Plaintiffs v Defendant [2009] VSC 212 | Case summary

Plaintiffs v Defendant [2009] VSC 212 | Case summary | Zoe

[208]

"The development of multiple cognitive defects and disturbances of executive function is demonstrated by Mr. Duggan's gross personal neglect and lack of hygiene, his general withdrawal from previous interests, the incoherence of his conversation as reported in various affidavits and also as expressed in the letters he had written over this period of time, which were almost completely incoherent. There were also problems with his memory, misidentification and difficulty in carrying out the normal activities of daily living.

Clearly this was a decline in the level of Mr Duggan's functioning from previous levels and there was a gradual onset of his difficulties and he slowly became worse with time. There is no other neurological or psychiatric disorder that better accounts for his symptoms.

Mr. Duggan had also developed paranoid delusions in regard to his family, in particular his belief that his grandnephew had taken his driving license from him and that his niece and nephew and his grandnephew had somehow been acting against his interests and also his belief that his nephew and niece and other relatives had not cared about him, whereas the evidence provided showed that they had kept in regular contact with him and had tried their best to make his life more comfortable. As a part of Alzheimer's disease it is quite common, perhaps in twenty-five percent of cases, that sufferers develop delusions, as was the case with Mr. Duggan, and they also frequently experience hallucinations, which again was the case with Mr. Duggan.

Lack of self-care and incoherence are early symptoms of dementia and these symptoms are most prominent when the sufferers are in a non-structured situation, in particular when they live by themselves. When they are in a more ordered environment, where there is some degree of outside supervision and control and structure, then they can appear to be more cognitively intact. I think this is why there is a difference in the description of Mr. Duggan's behaviour as presented by Mr. Brown and Mr. and Mrs. Smith, compared to the picture painted by Mr. Matthews and his wife, who only saw Mr. Duggan in a structured environment. For objective, written evidence that demonstrates the decline in Mr. Duggan's mental state in his last few years, I think one only has to look at the correspondence between himself and his neighbour, Mr. Christenson, written in the late 1990s and the correspondence with his niece, written between 2000 and 2004.

Conclusion in Regard to Testamentary Capacity:

I feel there is no doubt that Mr. Duggan was suffering from Alzheimer's Disease, with the symptoms being characterised by cognitive difficulties, lack of self care and personal neglect and the development of paranoid delusions and hallucinations. As such, I feel that he was suffering from a psychiatric illness. The nature of his delusions was such that he believed that his close relatives had on one hand been neglecting him and on the other hand had been persecuting him, in that he had believed his grandnephew Paul had been instrumental in the fact that he had lost his driving license and that the other members of his family had been interested in taking his financial assets from him.

I therefore feel it is the case that his mental illness was such that he did not understand the rightful claims that his relatives had on his estate and he subsequently left only small sums to them, with the bulk of his estate being left to various charitable organisations..."

[242]

"...There must be a memory to recall the several persons who may be fitting objects of the testator's bounty, and an understanding to comprehend their relationship to himself and their claim upon him. But for convenience the phrase "sound mind" may be adopted...I must commence, however, by telling you what these words do not mean. They do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives.......

Eccentricities, as they are commonly called, of manner, of habits of life, of amusements, of dress, and so on, must be disregarded. If a man has not contracted the ties of domestic life, or if, unhappily, they have been severed, a wide deviation from the ordinary type may be expected, and if a man's tastes induce him to withdraw himself from intercourse with friends and neighbours a still wider divergence from the ordinary type may be expected; we must not easily assume that because a man indulges his humours in unaccustomed ways that he is therefore of unsound mind. We must apply some other test than whether or not the man is very different from other men. Now the test which is usually applied, and which in almost every case is found sufficient, is this: Was the man labouring under delusion? If he laboured under delusion, then to some extent his mind must be unsound. But though we have thus narrowed the ground, we have not got free altogether from difficulty, because the question still arises, What is a delusion? On this subject an eminent judge who formerly presided in the Court, the jurisdiction of which is now exercised here, Sir J Nicholl, in the famous case of Dew v. Clark and Clark says: "One of the counsel (Dr. Lushington) accurately expressed it: it is only the belief of facts which no rational person would have believed that is insane delusion." Gentlemen, in one sense, that is arguing in a circle, for, in fact, it is only saying that a man is not rational who believes what no rational man would believe; but for practical purposes, it is a sufficient definition of a delusion...But you must of necessity put to yourself this question, and answer it: Can I understand how any man in possession of his senses could have believed such and such a thing? And if the answer you give is, I cannot understand it, then it is of the necessity of the case that you should say the man is not sane. Sir J Nicholl, in another passage, gives what appears to me to be a more logical and precise definition of what a delusion is. He says, "the true criterion, the true test, of the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion. Wherever the patient once conceived something extravagant to exist which has still no existence whatever but in his own heated imagination, and wherever at the same time, having once so conceived, he is incapable of being, or at least of being permanently reasoned out of that conception, such a patient is said to be under a delusion..."

