conveyed to her. On one occasion she made comments indicating her approval of the contents of the 1992 will and a later codicil.
361 The threads of the evidence which I have first identified should not be considered in a vacuum; or uncritically. That is not to say - and I make it clear I am not saying - that there is any suggestion that the witnesses were not doing their best to give me an accurate account of their observations. But it must be remembered that, unequivocally, Mrs Tuppen was suffering from a degree of dementia in the period that the observations were made. Nonetheless, she retained social skills.
362 Against that background, it is very clear that at least from 1991 she said many things that were plainly wrong. I have referred to them already in these reasons. But her social skills were evidently such that a particular error would not have been apparent to a listener who did not know the true situation.
363 Again, paranoid sets indisputably may be a feature of dementia. I am quite satisfied, as these reasons elsewhere reveal, that Mrs Tuppen exhibited such sets in and after 1991. The witnesses whose evidence is now under consideration gave evidence which might well be thought to provide further instances of that tendency. I refer to some of the things reportedly said by Mrs Tuppen about Robert Tuppen and Alison Inchley.
364 Further again, a consequence of dementia may be impairment of the judgmental capacity necessary for decision-making. It could not simply be said, because Mrs Tuppen said that she approved the contents of her will, that she possessed judgmental capacity. The comment could equally well be made by a person with or without such capacity.
365 When assessing Mr Scott's evidence that Mrs Tuppen appeared to understand financial information conveyed to her, I consider it is necessary to keep in mind the evidence of Dr Tofler that whilst it was his opinion in late 1991 that Mrs Tuppen would not have been able to manage her assets, he thought this should not prevent her being provided with useful information which would make her feel she knew what the situation was; that she had the ability to understand it "at her level".
366 Turning, next, to the evidence of Richard and Digby Norris, I have already concluded that the former did not have close contact with his aunt, but that
his observations of her presentation aid the plaintiffs' case. As for Digby Norris,
I have concluded that he overstated his aunt's mental acuity, professed a non-understanding of facets of her behaviour which seems pretty improbable, and played upon his aunt's concerns about Robert Tuppen. I also conclude that the case of the Boyd painting shows that in September 1992 Mrs Tuppen was able to be
led. In the event, I have not considered that the evidence of Digby Norris is as advantageous to the plaintiffs as they might have hoped.
367 I have concluded that the evidence of Mr Lukaitis and of Mrs Carrig cannot be relied upon as being wholly objective. My reasons for reaching that conclusion need not be repeated. The impact of their evidence, insofar as it was favourable to the plaintiffs, is diminished.
368 Mrs Carrig, particularly, gave evidence of things said by Mrs Tuppen about Robert Tuppen and others. I have earlier accepted that in some cases the particular things were said. The fact that they were said bears an importance which I will later discuss.
369 The evidence of Mr Zilinskas was undoubtedly objective. He did not make an assessment of testamentary capacity in April 1992. He was not asked to do so. His observations at that time revealed features of Mrs Tuppen's presentation which do not assists the plaintiffs - as I have earlier pointed out. The same applies to observations then made by Ms Gardiner. Mr Zilinskas' evidence concerning his conference with Mrs Tuppen on 17 August 1993 revealed, I think, a picture of very considerable disability. Not only that, things she said to him about several beneficiaries were quite at odds with things she said about those same beneficiaries a month later to Mr Lukaitis.
370 The effect of the lay evidence of and called by the plaintiffs was, for reasons described, not as helpful to the plaintiffs' case as might have appeared on a superficial and uncritical assessment to have been the case.
371 I go to the evidence of and called by the defendants. In that body of evidence
I consider the evidence of Ms Gunn to be important. She only interviewed Mrs Tuppen once, in November 1991. I am satisfied, as I have intimated earlier,
that Mrs Tuppen was not prevented from doing her best on that occasion.
Her performance was undoubtedly poor - evidencing forgetfulness, confusion, fabrication and misrepresentation of events and delusion (that her late husband was alive). Ms Gunn did not appreciate, I think, the full extent to which events were fabricated or misrepresented by Mrs Tuppen. That was not surprising given the retention of social skills to which Dr Wood referred.