(Sir J Hannen then referred to the grosser kinds of delusion and continued...)

"But a very different question no doubt arises where the nature of the delusion which is said to exist is this, - when it is alleged that a totally false, unfounded, unreasonable, because unreasoning, estimate of another person's character is formed. That is necessarily a more difficult question...But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character...I say there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind. Fortunately the case is rare.""

(emphases added)

[252]

"It will be seen that the references to disorder of the mind and to delusions is introduced in exposition of the third element - ability to comprehend and appreciate the claims to which the testator ought to give effect - so that questions whether there is a disorder of the mind, whether there is a delusion or whether a delusion is insane are introduced only at the level of means of proof of ability or lack of ability to comprehend and appreciate claims; it is not in principle essential that there should be proof of the presence (or absence) of a disorder of the mind, of delusions or of insane delusions. Naturally enough evidence in litigation on these subjects very usually includes medical evidence dealing with whether or not there is some disorder of the mind or insane delusion, but the question to be decided is a question of fact whether the testatrix was of sound mind, memory and understanding, essential for which are the first three elements stated by Sir Alexander Cockburn in the passage cited. The medical learning current in any age is not incorporated into the law, and it is not essential that a finding disposing of the ultimate issue should be cast in terms of any interpretation according to medical science of whether or not there is a disorder of the mind, a delusion, or an insane delusion.

This subject was reviewed in the judgment of Gleeson CJ with whom Handley JA concurred in Re Estate Ethel Gertrude Griffith (Deceased). Easter v Griffith and Ors Court of Appeal 7 June 1995. In my opinion I should treat the statement of the legal principles to be applied made by Gleeson CJ at 10 to 13 as authoritative. As Gleeson CJ made clear at 11, mental infirmity of the kind which denies testamentary capacity does not necessarily involve "insane delusions". In Shaw and Anor v Crighton a somewhat differently constituted Court of Appeal (Handley JA being a party to both decisions) on 23 August 1995 dealt with the question of testamentary capacity in what I respectfully understand to be the same sense as did Gleeson CJ and Handley JA in Easter v Griffith and Ors, although there was no reference to Easter v Griffith, as Shaw and Anor v Crighton was under reserved judgment when the decision in Easter v Griffith was published.

In my view these decisions make clear (as indeed ought earlier to have been clear) that it is not essential that a question of testamentary capacity be addressed in terms in which the relevant debate is whether there were delusions and whether they were insane, or in any terms which involve necessarily identifying a disorder of the mind in terms of current medical science. What is required of a tribunal of fact which applies a rule of law in which current medical science is not incorporated is a verdict on the evidence overall on whether the testatrix was of sound mind, memory and understanding, to establish that the testatrix understood the nature of testation and its effect (as in this case it is clear that she did), that she understood the extent of the property of which she was disposing and that she comprehended and appreciated the claims to which she ought to give effect. Those propounding the will (in this case the last two wills, with the revocation by the April 1992 will of the 1978 will) bear the onus of proof. The authorities bring out the need to advert to the fact that antipathy, even harsh and unreasonable, is not necessarily an indication of inability to comprehend and appreciate their claims of the person against whom antipathy is directed."

(emphases added)

Plaintiffs v Defendant

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