372 I have already described and expressed conclusions about the evidence of the defendants. That evidence and those conclusions do not bear repetition. A few points only should be noted. First, the evidence of Robert Tuppen shows that his aunt made a series of criticisms and attacks upon him, from mid 1991 onwards, which were at odds with circumstances of which she must at some stage have been aware. Second, the evidence of James Allan shows that Mrs Tuppen made an attack upon Digby Norris which in substantial part was unfounded, as she must at some stage have apprehended. Third, there is no evidence objectively (whether deriving from the evidence of the doctors or evidence adduced by the plaintiffs) that any of Harold Tuppen, Mrs Inchley, James or Kenneth Allan sided with Robert Tuppen in the Board proceedings. Fourth, the evidence of Mrs Inchley as to her communications with her aunt after 1991 is not readily compatible with what her aunt reportedly said about her to Mrs Murphy, Mrs Dorum and Digby Norris. Fifth, the evidence of the defendants as to Mrs Tuppen's presentation - though sparse in respect of the period after late 1991 - is compatible with earlier observations made by the witnesses, and not inconsistent with the observations made by Ms Gunn, and Drs Wood, Tofler and Pick.
373 Thus far I have referred elliptically to certain aspects of the evidence which seem to me to be of importance. The mere fact, if it was the fact, that Mrs Tuppen acted idiosyncratically in her will-making would not bespeak want of competence. However, if Mrs Tuppen acted idiosyncratically in her will-making, if she acted in aberrant fashion from one occasion to the next, if she expressed certain comments about family members and made dispositions incompatible with those comments, if she made accusations against a family member or members which had no foundation in fact, if at the time these various events took place she was suffering from dementia, it seems to me well open to conclude that here was "absence of capacity, not merely its prejudiced exercise".
374 In my opinion each of the features to which I have referred was present in Mrs Tuppen's case. Although the relevant will was not executed until September 1992, and the codicils were not executed until December 1993 and December 1995, the dementia was present from at least mid 1991, and certain of the other features that I have identified were also present from that time.
375 I will not repeat each of the accusations, allegations and complaints made by the testatrix against family members which had no foundation in fact. I have identified them in the course of my reasons. I do repeat a representative sample. In the case of Robert Tuppen there was the allegation, or concern, that he might be making free with her money - deriving from the Phantom incident (also, wrongly, described by Mrs Tuppen as the Wizard of Oz incident) where the probability is that she had forgotten something said between her and Robert Tuppen. Then there was the accusation that he had reduced her carer's hours in 1991 - when it was something she had done. There was her accusation that he wanted her in a nursing home, wanted her money. Such a thing was never said, and could not on any objective view be inferred from his telling her about the problems with Camberlea in mid 1991. There was her constantly repeated theme that he would not provide her with financial information. He did not do so, but was not asked to do (and then not by Mrs Tuppen directly) until October 1991. He did provide, before that time, such information as she requested. Again, there was the accusation that he had entered her house when she was out, for reasons unknown. As I have earlier said, if he did enter her house in such circumstances, it is inconceivable that he left without her having been told the reason why he had visited. Presumably, forgetfulness expunged what Robert Tuppen then told her. It led to an unreasoning fear which culminated in the change of locks. Further again, there was the unfounded accusation made by Mrs Tuppen concerning the plaque erected in memory of her late husband - an accusation again deriving from forgetfulness. I mention also Mrs Tuppen's assertion, made to Ms Gunn, that Robert Tuppen had ordered her out of hospital. It was not the case.
376 In the case of Alison Inchley there were the remarks made by Mrs Tuppen to Mrs Murphy, Mrs Dorum and Digby Norris. They had no factual basis. In other circumstances they might be said to reflect rational inference. But in the presence of dementia, the suspiciousness they disclosed makes paranoid ideation a more likely explanation.
377 Harold Tuppen suffered, it appears, by being Robert Tuppen's father. Although, according to Mrs Carrig, the testatrix did not hold a strong view about him, the remarks attributed to Mrs Tuppen on 10 April 1992, as with the case of Mrs Inchley, had no disclosed basis in fact. The most likely explanation, in the circumstances of this case, is paranoid ideation.
378 Although Digby Norris benefited handsomely by the 1992 will I have accepted that in mid 1991 Mrs Tuppen said things about him to James Allan which in part at least did not reflect anything said to her by Digby Norris. One thing which I am satisfied was said placed Digby Norris in an unfavourable light.
379 Let me turn to aspects of will making. I go back as far as the codicil of April 1992. About that exercise I note these features: The variant instructions concerning Harold Tuppen, culminating in his last minute exclusion from the will. The variant instructions concerning Robert Tuppen, culminating in his exclusion from the will save in respect of the Boyd painting. The increases in the shares of David and Stanley Norris, people with whom Mrs Tuppen had little contact, and whom five months later she treated in a dramatically different way. The increase in the share of James Allan - whom she told all and sundry was "not family" - which corresponded to the increase in the share of Kenneth Allan, and which left them with shares the same as that of Richard Norris. The substantial decrease, quite unexplained, in the share of Joyce Fox. The considerable decrease in the share of Alison Inchley, the only explanation lying in the fear that to speak to her was, in effect, to speak to Robert Tuppen; that she was on her brother's side and could not be trusted. I note also the fact that Mrs Tuppen's explanation for all these changes ( made to Dr Murphy) was her dissatisfaction with Robert Tuppen; yet the Allans, considered by her (it was said) to be in the Robert Tuppen faction had their shares of residue increased.
380 I come to the will of September 1992. Within a five month period after April 1992 the benefits that would accrue on Mrs Tuppen's death to Mrs Carrig were dramatically cut back. So were the prospective benefits of James and Kenneth Allan and David Norris. Nothing had occurred in the intervening months that would explain such changes. Nothing explains the differentiation then appearing between David and Stanley Norris.
381 Also in the five month period between April and September 1992 the shares in residue of Richard Norris, Stanley Norris and Mrs Inchley were sharply decreased. Richard Norris, who had played a key part in re-arranging Mrs Tuppen's financial position, found himself with a share decreased to the same size as that of his brother Stanley. Mrs Inchley's share decreased dramatically. The share of Donald Fox, later said by Mrs Tuppen to be an invalid who needed money, was sharply reduced. After declaring a wish to exclude the entire Robert Tuppen family from her will on 8 September 1992, his two children (whom Mrs Tuppen could scarcely if at all recall in August 1993) were given shares in residue. Indeed, on 14 September 1992 Mrs Tuppen initially described Robert Tuppen's son as his brother. Meanwhile, Digby Norris, about whom uncomplimentary things had been said in mid 1992, continued to benefit to larger and larger extent; whilst the Boyd painting became his in the circumstances I have described. Again, I note, the explanation for the changes provided by Mrs Tuppen to Dr Murphy was her unhappiness with Robert Tuppen.
382 I need not much discuss the execution of the codicils. I do observe that the content of Mr Zilinksas' conference with Mrs Tuppen on 17 August 1993 and matters raised by her with Mr Lukaitis a month later reveal considerable disparity in intentions as well as considerable doubt about the identity of beneficiaries on the first of those occasions. I have previously detailed these matters. When the codicil came to be executed, hardly any of the matters raised on 17 August 1993 were dealt with. It is scarcely a response to Mrs Tuppen's sharp changes in disclosed intent over this period to say that the conference on 17 August 1993 was not for the purpose of taking instructions for changes of her will.
383 In describing the very substantial and for the most part unexplained changes in Mrs Tuppen's testamentary dispositions made by the April 1992 codicil and the September 1992 will I have addressed also the instances in which, she having made comments about family members, incompatible dispositions were thereafter made.
384 The defendants did not put their case on the footing that the variations in disposition, or any of them, were to be attributed to paranoid ideation on the part of Mrs Tuppen in respect of particular persons affected by such a set. I do not decide the case on that footing. Rather, when assessing the extent of Mrs Tuppen's dementia, her repeated misconceptions and misrepresentations of events provides evidence of the extent to which there was probable intrusion upon her powers of insight, judgment and decision-making.
385 When that is linked with the medical evidence which I accept, and with the type and extent of variations that there were in testamentary disposition - many unexplained and incompatible with things said about particular beneficiaries - I consider that a very clear picture emerges. It is of a lady whose presentation in giving instructions and in saying that testamentary documents reflected her intentions masked a serious impairment of insight, judgment and decision-making ability.
386 Assuming that at relevant times Mrs Tuppen was aware of those who might reasonably be thought to have claims upon her (a considerable assumption in itself) I cannot conclude that she had awareness of the basis and nature of those claims; or that she had the ability to evaluate and discriminate between the respective strength of those claims.
387 It would have been simple to take as a starting point Mrs Tuppen's aversion to Robert Tuppen, related it to his commencing and then continuing the Board proceeding, added her affection for Digby Norris, and explain all that transpired in her testamentary dispositions as being just a consequence of those two, explicable factors. But that would have been to deal with only a fraction of the material which was adduced - material conveying, overall, a much different picture.
388 Grant of Probate of the will dated 20 September 1992 and of the codicils dated 24 December 1993 and 22 December 1995 should be refused.
Appendix 1
TUPPEN FAMILY
William Charles Tuppen